Pot Laws 2018

A lot has changed pot-wise since my high school days when we sneaked off down trails deep into the woods, clutching our tiny matchboxes filled with low-octane marijuana. Alert to the tiniest forest sounds, it seemed back then that a narc was lurking behind every tree, ready to snap on the cuffs. It was 1971 and then-President Richard M. Nixon had classified cannabis as a Schedule 1 drug, the most dangerous of all the federal drug schedules, defined by the government as a drug with no currently accepted medical use and a high potential for abuse. All these years later, federally speaking, cannabis is still a Schedule 1 drug – though you’d never know it here in Mendocino County.

Mendocino County District Attorney David Eyster says that, in his experience, federal law enforcement of cannabis in the Northern District has no teeth. “It’s almost non-existent,” he said. “I’ve sent cases that I thought were very egregious and not once have they followed up. Not once.” 

That doesn’t mean that, for public relations purposes, the feds don’t occasionally step out of their organizational silos to show us they’re still on top of it, like the time they swept in and grabbed a grower’s 99 plants. “Was the grower ever federally prosecuted?” Eyster asked, rhetorically. “No, it was just to send a message that we haven’t forgotten about this.”

Long-time criminal cannabis defense attorney Tony Serra said, “Keeping it Schedule 1 is an act of ignorance. They [the feds] put their heads in the sand and pretend — it’s an act of duplicity and ignorance.” 

Eyster basically agrees, saying that at one point he went so far as to offer to turn over all the county’s marijuana cases to a US Attorney. “Her response was, ‘We don’t have the resources to handle that’.” 

Eyster says that goes for the IRS, too — another federal silo. “Whenever we’ve called them they’ve said they’re not interested, that it ‘doesn’t meet our thresholds.’ The alphabet agencies are not helpful with anything we’re doing.” 

So, even though there’s no official cannabis hands-off agreement between the feds and the states, who tailor state law by county, practically speaking Mendo is pretty much on its own, just like it’s always been in past years. “Just leave us alone and we’ll figure out our own problems here,” Eyster said. 

Eyster says that, in general, implementation of Prop 64 has been no big deal so far, at least as far as law enforcement is concerned. He says the DA is not involved with certification, an entirely different kettle of fish. He says that part of the smooth enforcement transition to the new law’s regulations and implementation is due to the close relationship between the DA’s office and the Sheriff. Eyster says that the two departments work closely to make sure everyone involved in county law enforcement is up-to-date on changes to the new recreational cannabis law. “The sheriff and I understand the law,” he said. “It’s the same party, just different participants. Most of the problems have to do with administrative implementation – that’s where the fights are with the Board of Supes,” he added, however well intended they may be. “Do they listen to what I have to say? They haven’t,” he said.

Eyster sees cannabis law enforcement as a state’s rights issue – just with 58 local solutions by California’s 58 district attorneys. “When you have 58 solutions you have confusion,” he said, adding that this leads to big legal differences between counties. Eyster cited as an example Mariposa County, which bans marijuana grows (except for a very limited number of plants for documented medical use). “If you said ‘You can’t cultivate in Mendocino County’ they’d laugh at you,” he said. “Sure thing, Mr. Eyster!”

Tony Serra also notes the complexity of this county-by-county approach. “The counties are allowed to promulgate their own regulations. Some don’t want dispensaries in town,” he said. But he also says he thinks Prop 64 is a step in the right direction as far as cannabis is concerned. “You can grow any amount you want and it’s a misdemeanor. It’s fabulous!” he declared. But a lingering problem is still what to do with the pot after you’ve grown it, especially if you’re an uncertified grower, which most still are. 

“Accounting, taxes, and certifications are deterrents,” Serra said. “There’s no way to get it into the capitalist market, so there will always be a concurrent black market. Counties now abate and fine; they’re after the money, not after the arrests and convictions.” Serra went on to say, “They’ve turned [cannabis] over to the establishment. It now equals taxation, regulation, and control.” 

Eyster agrees that the anti-establishment attitude of the pot renegade, rooted in the hearts and minds of the earliest Mendo marijuana growers, is still very much a part of the Mendo culture. “It’s tough to rein in an industry that has prided itself on being renegades,” he said. “In the 60s that [marijuana] was one of the signs of defiance.”  

According to Eyster, in many respects greater freedom on the grower’s end has not made law enforcement’s job any simpler. He blames this, in part, on the origins of Prop 64 itself, which he says was put on the ballot by advocates and passed “largely by folks in big urban areas” who wanted to conveniently and legally buy, smoke, and ingest their marijuana at will. “We’re the ones who deal with murders based on marijuana rip-offs. We deal with home invasions, robbers after the product; we even had a plantation murder. These are violent crimes that are marijuana related,” he said. “At one point we had 13 marijuana robbers sitting in the jail at the same time.” 

Eyster said that identifying and remediating environmental damage caused by marijuana cultivation also falls to the counties and to the state’s over-extended environmental agencies. 

