It may seem self-evident that marijuana should not be treated as contraband if it is lawfully possessed by a licensed patient. The statutes, however, suggests a contrary conclusion. We will explore arguments for and against treating lawfully possessed marijuana as contraband. At this point, there is no clear answer as to how Oklahoma’s Courts will resolve the issue.
Argument: Lawfully Possessed Medical Marijuana Is Not Contraband
“Contraband is defined as the possession or transportation of anything prohibited or excluded by law.”[i] Whether an item is contraband turns on both facts and statutes. When it is a crime to possess an item without any exceptions, the item is contraband. For example, prior to the medical marijuana statutes, marijuana could never be lawfully possessed and, as such, was per se contraband. When an item can be possessed lawfully under certain circumstances, that item is only contraband when its possession, under the circumstances, was unlawful.
Consider a bottle of beer as an example. When possessed by a minor, the bottle is contraband. The bottle is not general contraband when possessed by a person over the age of 21. If the adult opens the bottle and transports it in a vehicle, the bottle becomes contraband[ii] since it is illegal to transport an open container[iii].
Maryland (Robinson v. State[iv]), Connecticut (State v. Brito[v]) and Oregon (State v. Smalley[vi]) all treat marijuana as still contraband even when its possession is not a crime. Those States, however, all adopted statutes that converted possession of small quantities of marijuana from a criminal to a civil offense. Decriminalization is not the same as legalization, so marijuana is still treated as contraband since, as stated in Robinson, it is “illegal, but not necessarily criminal, to possess.” Oklahoma’s medical marijuana statutes expressly state that a licensed patient may “legally possess” certain quantities of marijuana. An item is not contraband if it is legally possessed.
Argument: All Marijuana is Still Legally Contraband
Normally, whether an item is contraband turns on whether the possession of the item was a criminal act for the person. When it comes to controlled substances, however, there are specific statutes that govern whether the item (controlled substance) is contraband independent of the statutes that dictate whether the person’s possession of the item is a criminal act.
Marijuana is a Schedule 1 narcotic[vii] under Oklahoma’s Uniform Controlled Dangerous Substances Act[viii] (OUCDSA). The OUCDSA contains a statute making it a crime for a person to possess a Schedule 1 narcotic.[ix] The new medical marijuana statutes are not part of the OUCDSA[x] so possession of marijuana by anyone is still possession in violation of the OUCDSA.
As a rule, a general criminal statute does not apply to a person when a more specific statute exists governing the conduct at issue.[xi] The medical marijuana statutes are specific statutes that can control over the general OUCDSA. The more specific medical marijuana statute[xii] controls over the OUCDSA criminal statute if 1) a licensed patient is involved, and 2) the amount of marijuana possessed is within the limits of that more specific statute.
If the OUCDSA criminal statute was the only basis to declare marijuana to be contraband, then marijuana would not be contraband when lawfully possessed by a licensed patient. A different contraband analysis applies to controlled substances because the OUCDSA has separate statutes regulating the person and the controlled substance itself. The OUCDSA contains a separate and specific statute stating that all Schedule 1 narcotics are contraband subject to seizure and forfeiture if possessed in a manner that violates the OUCDSA[xiii]. Possession of marijuana (a Sch. 1 narcotic) is possession in violation of the OUCDSA even when possessed by a licensed patient.
The medical marijuana statutes protect persons, not marijuana. There is a specific statute that controls to make possession of limited quantities by licensed patients lawful. No such statute exists to control over the OUCDSA statute that regulates the marijuana itself. Many other medical and recreational marijuana States have adopted statutes exempting removing lawfully possessed marijuana from more general contraband statutes. Oklahoma can adopt such a statute, but has not done so. Unless and until that happens, the OUCDSA statutes control, and marijuana is contraband.
How Will Oklahoma Resolve This Issue?
Our Courts will be asked to balance the plain language from the statutes with what some will argue was the intent of the citizens in enacting medical marijuana. This is not an uncommon dispute for Courts to resolve, but the manner of resolving the disputes varies. At times, Courts will effectively rewrite statutes to conform with they interpret was the intent of the people or legislature in enacting other statutes. In other instances, the Court will strictly apply the statutes as written and leave it to the legislature or citizenry to change the statutes if they disagree.
We will have to await a judicial resolution of this issue. There is a legal basis to treat marijuana as contraband just as there are viable legal arguments to justify treating lawfully possessed marijuana as property of the licensed patient. OMAG recommends that its Police Departments seek guidance from the Judges and/or prosecutors in your area in deciding how the Department should treat lawfully possessed marijuana.
Return to OMAG's Medical Marijuana page
Footnotes:
[i] Brinegar v. State, 1953 OK CR 135, 262 P.2d 464, 477; see also Coury v. State, 1921 OK CR 186, 200 P. 871 (contraband something that is “outlawed”)
[ii] Prince v. State, 1982 OK CR 102, 648 P.2d 48
[iii] See 21 O.S. §1220 and 37A O.S. §6-101.
[iv] 152 A.3d 661 (Md. Ct. App. 2017)
[v] 154 A.3d 535 (Conn. App. Ct. 2017)
[vi] 225 P.3d 844 (Or. 2010)
[vii] 63 O.S. §2-204(C)(12) listed as “Marihuana”
[viii] 63 O.S. §2-101 et seq.
[ix] 63 O.S. §2-402
[x] The OUCDSA is Chapter 2 of Title 63 while the medical marijuana statutes are contained within Chapter 15.
[xi] King v. State, 2008 OK CR 13, ¶7, 182 P.3d 842.
[xii] 63 O.S. §420(A)
[xiii] 63 O.S. §2-505(A).
DISCLAIMER: The process leading up to the implementation of medical marijuana in Oklahoma has been a long one and is still on-going. OMAG attorneys have sought to keep updating this webpage with the most up-to-date information possible. OMAG members seeking advice on the medical marijuana statutes should be aware that there may not be clear-cut answers on some of the issues. OMAG offers this guidance to help your municipality make informed decisions about policies and procedures, directly or indirectly related to medical marijuana, until some of the issues can be decided by the Legislature or the Courts. If you have questions or concerns about the information contained in these articles, please email one of the attorneys in the OMAG Legal Department at omaglegal@omag.org.
