Position Statement


Utah law allows a public entity to provide a brief statement about a public entity’s position on a ballot proposition and the reason for that position. In order for our association to be in compliance with state law, we will not be making additional comments or statements on Proposition 2.

 

POSITION STATEMENT

Proposition 2, Utah Medical Cannabis Act

The Utah Chiefs of Police Association is opposed to any Proposition or legislation that prevents law enforcement from being able to investigate and prosecute the illegal use of marijuana in our communities. Proposition 2 is a loosely written act which, in effect, opens the door for the use of marijuana by anyone, in any form, for any reason. Our opposition does not mean that, with the proper controls and safeguards, we would oppose legislation that would allow the use of cannabinoids for those who have a legitimate medical need. However, after many discussions about the numerous situations that are likely to occur, we have concluded that Proposition 2, whether intended or not, will likely bring recreational use of marijuana into the State of Utah. For further information on how we came to our conclusions, please read the explanations with scenarios included after this statement.

Unlike all other Schedule I and Schedule II drugs used for medical conditions, Proposition 2 exempts practitioners who prescribe cannabis from licensure sanctions as well as all civil and criminal legal responsibility. There is nothing law enforcement or anyone else can do about a medical practitioner who recommends treatment with marijuana for people who don’t qualify. The act classifies violations by dispensary agents and users as infractions punishable only by a $100 fine, even for those who continue to violate over and over again. Without the threat of criminal legal consequences or even escalating fines, users have less deterrence for violating the cannabis act than they do for speeding.

Proposition 2 establishes that law enforcement does not have probable cause to question a subject, regardless of age, based solely on his/her possession of marijuana. It prohibits officers from accessing the electronic verification system except for traffic stops or if the officer obtains a warrant. It mandates that all records related to the purchase of marijuana that are maintained in the inventory control system be removed within 60 days or less. It forbids state and local law enforcement from cooperating with the federal government on cases related to the act. Restrictions of this nature essentially tie the hands of law enforcement to the point that any attempt to enforce laws regarding marijuana, obtained in any manner and used for any purpose, would be pointless. Even more troubling, law enforcement will have less latitude in protecting our youth from illegal marijuana use, than we do illegal tobacco and alcohol use.

As an association, the lack of clarity contained in the language, the lack of legal repercussion for those who prescribe, dispense, or use medical cannabis illegally, and the stripping of authority and limitations placed on state and local government are the most concerning as they impede our ability to carry out our duties and ensure public safety. However, in the interest of moving forward on this issue, the Utah Chiefs of Police Association supports further research and consideration for the use of medicinal cannabis in addition to CBD oil, which is already legal in the State of Utah and currently available for use. With that noted, we would urge lawmakers, community leaders, and citizens to work together to pass laws that are effective and sensible for all people of the State of Utah, especially our youth.

Our Position Explained

Who Qualifies

Under the act, medical practitioners can recommend cannabis for individuals with a qualifying illness. Included in the list of qualifying illnesses is chronic pain. Since pain is subjective with no way to measure or even confirm, virtually anyone can make that claim to obtain a medical card for cannabis.

Reference: 26-60b-105(1)(k)

 

Everyone Has a Card

Scenario: An officer comes across an individual who is using marijuana. Because of a “rebuttable presumption”, the officer has no basis to ask the individual if he/she has a card. This means anyone of any age –with or without a qualifying illness or card– can possess, ingest, or grow cannabis without the fear of being asked to produce their card and without civil or criminal legal ramifications. The same is true for those who grow marijuana under the Act. Even if the individual divulged that he/she left the card at home, the officer would have no way to verify this because the officer can only query the electronic verification system for traffic stops or if a warrant to query the system has been obtained.

References:

26-60b-204.(3) If an individual possesses cannabis or a cannabis product in compliance with Subsection (1), or a medical cannabis device that corresponds with the cannabis or cannabis product:

(a) there is a rebuttable presumption that the individual possesses the cannabis, cannabis product, or medical cannabis device legally; and

(b) a law enforcement officer does not have probable cause, based solely on the individual’s possession of the cannabis, cannabis product, or medical cannabis device, to believe that the individual is engaging in illegal activity.

4-41b-303.(2) If an individual handling cannabis, a cannabis product, or a medical cannabis device at a cannabis production establishment, or transporting cannabis, a cannabis product, or a medical cannabis device, possesses the cannabis, cannabis product, or medical cannabis device in compliance with Subsection (1):

(a) there is a rebuttable presumption that the individual possesses the cannabis, cannabis product,

or medical cannabis device legally; and

(b) a law enforcement officer does not have probable cause, based solely on the individual’s possession of the cannabis, cannabis product, or medical cannabis device in compliance with Subsection(1), to believe that the individual is engaging in illegal activity.

