Fraternal Order of Police local

This letter is sent to you to share that the Fraternal Order of Police – Souris Valley Regional Lodge #7 encourages the voters of North Dakota to vote NO on Measure 3.

The Fraternal Order of Police is the largest labor representation organization for law enforcement officers in the nation. Lodge #7’s membership includes law enforcement officers from various state, county and city jurisdictions as well as correctional officers and public safety dispatchers throughout north-western and north-central North Dakota.

Upon reviewing this measure, we have grave concerns for what we predict will become an unnecessary and chaotic tempo of legal challenges, expenses to the taxpayers, as well as unintended consequences that pose a threat to public order and safety, due to the vague and odd choice of language the measure’s authors used in drafting it.

Despite proponents’ insistence to the contrary, the language of Measure 3, which states, “No person over the age of 21 shall be prosecuted in any court for non-violent marijuana related activity with the exception of the sale of marijuana to a person under the age of 21”, opens the door to any number of criminally prohibited acts from being prosecuted.

The failing in the measure is the lack of guidance or defined terms explaining how “non-violent” is to be understood and used and exactly what activity is considered to be “marijuana related”.

The North Dakota Century Code requires words not otherwise specifically defined to be used “in their ordinary sense.” Following that law, the fears that those intoxicated by marijuana use may not be prosecuted for driving under the influence are well founded. When using “non-violent” and “marijuana related activity” to evaluate, driving under marijuana’s influence is decidedly non-violent and marijuana related.

Arguably numerous other crimes are non-violent, yet still victimize people, businesses, organizations, and communities. Property crimes such as theft and vandalism, public order offenses such as disorderly conduct and prostitution to name a few are non-violent. As this measure is written, a defendant could argue any vague nexus to “marijuana related activity” as a cause, reason, or motivation to excuse the conduct.

While this may sound like a stretch to some, a defense lawyer would be ethically bound to tie up the courts with this defense until it could shake out through potentially years and multiple angled costly appeals. Existing DUI testing statutes and court restrictions already are. Proponent arguments that existing DUI laws (and therefore presumably any other non-violent crimes) would not be affected by this language tend to ignore another disturbing addition to the statute, “66-01 03 Statement of Supremacy” states “In the event of the existence of any language in the North Dakota Century Code which conflicts with the is chapter those sections are hereby nullified and repealed.”

Presently the NDCC states that voluntary intoxication is not a defense that can reduce the culpability requirements of violating a law. Meaning if the argument that a non-violent crime however loosely connected to marijuana related activity isn’t enough to argue dismissal of charges, then an argument could be made in court that someone high on marijuana was therefore not responsible/culpable in a non-violent crime, nullifying and voiding culpability of the violator, therefore requiring dismissal of charge(s). How many years of costly appeals should the taxpayers foot to find out if this defense holds water? And if it does, how much more will we have to spend to correct it in the legislature and subsequent legal challenges?

Additionally, the financial cost to the taxpayers to implement key requirements of this measure will be staggering and unsustainable. Specifically, the requirement to expunge and seal all records of “illegitimate drug convictions” within the impossible mandate of 30 days, trial expenses from the petition of someone who accuses the state of not correctly conducting the expungement (even if the state prevails), the potential payment of damages and attorney fees, have the potential to bankrupt smaller jurisdictions and cripple larger ones. Meaning, money used for provision of vital public services would be severely curtailed to pay for what amounts to the authors’ desire to simply get back at or punish the state.

Unfortunately, this punishment will be carried on the backs of the people, who ultimately will pay the taxes necessary for this flawed measure.

Those law enforcement agencies with drug detection dogs will suddenly have a resource that cost tens of thousands of dollars that will no longer be able to be used. Drug detection dogs that are trained to alert to the odor of marijuana will no longer be able to establish probable cause based upon an alert to the presence of drugs for two reasons. First if the dog is trained on detecting multiple substances including marijuana the handler has no way of knowing what the dog is alerting to, an illegal drug or the newly legally possessed marijuana. Secondly once a dog is trained to detect marijuana it can not be “untrained” or trained to ignore it. New dogs will have to be procured and handlers will have to be retrained with those dogs at an unnecessarily burdensome expense, or the communities they serve will have to go without this invaluable resource.

As written, this measure proposes that use and distribution of marijuana be on par with alcohol when it comes to use or delivery to people under 21. Unfortunately, what’s glaringly absent are the legal mechanisms that the NDCC has to reasonably license and regulate sales and usage like alcohol. So long as someone is 21 it’s basically a free for all with Measure 3. There are no testing/purity inspections or standards. No location and time usage limitations (Open alcohol containers in cars is illegal, but nothing in this measure prohibits consuming marijuana on the road). No civil liability standards for delivery to intoxicated persons who cause injury or other damages (like alcohol dram shop laws). Proponents, suddenly feeling the pressure of these questions have been recently responding by saying they will work with the legislature to change the law. If there is so much support for recreational marijuana, why not do it “right” the first time and write a sane measure now, or work with the legislature to pass a more sensible statute?

A lot of misleading information about the motivation of members of organizations such as ours, in opposing this measure is also being spread. Like law enforcement wastes time and resources targeting marijuana offenses to justify budgets or keeping open jails and prisons. The vast majority of marijuana cases charged in this state result from investigation and detection of other, often more serious, offenses. Most of these marijuana offenses are prosecuted as misdemeanors. Even felony level distribution/intent cases rarely result in substantial prison sentences. The notion that, in recent history, law enforcement and the courts are packing the jails and prisons with offenders for “a little pot” is simply untrue. Particularly with the shift in statutory drug sentencing requirements favoring probation and treatment over incarceration. Our members are not just law enforcement professionals; we are tax paying members of our communities, we coach youth sports, we seek to join in community service projects, we are your family members, friends, and neighbor North Dakotans. We are not nameless faceless members of the government seeking to needlessly lock people up to feed a “machine”. While the FOP does not support the legalization of yet another intoxicant in our communities due to the fact everywhere it is being done seeing a rise in related crime and traffic fatalities, if the people of this state insist on changing marijuana laws, we encourage them to avoid this knee-jerk and poorly thought out and dangerous measure, that will needlessly financially punish all of us.

(Executive board members Krista Mattice, Roger Hutchinson, Greg Johnson, Kenton Kossan, Aaron Moss and Ann Milerbernd)