New criminal code bringing changes to marijuana penalties

“If you keep lowering penalties, you’re going to get more (drugs),” Hermann said. “In practice, the laws aren’t that strong now.”

As of now, Indiana criminal code states possession of marijuana less than 30 grams, just over an ounce, is a Class A misdemeanor, punishable by up to a year in jail. Typically, there’s conditional discharge on the first offense.

Above that, or upon a second possession conviction, is a Class D felony.

The Indiana criminal code will be updated, however, beginning July 2014, after last year’s Republican-drafted House Bill 1006 was signed into law by first-term Republican Gov. Mike Pence.

That bill will replace Indiana’s A through F felony system with a 1 through 6 system (1 being the most severe). It’s the first major overhaul of the state criminal code since 1978.

An original draft eased marijuana possession charges to a Class C misdemeanor. However, Pence reportedly said during a news conference as the General Assembly considered the bill, “I think we need to focus on reducing crime, not reducing penalties,” and the bill was amended.

Still, punishment for possession offenses will be softened from current penalties come July, with first-offense marijuana possession under 30 grams becoming a Class B misdemeanor.

According to the bill, possession with a prior conviction will drop from a Level 6 felony to an A misdemeanor. To reach a Level 6 felony charge for possession, a person would have to have a prior conviction and a possession charge of over 30 grams, according to the bill.

While penalties will be softened and a more nuanced felony system implemented, convicts will have to serve at least 75 percent of their sentences rather than the current 50 percent (those convicted of child sex crimes excluded). Hermann said the changes bring Indiana “closer to truth in sentencing.”

Hermann, who called the bill a “massive rewrite” of the criminal code, said it’s more complicated because of aggravators and enhancements that will affect the severity of a particular penalty.

The drop in misdemeanor possession charges won’t affect the prosecutor’s office much, he said, but adjustments in drug dealing penalties will be more problematic.

“Drug crimes are difficult crimes because you have people that are addicted,” Hermann said. “On the other end of that, however, you have real criminals that are bringing this stuff in. They deserve criminal penalties and deserve to be locked up.”

Alternatives to prison time for users include Drug Court (for misdemeanor offenses) or Forensic Diversion Court (for lesser felony charges). And systems like in-home drug testing help keep drug offenders out of the prison system. A court set up specifically to handle low-level drug cases has significantly helped reduce congestion, Hermann said. In 2013, the court heard approximately 900 cases, he said.

“I think that’s very appropriate with an addict. Dealers are a completely different beast,” Hermann said.

Indiana House and Senate legislative committees are debating amendments to the code, which would add other enhancements and, hopefully, toughen dealing charges, Hermann said.

Dealers lead to larger suppliers, he said. “It’s important for law enforcement’s sake and the community’s sake to keep that as a viable option,” he said.

According to the FBI Uniform Crime Report, 12,850 people were arrested on marijuana possession charges in Indiana in 2010.

According to the prosecutor’s office, Vanderburgh County courts have processed 1,512 counts of marijuana possession-related offenses between 2010 and 2013. The misdemeanor data only includes additional counts of misdemeanors. There are 600 pending cases, 262 cases were dismissed and 650 were found guilty in that time frame.

In 2013, there were 149 Class A misdemeanor cases and 162 Class D felony cases. Marijuana possession charges fell steadily from 2010 to 2013. In that time, there was a 36 percent drop in the number of such cases.

On Jan. 16, only 6.3 percent of the population at Vanderburgh County Jail had a marijuana-related offense listed as a charge on the Vanderburgh County Sheriff’s Office website. None of the 32 booked were lodged solely on a marijuana-related offense.

Full on legalization would be like giving up the fight, said Sheriff Eric Williams. But he said putting people in jail automatically for every minor drug offense is not the answer either

“There is room for changing how we deal with those that break those laws, but I’m certainly not in favor of legalizing,” Williams said.

But Hermann and Williams agree: if there were a reliable way to test for marijuana intoxication like a breath test for alcohol, more states would be legalizing marijuana.

Blood tests are performed during any serious injury or fatal car accident, Hermann said. While the psychoactive effects of marijuana can be gone within hours, THC can be measured in blood and urine samples nearly a month after smoking.

“How do we tell if you’re too high to drive or not? That, to me, is what’s going to hold it up,” Hermann said.

A combination of a blood test and field sobriety test is used in Colorado.

Almost half of states have either decriminalized marijuana or implemented a medical marijuana system, including Michigan and Illinois.

In addition to Washington and Colorado, Alaska voters are pushing for a referendum to legalize marijuana and the New Hampshire House has approved a legalization bill.

The effect of these states reforming their marijuana laws has already had an effect on Evansville, Hermann said.

“We’re going to just have to wait and see how it all goes,” he said.