26-60b-103.(2) The electronic verification system described in Subsection (1) shall:

(e) provide access to state or local law enforcement during a traffic stop for the purpose of determining if the individual subject to the traffic stop is complying with state medical cannabis law, or after obtaining a warrant;

 

Affirmative Defense

Scenario: an officer comes into contact with someone using marijuana on the day after Proposition 2 passes. The new laws contained in the proposition won’t take effect until July 1, 2020. During the almost 2 years between the day Proposition 2 passes and the day it takes effect, an individual who asserts the diagnosis of a qualifying illness is essentially exempt from the current laws. The current law classifies marijuana possession and growing marijuana as crimes. According to the act, a person with a qualifying illness can use, posses, or manufacture marijuana during the interim without any legal repercussion, criminal or civil. The systems, processes, and personnel necessary to manage the legal use of marijuana will not be in place for some time after Proposition 2 passes. In this scenario, with no way to verify the individual’s medical diagnoses, it would be impractical for the officer to charge this person with possessing marijuana under the current law. The officer would be hard-pressed to charge the individual with a crime without knowing whether or not the individual actually committed a crime. Furthermore, since the laws under the act are not in effect, the officer cannot cite the individual for an infraction either.

Reference: 58-37-3.7.(1)Before July 1, 2020, it is an affirmative defense to criminal charges against an individual for the use, possession, or manufacture of marijuana, tetrahydrocannabinol, or marijuana drug paraphernalia under this chapter that the individual would be eligible for a medical cannabis card, and that the individuals conduct would have been lawful, after July 1, 2020.

 

Using in Public

Scenario: An officer sees someone vaping marijuana outside a restaurant. The officer approaches the individual who hands the officer his/her medical card. The officer reminds the individual that Utah law prohibits using marijuana in view of the public. The individual claims to have difficulty breathing due to anxiety. According to the act, an individual may use cannabis in public view, in a medical emergency. Without a definition of what constitutes a medical emergency, and without a way for the officer to verify this claim, the individual may use marijuana in public view without consequences.

Reference: 26-60b-204.(2)

(b)An individual may use cannabis or a cannabis product in public view in the event of a medical emergency.

 

Smoking Marijuana

Scenario: An officer sees someone smoking marijuana. According to the act, it is illegal to use devices that facilitate cannabis combustion at a temperature of greater than 750 degrees Fahrenheit and involves a flame. Legal forms are vaping, edibles, topical, and oils. If the person smoking marijuana has a qualifying illness and chooses to smoke marijuana in violation of the act, that person is guilty of an infraction, which is a $100 fine. With all the nuances of the act, it is unlikely the general public will know what is legal and what isn’t. If they do, law enforcement will be responding on a low priority infraction violation which in many jurisdictions has a significant delay. The light penalty coupled with the low chance of being caught does little to deter people from smoking marijuana.

Reference: 58-37-3.6b.(4) It is not lawful for a medical cannabis card holder to smoke cannabis or to use a device to facilitate the smoking of cannabis. An individual convicted of violating this section is guilty of an infraction.

 

Our Hands Are Tied

In addition to the limitations placed on law enforcement for accessing the system, the act mandates purchase records be removed in 60 days or less from the electronic verification system. If an officer stops a car that has a significant quantity of marijuana in it, the officer can query the electronic verification system. With the purchase records only going back 60 days at the most, it would be difficult for law enforcement to investigate individuals with cards for illegal distribution. If an officer can’t track consumption by a user, it would be difficult to know if the person is stockpiling large quantities for possible distribution. If illegal distribution is suspected, we cannot investigate for federal law violations or even pass the information onto a federal agency to investigate. The act forbids state and local law enforcement from investigating violations of federal law and prohibits collaboration or cooperation with federal agencies. An individual could supply an entire community with marijuana without fear of retribution at a state or local level, as long as he/she had a medical marijuana card. If Proposition 2 passes, state and local law enforcement won’t have the authority to address the illegal distribution of marijuana occurring in the communities we are sworn to protect.

References:

26-60b-103.(2) The electronic verification system described in Subsection (1) shall:

(c) connect with an inventory control system used by a cannabis dispensary to track, in real time, and to archive for no more than 60 days, purchase history of cannabis or a cannabis product by a medical cannabis card holder, including the time and date of the purchase, the quantity and type of cannabis or cannabis product purchased, and any cannabis production establishment and cannabis dispensary associated with the cannabis or cannabis product;

58-37-3.8.(1) No law enforcement officer employed by an agency that receives state or local government funds shall expend any state or local resources, including the officer’s time, to effect any arrest or seizure of cannabis, or conduct any investigation, on the sole basis of activity the officer believes to constitute a violation of federal law if the officer has reason to believe that such activity is in compliance with the state medical cannabis laws, nor shall any such officer expend any state or local resources, including the officer’s time, to provide any information or logistical support related to such activity to any federal law enforcement authority or prosecuting entity. (2) No agency or political subdivision of Utah may rely on a violation of federal law as the sole basis for taking an adverse action against a person providing professional services to a cannabis dispensary or a cannabis production establishment if the person has not violated the state medical cannabis laws.