City marijuana law of no fines, jail in use

State lawsuit on ordinance pending

Sean Nestor, shown speaking to Issue 1 supporters on election night, says the pattern of arrests and convictions since the ordinance passed sounds consistent with the law.

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Sean Nestor, shown speaking to Issue 1 supporters on election night, says the pattern of arrests and convictions since the ordinance passed sounds consistent with the law.

While Toledo’s recently adopted “Sensible Marihuana Ordinance” remains in limbo in a legal contest between Toledo and the Ohio attorney general, the part of the law abolishing jail terms and fines for possession of small amounts of pot is already being honored.

A review of cases in Toledo Municipal Court revealed 21 people have been charged with marijuana possession since voters approved the ordinance Sept. 15.

Of those, only Mariah Smith, 18, has been convicted. 

She pleaded no contest and was sentenced to no fines and no jail time.

RELATED STORY: Ohio lawmakers look into medical use of pot

In the remaining cases, defendants still are waiting for trial or authorities reduced the charge to disorderly conduct.

By a 70 to 30 percent vote, Toledo residents in September approved the citizen initiative that wrote a new ordinance into the Toledo Municipal Code aimed at decriminalizing marijuana and hashish possession. 

But citizen participation was low, with fewer than 10 percent of registered Toledo voters turning out in that election.

As in state law, both drugs are still illegal under the Sensible Marihuana Ordinance, which uses the same spelling as was already in the existing city law. 

However, the new city ordinance reduces all the penalties, no matter the quantity, to zero dollars in fines and zero time in jail.

Attorney General Mike DeWine, joined by Sheriff John Tharp and Lucas County Prosecutor Julia Bates, quickly filed suit to block sections of the law that attempt to rewrite state felony law regarding amounts of marijuana greater than 200 grams, which is a little more than 7 ounces. The attorney general’s lawsuit did not contest the parts of the ordinance abolishing fines and jail terms for misdemeanor amounts of marijuana possession.

Ms. Smith, the 18-year-old West Toledo woman who was convicted of marijuana possession, was the first to benefit from the elimination of penalties.

She was arrested Oct. 28 in the 800 block of Butler Street in East Toledo and charged because a mason jar containing marijuana was sticking out of her purse on the back seat of her car in plain view of an officer, according to court records. The officer also saw drug paraphernalia.

Ms. Smith, who lives in an apartment building on Alexis Road, pleaded no contest on Nov. 6 and was found guilty by Judge Joshua Lanzinger.

A man at her address who identified himself as her father on Thursday said she was not home and would not agree to an interview.

The attorney general’s complaint, which seeks an injunction, contends that the city has no power to amend or create felonies and that the courts have clearly ruled as invalid criminal statutes with no penalties.

“Felony laws quite simply are outside the purview of municipal ordinance,” the attorney general’s brief, signed by attorney Frederick Nelson, senior adviser to Mr. DeWine, says.

The attorney general also took issue with a “gag rule” in the law prohibiting Toledo police from reporting marijuana convictions to state agencies.

In legal briefs filed in December, lawyers on both sides of the issue debated whether Toledo voters had the power to create a new fifth-degree felony for marijuana and hashish possession, with no fines or jail terms allowed for any violations.

Lucas County Common Pleas Judge Dean Mandros on Dec. 7 challenged both sides to respond to a question: whether a law that has no penalties is really a law. He cited Ohio Supreme Court rulings stating “a statute is not a criminal statute unless a penalty is provided for its violation.”

Dan Tierney, spokesman for Mr. DeWine, said the case has been briefed and both sides are now waiting for further instructions from the judge or a ruling.

Adam Loukx, city law director, said the case is now in the hands of the judge. The city’s official position is that the law is constitutional. His office cited examples of other laws that don’t prescribe penalties.

In the city’s brief, Assistant Prosecutor Henry Schaefer defended the entire ordinance, including the gag rule and the abolition of all penalties for felony levels of marijuana possession. He pointed out that state laws covering felony and misdemeanor drug possession still apply in Toledo and can be enforced by Toledo police, as well as state police and sheriff’s deputies.

He argued that the statute provides for the confiscation of contraband, which is a penalty, and said modern attitudes toward drug use are focused more on treatment for addiction than criminal prosecution.

He said the people of Toledo have set the sanction as “fair and just in the light of a 21st century understanding of drug addiction.”

The case has also drawn some citizen comments. Henry Thompson, identified as the writer of the Toledo ordinance, argued that the Sensible Marihuana Ordinance states both jail sentence and fine for marijuana possession as zero in both cases. He also contended that the Ohio Supreme Court justices were distinguishing between civil and criminal laws.

David Daniel of Delta advised the judge that even without jail and fine, being charged and convicted of marijuana possession is penalty enough. As an example, he cited the potential loss of a student’s financial aid if convicted of a drug crime. “This is retributive punishment and so constitutes a felony,” Mr. Daniel wrote.

Toledo Police Chief George Kral issued a notice to officers Oct. 6 stating they should use their discretion in charging for marijuana violations.

“Officers are encouraged to harmonize their actions to the extent possible with the will of the people as set forth in Issue 1,” the chief said.

A review of charges filed in Toledo Municipal Court since Sept. 16 found 14 cases for marijuana filed under the Ohio Revised Code and 12 cases for drug abuse filed in Toledo Municipal Code for marijuana or paraphernalia possession.

All but one of the cases were brought by Toledo police. One was filed by University of Toledo police. Four cases were charged under marijuana statutes, but were for heroin or other drugs.

None of the arrests involved people smoking marijuana in the privacy of their home. All occurred during traffic stops or when people were being arrested for other offenses.

A few occurred in the course of an investigation into drug trafficking. One man’s home in Trilby was found with a gram of heroin, $32,000 cash, and digital scales during a search.

Some of the cases of marijuana possession were filed in connection with other charges, such as possession of a concealed knife, outstanding warrants, disorderly conduct, or driving on a suspended license.

One person was caught with pot after police responded to a petty theft complaint at Kroger, 1415 S. Byrne Rd., according to a police report. He was charged with possession of marijuana paraphernalia for having a small metal pipe in his jacket. The case has been continued in Toledo Municipal Court.

Sean Nestor, who managed the campaign for the marijuana ordinance, said the pattern of arrests and convictions since the passage of the ordinance sounds consistent with the law.

“It’s still acceptable for people to be charged. If people are not getting penalties that is the spirit of the law. There’s still somewhat of a punitive aspect to having a criminal record,” Mr. Nestor said.

Contact Tom Troy: tomtroy@theblade.com or 419-724-6058 or on Twitter @TomFTroy.