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AG has no plans to challenge new pot ordinance

SANTA FE – Attorney General Gary King supports decriminalization of possession of small amounts of marijuana and his office has no plans to challenge Santa Fe’s brand new ordinance that does just that.

KING: Is in favor of the City Council’s action (Eddie Moore/Albuquerque Journal)

KING: Is in favor of the City Council’s action

“The city of Santa Fe definitely has the authority to enact its own ordinance, but beyond that I don’t think it would come under the purview of the Attorney General’s Office,” said Phil Sisneros, spokesman for King.

“It could, but right now we don’t see that happening,” Sisneros said. “The attorney general (King) is in favor of decriminalizing marijuana laws such as the council has done.”

Sisneros said King, the Democratic candidate for governor, notes Santa Fe is a “home-rule” city and that the City Council is “perfectly within its right” to adopt its own marijuana possession law.

Gov. Susana Martinez, King’s Republican opponent in the November general election, has said she opposed efforts in Santa Fe and Albuquerque to decriminalize pot possession.

She said last week that marijuana possession is illegal under federal law and that’s the way it should remain. She called current penalties appropriate. No new comment was available Thursday from the Governor’s Office.

The new ordinance creates a section of city law that says possession of an ounce or less of marijuana is a civil infraction punishable by a fine of no more than $25.

MARTINEZ: Pot possession should remain illegal

MARTINEZ: Pot possession should remain illegal

But Santa Fe police officers will have the discretion to give violators a city citation or charge them under existing state law, where the same offense is a criminal petty misdemeanor punishable by a fine up to $100 and up to 15 days in jail.

Santa Fe City Attorney Kelley Brennan, in an analysis prepared for the City Council, says the new ordinance doesn’t legalize pot.

Brennan writes that the ordinance “does not permit the use or possession of marijuana or prohibit an existing law enforcement practice … . It does not prohibit what is permitted or permit what is prohibited.”

The intent of the ordinance “is not to legalize, but to decriminalize” possession of small amounts of marijuana, her memo states.

Wednesday night, the council voted 5-4 to bypass referring the pot decriminalization measure to city voters – the goal of a successful referendum petition drive – and instead adopted it on the spot.

The new ordinance also makes possession of an ounce or less of pot “the lowest law enforcement priority” in Santa Fe.

According to Brennan’s analysis:

  • The city decriminalization ordinance does not conflict with a state statute that allows cities to have ordinances prohibiting drug possession and distribution but says the municipal drug law penalties “must be the same” as those in the state Criminal Substances Act. The same section says state penalties are “in addition to any civil or administrative penalty otherwise provided by law.”

There’s no conflict, Brennan concluded, because state law sanctions remain and can be imposed “in addition to a civil penalty imposed by the City” under the new ordinance, which removes pot possession from the city’s criminal code and places it within civil nuisance law.

  • The language of the new ordinance “in effect adds another tool to a police officer’s tool box,” says Brennan’s memo.

It does not “impair the exercise of police discretion, as police officers may still charge offenders under state law, but are afforded an additional opportunity to cite offenders for a civil infraction.”

The memo, citing prior court decisions, says police officers “day-to-day in response to crime are expected to exercise their own judgement within the limits of the law. They have wide discretion to decide (1) whether to take action; (2) where a situation fits in the scheme of law, rules and precedent; and (3) which official response is appropriate.”

  • Citing state law for home-rule cities and court decisions, Brennan concludes Santa Fe can enact such an ordinance because “Home Rule municipalities do not need to look to the legislature to act, but only to ensure that the legislature has not placed limits on a municipality’s power.”

Santa Fe police officials say the new ordinance is not a major change and permits the kind of discretion on possession amounts of marijuana that’s existed before for traffic stops.

The law will not be implemented until signed and delivered to the police department, police Capt. Louis Carlos said. “We have to go through the training process for everybody,” said Carlos.

“We were handed another tool for officers to implement,” he said.


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