“The voters don’t see how deer chomping on marijuana plants are killed, how other creatures are killed in the business,” Eyster said. “Fish and Wildlife works hard, they’ve really stepped up, but they just don’t have the personnel to keep track of all the creeks and gullies in a large, rural county like Mendo. Another environmental unknown, at least so far, is how this summer’s raging fires in the county’s remote, rural areas could affect both the quality of the environment and the economics of this year’s local cannabis market. “As the Ranch fire burns out…I’d like to know how many marijuana grows got burned up in the fire,” Eyster said. “You want to talk about supply and demand? That will reduce supply, which will raise prices. Growers could make [more] money this year.” 

Out-of-area workers can also create law enforcement headaches for the county. “Mendocino County is kind of like the United Nations,” Eyster said. You’ve got the Bulgarians, you’ve got the Russians, we have people from Florida, from Chicago, from New Jersey, New Hampshire,” all chasing the dream of cannabis riches in the Emerald Triangle. “Many out-of-state entrepreneurs come to Mendo because [cannabis] prices are high in their home states,” he said. They can make big bucks selling it in the Midwest and other parts of the country where restrictive laws have kept prices high. The problem, Eyster said, is getting it back home where they can sell it for those high prices since transporting it across state lines is still a felony. “What people don’t understand is that we’re not the center of the universe,” Eyster said. “There are states in the Midwest and other areas that don’t like California marijuana showing up back there. There’s the feeling among district attorneys that ‘Look, we’re trying to control this and you’re just letting it go by.’” 

Not all marijuana opportunists are from out of state, however; you also have intra-state transplants seeking their cannabis fortunes here in Mendo. As a hypothetical example, Eyster said, “Junior needed a job so his dad bought him a marijuana plantation. Would my dad have done that? Probably not,” he laughed. “The ones who are really impoverished are trimmers,” he said, adding that they’re no different from other itinerant ag workers of years past.

Serra added that with some out-of-the-box thinking there could be profitable job opportunities for newly released felons, a perennial social problem. “Giving licenses to ex-felons would be beautiful,” he said. “It could give them good jobs and probably take them off of the streets. So it’s a beautiful thing.”

So with virtually no more cannabis-related felonies and lots more misdemeanors, are county courts backlogged with these lesser charges? Nope. “They only go to court if I charge them,” Eyster said. “I’m the gateway to the criminal justice system.” He added that the volume of marijuana cases coming down the pipeline has actually decreased because of all the new up-front work law enforcement now has to do – like filling out environmental and other reports. Tony Serra agrees. “Why should someone who is gonna get a walk-away misdemeanor hire an attorney when he knows it’s much ado about nothing?” 

“I generally review all the marijuana cases,” Eyster said. “Part of it is the facts, the person’s background, how that case fits in my analysis vis-à-vis other cases.” He says he also asks himself if one case is more or less aggravated than another. “That’s prosecutor discretion,” he said. “There’s a difference between crooks and law breakers.” 

Eyster said he has great concerns for public safety with inevitable applications to build and license cannabis cafes and lounges – a sort of next step in the general decriminalization of the industry. ‘When I was in college smoking a joint was like drinking a beer. Now it’s more like Everclear [a nearly pure-alcohol beverage currently banned in California],” he said. We have more experience with alcohol and the wineries,” he said, adding that law enforcement monitors traffic leaving winery tasting rooms. Testing for cannabis is still in its infancy. “We don’t necessarily know what the THC level is,” he explained, when a driver appears to be under the influence of a drug not alcohol. “Honey oil could be 90 percent pure THC.” And there’s no equivalent of a breathalyzer yet. “Right now blood tests go to a lab, they’re tested in Eureka, then sent on to a Sacramento lab for toxicology. It could be three, four, five months before we get the results back.” 

Eyster said that the uncertainties generated by implementation of Prop 64 versus the relatively smooth rollout of the state’s medical marijuana law are a cautionary tale. The medical marijuana law was written by the California Legislature, with all of the usual give and take of diverse interests that a legislative process entails. “Prop 64 was written by advocates,” he said, and as such it has much less clarity. The state attorney general has effectively abandoned their job of protecting the voters from misleading initiatives and their titles,” he said. “The last attorney general we had who acted like an attorney general was Jerry Brown, and much of that law’s clarity, [more than] ten years later, is because of Jerry Brown. Eyster discounts the contributions of the state’s current and recent attorneys general. “Becerra and Kamala are politicians, not attorneys general, and Gavin Newsom has no success on any of this,” he said. “I’m not a legislator and I’m not trying to be a legislator, but you have to give me something clear and enforceable so I can do my job.”

When it’s all said and done, Eyster said that the overall philosophy of Prop 64 is that you have to be a responsible adult and a considerate neighbor. “The biggest way that marijuana gets on the radar with law enforcement is neighbor complaints,” he said. “A neighbor may have asthma or something else, so at some point neighbors get upset – ‘I’ve now lost the use of my backyard’.” Adults have to step up to keep marijuana away from their kids and their plants from hanging over their neighbors’ fences. Growers have to get certified by the county and the state. People can’t use in public, expose their kids to it or take it out of state to sell it,” he said. “The folks who say, ‘This doesn’t apply to me’ – they’re the ones who have something to worry about.”

Eyster & Serra

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