Senate bill would remove possesion by ingestion charge for marijuana

Chris Huber 

South Dakota lawmakers introduced a bill last week that would no longer make it illegal for someone to have marijuana in their system.

Senate Bill 129 has 17 sponsors from both Republicans and Democrats. State Rep. David Lust, R-Rapid City, is the prime sponsor in the House and state Sen. Justin Cronin, R-Gettysburg, is the prime sponsor in the Senate.

Lust said the bill is not done and amendments will be added, but the intent of the bill is to repeal the state's possession-by-ingestion law for marijuana. Physical possession of the drug would remain illegal as would ingestion of other illegal drugs. He sees the measure as a law enforcement bill that could save the state money and would put South Dakota's policies in line with those of the rest of the nation.

"When I hear possession, I think the of the potential for distribution, and obviously if the drug is already ingested that can't happen," Lust said Thursday. "There is no chance this drug would end up in the hands of a child once it has been ingested." He noted the punishment, which can include a felony charge, seemed "unduly harsh" for the crime.

Lust said there is a feeling in Pierre that the possession-by-ingestion law is leading to higher incarceration rates and parole violations. He said legislators asked for data on these types of crimes in past sessions but never received them.

South Dakota is the only state in that nation that says the existence of drugs in the body can be a felony crime. The law was passed in 2001 and upheld by the state Supreme Court in 2004. Utah has a similar provision under its consumption law, but that charge can be only a misdemeanor.

This means someone could be charged with felony possession of an illegal drug if that drug shows up in a urinalysis or blood test. With Colorado legalizing the drug for recreational use, it can also create a legal problem for vacationers who use legally in that state.

That could come into play because tetrahydrocannabinol, or THC, the main psychoactive compound in marijuana, is extremely fat-soluble and can be present in blood for weeks after the drug had been ingested.

This creates a situation in which a person could legally use the drug in Colorado and then travel back to South Dakota. Even if the users no longer feel any of the effects of the drug, the simple presence of THC in their bodies would put them in violation of the law when they cross the state line.

Lust said this bill isn't some ploy to allow for expanded marijuana use. "It's not a slippery slope, not a first step. If we are only state that has this law, we need to look into why," Lust said.

Rep. Kristen Conzet, R-Rapid City, is another sponsor of the bill. She spoke out strongly against a bill last session that would have allowed patients suffering from intractable epilepsy to use some forms of medical marijuana rich in cannabidiol, or CBD. That bill died in the House after it passed the Senate.

A bill similar to last year's CBD oil bill was introduced this week also. The bill would add cannabidiol to the list of Schedule IV controlled substances and exclude it from the definition of marijuana.

Melissa Mentele, a marijuana advocate with New Approach South Dakota, said the ingestion bill is a "good start in smart cannabis reform for our state."

"It is refreshing to see our state making choices to move forward into lessening the penalties of cannabis use," Mentele said. "With cannabis being legal in over half of the U.S., it is very sad to see children and adult patients still suffering in our state. While this is not where we need to be, it is a step forward."

Pennington County Sheriff Kevin Thom said he opposed the ingestion bill and asked of the measure: "What problem is it solving?"

He envisioned a situation in which two people smoke marijuana in a car together. Under this bill, Thom said, only the person who had the raw marijuana on him or her could be charged for the crime even though both of them were smoking it. Thom said both people in that case should be charged.

Both the ingestion and CBD oil bills are expected to be heard by the Senate Judiciary Committee next week.