ALBANY — District Attorney P. David Soares said he will no longer prosecute simple possession of marijuana cases.
But, since it is a state and federal crime, that doesn’t mean if you have pot in your possession you won’t get arrested — or have your stash confiscated by police.
“It is our job in law enforcement to enforce the laws that the legislature has adopted,” said Cmdr. Adam Hornick of the Bethlehem Police Department. “Marijuana remains a Schedule I controlled substance and is still illegal federally. Our job is to work with the community and our law enforcement partners to discuss the potential regulation, not legalization of marijuana. We will continue to re-evaluate this policy and incorporate it into our work.
Colonie police feel the same, said Lt. Robert Winn, and will not take an official stand on the new policy. There will also not be a change in how the department polices marijuana crimes.
“The possession of marijuana is illegal, per the New York State Penal Law, and persons found in possession of marijuana will be subject to arrest by the Colonie PD,” Winn said.
Soares new policy will kick in on Dec. 1. Also, his office is accepting applications under a Clean Slate program to have past marijuana possession convictions expunged and is looking to have judges dismiss pending cases that fit a certain criteria.
He said his office will decline to prosecute cases that only involve individuals arrested with less than two ounces of marijuana and that do not have any aggravating factors, like other crimes associated with the arrest.
He said the policy was formulated after a series of public meetings — and solicited input on his website — on what the public thinks should happen as New York moves closer to following other states and legalizes marijuana for recreational use.
The “vast majority” of responses indicated a desire to see a shift in the legal status of recreational adult use marijuana and in the enforcement of existing laws.
The resources spent on prosecuting simple marijuana cases, he said, would be better spent on more serious drug offenses that involve cocaine and opioids like heroin and beefing up the prosecution of Driving While Ability Impaired by Drugs, including marijuana.
“As the war on marijuana comes to an end, the District Attorney’s Office has an important role in play in the process. In order to ease the transition into market regulated marijuana, we will be adopting a new policy on how to deal with low-level marijuana cases in courts throughout Albany County,” Soares said. “We will also be strengthening our vehicular crimes DWI policies to include Driving While Ability Impaired by Drugs, to best serve the public safety needs of our county residents and the thousands of drivers who traverse the many thoroughfares in and out of our jurisdiction on a daily basis.”
Driving under the influence marijuana is one of the aggravating factors mentioned above and if a person is charged with a marijuana offense in connection with a DWAI-drugs charge, the marijuana offense will stand and be prosecuted.
It also doesn’t mean a person can walk down the street smoking a joint or smoke a joint while riding in a car. It too does not apply to smoking or consuming cannabis in the presence of children.
There are currently 10 states and the District of Columbia that allow recreational marijuana for people over 21 years old — Alaska, California, Colorado, Maine, Massachusetts, Michigan, Nevada, Oregon, Vermont and Washington. Several others, including New York state, have legalized marijuana for medicinal purposes. Just 16 states have not changed marijuana laws or regulations.
Possession of marijuana, though, remains a federal crime and individually, states cannot technically legalize it even for medicinal purposes. While states can, though, make it legal under state statutes, it would take an act of Congress to make it not a crime at all.
How Soare’s new policy will be accepted by the courts is an open question. In New Jersey, the attorney general said the individual district attorneys cannot unilaterally dismiss laws still on the books.
Rather, New Jersey Attorney General Gurbir Grewal, recommends the DAs consider the “collateral damage” a conviction could mean to each individual, according to a story on the “Governing” website, a publication that caters to state and local municipalities. Such damage could mean a defendants ability to find a job, get into school or even get a loan.
“The goal should be to achieve individual justice in individual cases,” he said in a memo addressed to all of New Jersey’s county and municipal prosecutors that “Governing” cited.
Gov. Andrew Cuomo has held a series of informational meetings mostly in New York City to gauge public sentiment on the idea of legalizing marijuana statewide and now that the Democrats have the majority in the state Senate, it could happen here sooner rather than later. For the past decade the chamber has been run by Republicans, who were cool to the idea.
With any sort of regulation that comes with a change in state law comes the government’s ability to tax it.
“When you legalize it, you can regulate it. You can have revenue. You can dictate who sells it,” Gov. Andrew Cuomo is quoted as saying in September.
The governor was against using marijuana for medicinal purposes but signed a law permitting its use with a doctor’s recommendation in 2014.
A poll by Quinnipiac University found some 63 percent of New Yorkers support allowing adults to possess small amounts of marijuana for personal use.
The state Department of Health also conducted a study that culminated with the recommendation of legalizing it in this state.
“The positive effects of regulating an adult marijuana market outweigh the potential negative impacts,” according to the document released in July. “Harm reduction principles can and should be incorporated into a regulated marijuana program to help ensure consumer and industry safety.”
Typically the pros of legalization include the ability of government to control sale the product and raise millions in tax revenue. Cons include the belief marijuana is a gateway drug that will lead to heavier drugs like cocaine or heroin; driving or other activities become more dangerous after ingesting marijuana, and the drug, is not healthy.
The state Legislature will be back in session early in 2019.
