Recreational marijuana out the window for now, will prosecution be impacted for possession?

Mark Vargo on marijuana prosecution.
Mark Vargo on marijuana prosecution.(gray)
Published: Dec. 3, 2021 at 3:26 PM MST
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RAPID CITY, S.D. (KEVN) - South Dakota Supreme Court has affirmed the Amendment A, which voters approved to legalize recreational marijuana in South Dakota, is unconstitutional since it addressed more than one issue.

Pennington County State’s Attorney Mark Vargo says that it won’t change too much in the manner in which marijuana will be prosecuted, however.

He says they continue to be forward thinking in that the legislature may eventually legalize the use of recreational marijuana as well, and they’ll evaluate on a case-by-case basis due to their limited resources.

He says IM-26, which legalized medical marijuana, is in a state right now where people are acquiring cards. But, even those who don’t have cards that have marijuana in their possession may have a valid medical defense if they have a condition that would give them access to the drug.

”IM-26 did leave in a possibility of claiming a medical defense later. So, we would have to look at individual cases,” Vargo says, “and then obviously quantity. Sort of, what you’re doing with it. If you catch somebody with a half a pound of marijuana in the corner of a schoolyard, you’re much more likely to prosecute than somebody who has two joints in their ash tray.”

Vargo adds that under a hemp statute the THC content of the marijuana must be considered, and doing so requires laboratory staff and testing. Which is something he says is hard to come by.

He also says that legal matters with marijuana change quickly. Although his attorneys are adaptable, there’s a lot of coordination that happens between laboratories, law enforcement, prosecution and the court system. He says not all of them change on a dime.

”Being able to predict that, prepare for it, kind of anticipate it. All of those things require some coordination between different parts of the system. That’s one of the challenges that we always face. We don’t operate in a vacuum. It doesn’t show up on my desk and I go,” exclaims Vargo, “‘yup, we’re filing this case now!’”

Vargo referenced a case he remembers from many years ago where the prosecution used someone who smoked marijuana regularly as an expert witness to find out whether the drug came from out of the country. He says while he doesn’t know if they’ll ever do that, he brings up the circumstance to describe truly how limited their resources are to prosecute every case.

He says that’s up to the county commission.

”They need to authorize sufficient funds for me to hire those experts if they anticipate we’re going to be able to prosecute those cases,” Vargo explains, “and as with anything I have limited staff. I have a limited expert witness budget. I have to make the determination as to which ones we put those limited resources into.”

He says when they’re looking at the marijuana playing field, making those decisions is tough. Especially when things change so frequently.

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