Penalties for pot possession in Wichita would depend on where, by whom you’re caught

Where you are caught and by whom would determine what penalties you would face if voters approve Wichita’s marijuana ballot issue.

Although the ballot issue’s goal is to reduce penalties for first-time offenders over age 21, it wouldn’t have a blanket effect within Wichita city limits.

Only first-time offenders arrested by Wichita police who end up being charged in city court under municipal code would be eligible for the infraction charge proposed by the ballot issue.

The severity of punishment doled out for marijuana possession already varies under current law – depending largely on where a user is caught and which law enforcement agency makes the arrest.

If a marijuana user is found on county property, a possession crime is charged in district court – even in cases where the property falls within city boundaries – because the property is in the county’s jurisdiction.

The user is charged under the state law and is subject to its penalties because city ordinances aren’t enforceable outside the city’s jurisdiction.

A good example, District Attorney Marc Bennett said, is Sedgwick County Park.

If you drive down Zoo Boulevard, you’re subject to city ordinances, he said. Turn into the park and suddenly you aren’t bound by them anymore because that block of land is under county rule.

The same is true of the different law enforcement agencies patrolling the city. The Sedgwick County Sheriff’s Office enforces state law only. Wichita police enforce that, as well as municipal code.

The marijuana initiative would be more of the same, law enforcement officers say.

If the ballot issue passes, the infraction charge would not be available uniformly within city limits.

A first-time possession arrest by a sheriff’s deputy still would result in a misdemeanor charge, even if the offense takes place on the same city street where a first-time offender caught by a Wichita police officer would be granted an infraction.

A first-time possession arrest and charge on county-owned property also would be a misdemeanor, unless state law changes.

Second-time possession still would be a felony if a deputy is making an arrest.

Cases that originate with Wichita police but are referred to the district attorney’s office rather than to city court also can’t be charged under municipal code, Bennett said.

So offenders who face felony charges in addition to first-time marijuana possession wouldn’t be eligible to receive an infraction on the drug count.

Bennett said he neither supports nor opposes the ballot issue. But he does favor consistency in the marijuana laws from cities up to the federal level.

“This piecemeal approach to it (marijuana) makes it very difficult on law enforcement, (and) makes it difficult frankly on individuals who want to use this stuff,” Bennett said. “… That strikes me as bad public policy.”

“For the folks who are pushing this, this ballot initiative, the bottom line is it’s not going to have any legal effect. It’s going to be void – dead on arrival,” he said.

“If the whole point was to get some attention to the issue, it strikes me that they’ve done that. What they really need to do if they are serious about this is take their message to Topeka because that’s the only place that can have an effect on the state.”

Esau Freeman, leader of the marijuana-reform group Kansas for Change and the organizer for Marijuana Reform Initiative-ICT, said he thinks it’s bad public policy that “we don’t make changes the citizens are asking for.”

“There’s a lot of movement on the federal level, and I’ve heard that same bogus, or straw man, argument from the legislators in Topeka, that we need to wait until the federal government does something,” Freeman said. “Pushing it off and acting like it’s the federal level’s problem is just not dealing with it, and that’s what I think is bad public policy.”

He said the group is pushing the issue at the city, not the state level, “because that’s the only thing we can do as a citizen.”

“The city level is the only level citizens can speak,” he said. “We can’t speak on the state level – we have no power on the state level.”

The state attorney general has said he will challenge the ordinance in court if it passes because it conflicts with state law.

This story was originally published March 28, 2015 at 6:43 PM with the headline "Penalties for pot possession in Wichita would depend on where, by whom you’re caught."