Ak: Column: Officials Say Selling Pot In Alaska Isn't Legal‏

[+Malamute]

Newshawk: http://www.drugsense.org/donate.htm
Pubdate: Thu, 09 Jul 2015
Source: Alaska Dispatch News (AK)
Webpage: http://drugsense.org/url/A6I54Mm2
Column: Highly Informed
Copyright: 2015 Alaska Dispatch Publishing
Contact: letters@adn.com
Website: http://www.adn.com/
Details: http://www.mapinc.org/media/18
Note: Anchorage Daily News until July '14
Author: Scott Woodham

OFFICIALS SAY SELLING POT IN ALASKA ISN'T LEGAL YET, BUT WHAT ABOUT BUYING IT?

Thanks to everyone for having patience during Highly Informed's
hiatus. We start back up this week with an intriguing question from
"Lago Prano": "I know authorities have been saying that selling pot
is illegal, but what about buying it? Is the act of buying pot
against the law if you don't buy too much?"

This question opens up a few interesting implications for anti-drug
policy itself, but we'll keep the discussion focused on Alaska. The
short answer is no; the very act of handing someone money in Alaska
and receiving a legal amount of cannabis is not illegal for the
person handing over the money.

Although all of this is hypothetical and there has been no specific
case to test the question in an Alaska court, it appears that there
is little risk of being charged with the crime of "purchasing
marijuana." First off, Alaska statutes contain nothing explicitly
declaring the purchase itself of a controlled substance a criminal
act on the part of the buyer.

Laws intended to deter use of cannabis have historically focused on
possession rather than purchase. But with limited possession now
legal in Alaska for those over 21, that deterrent has disappeared
when it comes to allowable weights.

Cynthia Franklin, an attorney and the director of the state Alcoholic
Beverage Control Board, the agency tasked with creating an initial
framework for Alaska's legal cannabis industry, said in a phone
interview that she's not aware of any state that criminalizes the
purchase of a controlled substance.

"The laws of the states I am licensed to practice law, Texas,
Colorado and Alaska, and the federal Controlled Substances Act only
concern possession and delivery," she said.

However, Franklin's role here is that of a regulator, not a criminal
prosecutor, and she noted that whether or not buyers are acting
illegally in purchasing legal amounts of pot isn't a question the
board will be addressing.

"There are some areas where we're not going to be writing rules, and
this is one of them," she said. "This is really a criminal question."

'Try not to be paranoid'

From a theoretical standpoint, it makes sense there wouldn't be a
criminal law against an illicit controlled substance transaction
itself. Stripped down to the barest bones, a transaction is a very
abstract thing. It's just an instant, a moment in time when goods or
services and payment pass each other.

The very moment that a transaction springs into existence can't
easily be touched or recorded, and that moment may even be delayed or
obscured if there is any lag time between the time the goods are
given over and the money changes hands -- think of J. Wellington
Wimpy, the hamburger-loving character in the Popeye comic strip, who
"would gladly pay you Tuesday" for a burger today.

From a practical standpoint, gathering evidence on a hypothetically
illegal purchase of personal-use-level marijuana would also be very
difficult outside of the very moment it happens, especially since
most such illicit transactions are done with cash and don't usually
come with a receipt.

"Before, if we found two people buying and selling, we'd charge them
both. They were in possession," said Alaska State Troopers public
information officer Megan Peters in a phone interview.

But now that some amount of possession is legal for adults in Alaska,
Peters said, she couldn't provide a direct answer and that no one
would be able to answer a hypothetical. Troopers would have to treat
each situation as it happened. "At this point in time, if troopers
came upon that, they'd have to consult with the Department of Law."

"Just try not to be paranoid," she said. "It's all about the totality
of the circumstances."

Those circumstances could be anything, and Peters couldn't discuss
any specific ones. But charges of some kind would be more likely in a
hypothetical case where the totality of evidence indicated that
someone got, say, a pound of cannabis in exchange for, let's say, a
bunch of stolen firearms or off-the-books halibut. But the risk of
some sort of charges would be lower if, say, the situation is more
like troopers encounter someone at the very moment the person is
buying an eighth-ounce with money.

Substance-ive dilemma

For Franklin, the uncertainty for law enforcement gets at the heart
of a broader dilemma Alaska faces when it comes to legalized, taxed
and regulated cannabis: How can something listed as a controlled
substance be treated as a regulated product at the same time?

"I think this points out the tricky part of moving a substance from
being illegal by nature to having illegality around the substance,"
she said. "This would be more clear if we had specific criminal
provisions around marijuana like we do around alcohol."

"Alcohol is regulated substance, and heroin for instance is a
controlled substance," she clarified. "Just like alcohol, the
question for law enforcement is what conduct is happening around that
substance, rather than the possession of that substance itself. Which
is why marijuana should be outside the Controlled Substance Act. It's
not whether the marijuana is there, but what is happening around it."

Franklin mentioned Senate Bill 30 (currently before the House
Judiciary Committee after passing the Senate) as something that
intended to address the dilemma posed by the emergence of a brand-new
regulated industry. At first, among other changes, it proposed to
remove cannabis from the controlled substances act, but that original
bill changed a great deal last session and is still in process. The
current version, generally speaking, would change criminal codes
relating to cannabis, allow for a local option in established
villages, and bar cannabis-related establishments from operating in
the unorganized borough, but it would keep cannabis a controlled
substance on Alaska's schedule VI.

Franklin also said that even though a buyer is not at risk for
criminal charges, Alaskans should consider that more may be at stake
than just individual freedom. In obtaining cannabis from unlicensed
vendors before a commercial system is in place, she said, customers
may be setting back the effort to establish a regulated industry and
legal market.

"If you participate in the black market as a consumer, you are
potentially contributing to issues with the marijuana industry," she
said. "Each one of those transactions, the likelihood increases that
we won't have a marijuana industry."

As the time ticks down to the statutory deadline for Alaska's initial
system to be in place, and as the pressure increases, Franklin said,
individual consumers participating in whatever gray market exists at
the time might contribute to a result they don't want, from a larger
perspective.

And that gray market does exist, however tentatively. There have been
a number of openly operating cannabis-related or cannabis-friendly
businesses (everything from testing labs to hookah lounges), opening
doors and then voluntarily closing them after warnings from
regulators. And others, including cannabis delivery services and
other operations directed at getting cannabis to people who want it,
are operating, despite officials consistently saying there are no
such legal businesses without a licensing and regulatory framework in place.

If people can't wait for the legal framework and obtain marijuana
from unlicensed businesses, Franklin said, they risk creating
negative impressions in the minds of people still opposed to
legalized pot, and furthermore, "they are contributing to a fight in
the January 2017 legislative session about whether to repeal."

Whether that fight will happen is anyone's guess, as are the
prospects for further clarity in state law, but in the meantime and
unless something changes, the act itself of purchasing a legal amount
of cannabis is not illegal for a buyer over 21.

Have a question about marijuana news or culture in Alaska? Send it to
cannabis-north@alaskadispatch.com with "Highly Informed" in the subject line.