Jacob Redmond
Well-Known Member
Certain provisions in Toledo's recently passed "Sensible Marijuana Ordinance" violate state law and the Ohio constitution, the state says.
Lucas County Prosecutor Julia Bates and Lucas County Sheriff John Tharp joined Ohio Attorney General Mike DeWine Tuesday in filing a lawsuit in Lucas County Common Pleas Court.
"Some provisions are illegal and unconstitutional," DeWine said of the law, which took effect Monday.
Toledo's decriminalization ordinance, which voters approved in September, removes fines and jail time – as well as other penalties such as license suspensions – for the cultivation or possession of marijuana.
It prohibits Toledo police from reporting marijuana crimes to any authority other than the city law director. Municipalities can't make laws that conflict with state law, but changing a penalty for a violation isn't considered a conflict.
DeWine said Toledo's ordinance clashes with state law regarding felonies, which county sheriffs must enforce and county prosecutors must prosecute.
The ordinance makes felony marijuana possession and trafficking a "negligible municipal offense. The city of Toledo is not empowered to establish or amend Ohio felony law," DeWine said.
DeWine pointed to a recent arrest of two people on the Ohio Turnpike in Lucas County. The suspects were charged with trafficking 223 pounds of marijuana with a street value of $1.13 million. Under Ohio law, they face a mandatory prison sentence of up to 16 years and a $30,000 fine.
"But had this been discovered by the Toledo Police Department today within the city of Toledo," he said, "they'd face no penalties at all — even if they had been on the grounds of an elementary school."
He said such a scenario was "completely unacceptable," and legal action against Toledo was the only option.
Sean Nestor, campaign manager for Sensible Toledo, the group that advanced the measure, said it was "silly" to think marijuana traffickers would bring bales of pot to schools.
"That is a loaded argument used in the extreme," he said. "It's kind of absurd to think about."
Nestor disputed DeWine's claim that traffickers with 223 pounds of marijuana would have gone unpunished in Toledo. He said Toledo's law only addresses possession of up to 200 grams, or less than half a pound, of marijuana.
But the text of the law says:
"If the amount of the drug involved equals or exceeds two hundred grams, possession of marijuana is a fifth degree felony drug abuse offense. Persons convicted of violating this section shall not be fined and no incarceration, probation, nor any other punitive or rehabilitative measure shall be imposed.
"Trafficking in marijuana shall be a fifth degree felony drug offense. Persons convicted of violating this section shall not be fined and no incarceration, probation, nor any other punitive or rehabilitative measure shall be imposed."
The lawsuit says these provisions clash with state law because they make possession of all amounts of more than 200 grams and all trafficking offenses a fifth-degree felony.
Ohio law progresses pot charges up to a second degree felony, depending on the amount of marijuana involved, and imposes additional penalties if the sale or trafficking is within 1,000 feet of a school or 100 feet of a minor.
Nestor said his group anticipated legal challenges and prepared for them.
"The ACLU of Ohio supported the issue and previously expressed their willingness to provide legal assistance," he added.
The lawsuit challenges a gag rule on Toledo police, saying it prevents officers from reporting a marijuana-related crime to the county prosecutor, or to children services agencies and all state agencies.
"Under the law, Toledo police can't report state felony drug offenses. They can only tell the city attorney," DeWine said. Even if Toledo police wanted to, they couldn't forward information to the county sheriff or prosecutor to bring charges, he explained.
It also challenges the provision that decriminalizes illegal possession of Schedule III, IV and V drugs, including certain dosages of prescription painkillers. *edit*
The lawsuit asks only to invalidate conflicting provisions and for a preliminary injunction – so Ohio law prevails while the lawsuit makes its way through the courts. It also seeks expedited consideration of the preliminary injunction.
Assistance County Prosecutor Kevin Pituch said the parties had to wait for the law to go into effect before challenging it.
"This measure was introduced under the city's charter," he explained. "There is nothing in the city's charter that would have allowed us to legally challenge it until it took effect."
Pituch said Toledo officials weren't surprised by the lawsuit and that City Law Director Adam Loukx expressed concerns when the council was considering the measure.
Pituch says Toledo police could cite offenders under the state code, rather than the new city ordinance. Toledo recently instructed officers to cite under state code for offenses including jail time so that the costs of incarceration were charged to the state rather than the city, he explained.
DeWine said the lawsuit wasn't about liking – or not liking – the law.
"That's not the issue," he said. "We believe it's illegal. We believe it's unconstitutional. This is not a happy day for any of us."
Nestor disagreed.
"You have a personal opinion and your polite way of asserting that is to use the law to try to convince people that what they want isn't possible," he said. "The sitting mayor said she supported the measure and she is responsible for defending it against the attorney general. We want to see city government follow through on not worrying about marijuana laws."
