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Columbia Missourian

Sheriff, prosecutor won't be bound by Columbia pot ordinance

By Brendan Gibbons
June 4, 2013 | 6:00 a.m. CDT

COLUMBIA — If you get caught with a small amount of marijuana in Columbia, your fate depends on what kind of law enforcement officer finds your stash.

If a Columbia police officer catches you with less than 35 grams, you could be issued a summons to appear in Municipal Court. A municipal judge could fine you up to $250 and order you to do community service or receive drug counseling.

This mild penalty is unique in Missouri to the city of Columbia and is a result of a marijuana ordinance Columbia voters passed in 2004.

But if a sheriff’s deputy or Missouri State Highway Patrol trooper catches you with marijuana, you face much stiffer penalties under state law, even if you are arrested within city limits. According to the Missouri Criminal Code Chapter 195, possession of less than 35 grams is a class A misdemeanor, punishable by up to a year in prison and a fine of $1,000.

Boone County Prosecuting Attorney Dan Knight said, to his knowledge, no one has received the maximum sentence in the 13th Circuit Court, which includes Boone County. He said the typical result is a suspended imposition of sentence, or, if the person is convicted, a $150 to $200 fine. 

The biggest difference is the effect of a conviction. A municipal ordinance violation would not result in a criminal record. A conviction in Circuit Court would. 

A local attorney has complained that the Sheriff's Department and the Boone County prosecutor are going against the wishes of most Boone County residents by prosecuting minor marijuana offenses under state law.

“When 61 percent of the city’s voters vote for something, you can be reasonably certain that the majority of Boone County residents approve of it,” said Dan Viets, general counsel for the Missouri Civil Liberties Association.

Many of Viets’ clients are Boone County residents charged with marijuana possession, and he helped lead the campaign for the municipal ordinance in 2004.

The ordinance states that if “any law enforcement officer” suspects a person of possessing a misdemeanor amount of marijuana, the case can “only be referred to the municipal prosecuting attorney, and no other prosecuting attorney.”

Because it is a municipal ordinance, the sheriff and Boone County prosecuting attorney have no obligation to follow it.

Sheriff’s deputies and Highway Patrol troopers refer all their cases to the Boone County Prosecuting Attorney’s Office. The Sheriff’s Department has made only seven arrests for misdemeanor marijuana possession since January of this year, Sheriff Dwayne Carey said. All seven of those cases were referred to circuit court.

According to state law, a sheriff’s deputy cannot enforce municipal ordinances unless the sheriff has made a written agreement with a municipality. No such agreement exists between Columbia and Boone County.

Nanci Gonder, press secretary for the Missouri Attorney General’s Office, referred to two official attorney general opinions, one from 1967 and another from 1980, to explain why sheriff’s deputies and Highway Patrol troopers in Missouri cannot enforce municipal ordinances.

The opinion from 1980, written by former Attorney General John Ashcroft, explains the difference between municipal ordinances and state law in Missouri.

“It is well settled in Missouri that prosecution for violation of a city ordinance is a civil action," Ashcroft wrote. "Although its primary object is to punish, a prosecution for its violation is civil in form, despite its resemblance to a criminal action in its effects and consequences." 

Knight could refer marijuana-possession cases to the Municipal Court. He said he will not do so because the Sheriff’s Department and the Highway Patrol have asked him not to.

“I believe this is a reasonable request because they’re not commissioned to enforce municipal ordinances,” Knight said.

Carey said there are two reasons he would not become commissioned by the city to enforce municipal ordinances. One is his interest in treating all Boone County residents the same under state law.

“By enforcing the state statute, I can ensure everyone is getting fair and equal treatment,” Carey said.

The other is not burdening his deputies with enforcing different ordinances for the 11 municipalities in the county.

“My deputies would be carrying around 11 different ticket books,” he said.

Carey said that in late January and early February he directed his deputies to step up operations within city limits. That order came after a rash of shootings in early 2013 — almost one a night — he said. He said his drug unit could chase leads from the county into the city and serve its own search warrants.

“The whole premise was to slow down some of the violent crime,” Carey said.

Carey said his department is not targeting casual marijuana users. Usually, a misdemeanor marijuana-possession charge is simply the byproduct of a traffic stop, he said.

Supervising editor is Scott Swafford.