Riviera Creek employee Jose Arturo Malave Perez of Warren does a pre-harvest flower inspection of a marijuana plant...by R. Michael Semple

County prosecutors offer clarity on marijuana laws

By DAN POMPILI

and CHRIS McBRIDE

Staff writers

Earlier this week, the U.S. Justice Department formally moved to reclassify marijuana as a less dangerous drug, a historic shift in generations of U.S. drug policy.

A proposed rule sent Thursday to the federal register recognizes medical uses of cannabis and acknowledges it has less potential for abuse than some of the most dangerous drugs. The plan, signed by Attorney General Merrick Garland, wouldn’t legalize marijuana for recreational use. The Drug Enforcement Administration will take public comment on the proposal to move marijuana from its classification as a Schedule I drug, alongside heroin and LSD. It moves pot to Schedule III, alongside some anabolic steroids. The U.S. Cannabis Council trade group applauded the proposed change, saying the switch would “signal a tectonic shift away from the failed policies of the last 50 years.”

The Justice Department said that available data reviewed by the U.S. Department of Health and Human Services shows that while marijuana “is associated with a high prevalence of abuse,” that potential is more in line with other Schedule III substances.

The HHS recommendations are binding until the draft rule is submitted, and Garland agreed with it to start the process.

Still, the DEA has not yet formed its own determination as to where marijuana should be scheduled, and it expects to learn more during the rulemaking process, the document states.

Some critics argue the DEA shouldn’t change course on marijuana, saying rescheduling isn’t necessary and could lead to harmful side effects.

The immediate effect of rescheduling on the nation’s criminal justice system is expected to be muted. Federal prosecutions for simple possession have been fairly rare in recent years.

Schedule III drugs are still controlled substances and subject to rules and regulations, and people who traffic in them without permission could still face federal criminal prosecution.

MAHONING COUNTY VIEWS

The Mahoning County Prosecutor’s Office recently offered some perspective about how marijuana laws are being enforced locally.

Ralph Rivera, chief of the criminal division, said that for now the law is very simple:

“Right now, the law is the status quo, as it has been historically,” he said. “For Issue 2 to be effective, licenses have to be issued to companies to dispense marijuana. Without a legal dispensary, you still cannot legally possess it or purchase it.”

In November, Ohioans passed Issue 2, declaring that recreational marijuana sales and use should be legal in the state as 57% voted for its approval and 43% voted against it. But the law still gave Gov. Mike DeWine and the Ohio Legislature authority to determine how it will be rolled out.

State officials have said that applications for new dispensaries and for existing medical marijuana dispensaries to begin selling to recreational users may be available as early as June, and permits will be issued no later than September.

Until then, Rivera said, only those with a medical card are legally allowed to possess or use marijuana. He added police can still make arrests for marijuana, and the prosecutor’s office will still pursue those charges, per state law.

“We follow the law. Our marching orders are dictated by the Ohio Legislature,” said Mahoning County Prosecutor Gina DeGenova. “We don’t pick and choose the laws we enforce; we enforce them as written.”

DeGenova and Rivera said there should be no misunderstanding.

“The statutes now do not allow for any public use,” Rivera said. “Nobody can possess it (recreationally) because there is nowhere to legally purchase it, which is why you’ll still see it showing up in police reports.”

Even beyond September, though, they said users need to be aware that marijuana will be subject to the same scrutiny as alcohol, especially when it comes to driving, and businesses may still include marijuana in their drug policies.

“You still cannot operate a vehicle impaired, and employers can still have policies in place against impairment at work,” DeGenova said.

She said only Ohioans 21 and older will be allowed to purchase and possess marijuana, and

the law will always be the same for anyone under 21.

Rivera said it is also important to understand that marijuana is still illegal under federal law,

“Assuming they buy it legally and have the legal amount, they would not be subject to Ohio penalties, but they could be subject to federal prosecution should they catch the eye of federal law enforcement agencies,” he said.

TRUMBULL COUNTY VIEWS

Warren City Law Director Enzo Cantalamessa said that while reclassification implies reduced penalties, many aspects of enforcement are still ambiguous.

However, he noted clarification is needed regarding the classification of offenses like trafficking, he questioned, “What designation or what weight makes it a trafficking offense?”

As law enforcement wades through the transitional period, Cantalamessa said the exact impact of reclassifying is tough to predict.

“Well, it’s a little premature to say just because, as we all know, Issue 2 passed in the November election. In doing so, it enshrined in the Constitution the right for Ohio citizens to possess recreational marijuana so long as they’re over the age of 21,” Cantalamessa said.

“However, the body of law that’s going to govern and regulate the possession, sale, distribution, cultivation, etc. of recreational marijuana in the state of Ohio hasn’t been promulgated by the legislature yet.”

The uncertainty causes challenges for law enforcement officers who Cantalamessa said must operate under existing laws until new regulations are established.

“We have what was already on the books. So from a law enforcement standpoint, it’s challenging because on a traffic stop, for example, you’ve seen instances where someone may be in possession of marijuana during a traffic stop, and they may be aware that Issue 2 passed in November, but unfortunately, for that stop, there’s no body of law that says you’re legally in possession of it at that time,” Cantalamessa said.

Gina Buccino Thomas of the Trumbull County Prosecutor’s Office criminal division, was in agreement with Cantalmessa’s views of uncertainty until more is known of the law.

“We’re still following the laws that are enacted as of right now until the law says otherwise,” Buccino said, noting her office’s stance has “always been against ” the legalization of marijuana but they follow what the rule of law dictates.

Buccino said the only change so far has been officers aren’t able to solely rely on the smell of marijuana as probable cause to conduct traffic stops.

“Before during a traffic violation, our officers could smell marijuana and search the car and that would lead to additional drugs, loaded firearms or stolen property but now we can’t solely rely on that,” Buccino said.

She said down the road, her office will have better clarification for what the laws will entail because the Ohio Prosecuting Attorneys Association updates their office on changes. Buccino said that when changes arise, her office also coordinates with local law enforcement to ensure they’re up to date on any changes.

Have an interesting story? Contact Dan Pompili by email at dpompili@vindy.com or Chris McBride at cmcbride@tribtoday.com.Follow us on X, formerly Twitter, @TribToday.

The Associated Press contributed to this report.