News Moderator: Jacob Redmond 420 MAGAZINE ®
Full Article: Ohio Files Suit Against City Marijuana Law
Author: Maggie Thurber
Photo Credit: Huffington Post
Website: Ohio Watch Dog
Lucas County Prosecutor Julia Bates and Lucas County Sheriff John Tharp joined Ohio Attorney General Mike DeWine Tuesday in filing a lawsuit in Lucas County Common Pleas Court.
"Some provisions are illegal and unconstitutional," DeWine said of the law, which took effect Monday.
Toledo's decriminalization ordinance, which voters approved in September, removes fines and jail time – as well as other penalties such as license suspensions – for the cultivation or possession of marijuana.
It prohibits Toledo police from reporting marijuana crimes to any authority other than the city law director. Municipalities can't make laws that conflict with state law, but changing a penalty for a violation isn't considered a conflict.
DeWine said Toledo's ordinance clashes with state law regarding felonies, which county sheriffs must enforce and county prosecutors must prosecute.
The ordinance makes felony marijuana possession and trafficking a "negligible municipal offense. The city of Toledo is not empowered to establish or amend Ohio felony law," DeWine said.
DeWine pointed to a recent arrest of two people on the Ohio Turnpike in Lucas County. The suspects were charged with trafficking 223 pounds of marijuana with a street value of $1.13 million. Under Ohio law, they face a mandatory prison sentence of up to 16 years and a $30,000 fine.
"But had this been discovered by the Toledo Police Department today within the city of Toledo," he said, "they'd face no penalties at all — even if they had been on the grounds of an elementary school."
He said such a scenario was "completely unacceptable," and legal action against Toledo was the only option.
Sean Nestor, campaign manager for Sensible Toledo, the group that advanced the measure, said it was "silly" to think marijuana traffickers would bring bales of pot to schools.
"That is a loaded argument used in the extreme," he said. "It's kind of absurd to think about."
Nestor disputed DeWine's claim that traffickers with 223 pounds of marijuana would have gone unpunished in Toledo. He said Toledo's law only addresses possession of up to 200 grams, or less than half a pound, of marijuana.
But the text of the law says:
"If the amount of the drug involved equals or exceeds two hundred grams, possession of marijuana is a fifth degree felony drug abuse offense. Persons convicted of violating this section shall not be fined and no incarceration, probation, nor any other punitive or rehabilitative measure shall be imposed.
"Trafficking in marijuana shall be a fifth degree felony drug offense. Persons convicted of violating this section shall not be fined and no incarceration, probation, nor any other punitive or rehabilitative measure shall be imposed."
The lawsuit says these provisions clash with state law because they make possession of all amounts of more than 200 grams and all trafficking offenses a fifth-degree felony.
Ohio law progresses pot charges up to a second degree felony, depending on the amount of marijuana involved, and imposes additional penalties if the sale or trafficking is within 1,000 feet of a school or 100 feet of a minor.
Nestor said his group anticipated legal challenges and prepared for them.
"The ACLU of Ohio supported the issue and previously expressed their willingness to provide legal assistance," he added.
The lawsuit challenges a gag rule on Toledo police, saying it prevents officers from reporting a marijuana-related crime to the county prosecutor, or to children services agencies and all state agencies.
"Under the law, Toledo police can't report state felony drug offenses. They can only tell the city attorney," DeWine said. Even if Toledo police wanted to, they couldn't forward information to the county sheriff or prosecutor to bring charges, he explained.
It also challenges the provision that decriminalizes illegal possession of Schedule III, IV and V drugs, including certain dosages of prescription painkillers. *edit*
The lawsuit asks only to invalidate conflicting provisions and for a preliminary injunction – so Ohio law prevails while the lawsuit makes its way through the courts. It also seeks expedited consideration of the preliminary injunction.
Assistance County Prosecutor Kevin Pituch said the parties had to wait for the law to go into effect before challenging it.
"This measure was introduced under the city's charter," he explained. "There is nothing in the city's charter that would have allowed us to legally challenge it until it took effect."
Pituch said Toledo officials weren't surprised by the lawsuit and that City Law Director Adam Loukx expressed concerns when the council was considering the measure.
Pituch says Toledo police could cite offenders under the state code, rather than the new city ordinance. Toledo recently instructed officers to cite under state code for offenses including jail time so that the costs of incarceration were charged to the state rather than the city, he explained.
DeWine said the lawsuit wasn't about liking – or not liking – the law.
"That's not the issue," he said. "We believe it's illegal. We believe it's unconstitutional. This is not a happy day for any of us."
Nestor disagreed.
"You have a personal opinion and your polite way of asserting that is to use the law to try to convince people that what they want isn't possible," he said. "The sitting mayor said she supported the measure and she is responsible for defending it against the attorney general. We want to see city government follow through on not worrying about marijuana laws."
News Moderator: Jacob Redmond 420 MAGAZINE ®
Full Article: Ohio Files Suit Against City Marijuana Law
Author: Maggie Thurber
Photo Credit: Huffington Post
Website: Ohio Watch Dog
