Bracing For Cannabis

Substance abuse.

Two marijuana measures helped create high voter turnout among South Dakotans in this month’s general election, a Sioux Falls lobbyist says.

In a Zoom meeting, David Owen spoke Tuesday to Yankton Area Chamber of Commerce members and local media. He serves as president of the South Dakota Chamber of Commerce and Industry, which actively campaigned against Amendment A, which legalized recreational marijuana.

“We had 74% turnout statewide, with nine counties breaking 80% turnout,” he said. “As you would expect, you had the presidential race at the top (for votes cast). But the ballot measures came in next. More people voted on the ballot issues than the U.S. House race.”

South Dakota, a traditionally conservative state, made national news when voters approved both Amendment A and Initiated Measure 26 (medical marijuana).  The Rushmore State became the first to pass both measures in the same election.

South Dakota voters also passed Amendment B to allow sports betting in Deadwood. Under federal law, tribal casinos are also allowed to offer the same gaming offered elsewhere in a state.

With both recreational and medical marijuana now South Dakota law, where does the issue go from here?

Both marijuana laws become effective July 1, 2021. In the meantime, the measures will go through the Legislature and possibly the courts.

“Nothing will happen fast. We all have to stay calm — without marijuana,” Owen said, tongue in cheek.

He outlined the possible scenarios in the coming months.

South Dakota legislators can’t change the recreational marijuana law because it’s a state constitutional amendment, Owen said. However, the measure could face a court challenge because it addresses multiple subjects, including medical marijuana and industrial hemp.

“But we (the South Dakota Chamber) aren’t going to be leading that effort,” he said of a court challenge.

Because it’s an initiated measure, the medical marijuana law could be altered or even repealed, Owen said. “My belief is that you will see some tries for some restrictions,” he said.

At the state level, two South Dakota state agencies — the Department of Revenue and the Department of Health — are developing rules for marijuana.

Owen gave an overview of what the recreational marijuana law does — and doesn’t — mandate for businesses and other employers.

The amendment does not require employers to permit or accommodate marijuana use, and it doesn’t affect an employer’s ability to restrict its use by employees. Businesses can still refuse to hire an applicant for a failed drug test and to fire a current employee for a failed drug test.

Under Amendment A, a driver cannot operate a motorized vehicle while under the influence of marijuana, Owen said. “But there are no tests for being under the influence of marijuana. THC isn’t the same as alcohol. There isn’t a measure for impairment. Also, THC stays in your system long after use,” he said.

Currently, marijuana remains against federal law, Owen said. However, the landscape could change greatly if current efforts are successful in making marijuana legal at the federal level, he said.

On the Zoom meeting, Yankton attorney Mike Stevens — who will also serve as a District 18 House member in the next Legislature — shared his experiences with clients charged with driving under the influence of marijuana.

Prosecutors have looked at the level of THC in the defendant’s system and used it as a benchmark in deciding whether to press charges, Stevens said. “There is nothing in the statute that says what that level is, but in the past, that (benchmark) is what they’ve been using,” he added.

Owen said he learned more about other states’ approaches when he was interviewed by national journalists on South Dakota’s ballot measures.

Some states have tried to tie a certain level of grams with being intoxicated, Owen said. In other cases, courts have rejected those measures because there wasn’t a cause-and-effect for marijuana, such as blood-alcohol content (BAC) for other intoxicants, he added.

Some states have reported a significant rise of accidental THC poisoning, Owen said. The person didn’t know the level ingested and, in a number of cases, required emergency-room care, he added.

A South Dakota marijuana advocate said most states carry the requirement that the marijuana be packaged so it’s not attractive to children, Owen said. However, that doesn’t remove the chance of children accidentally coming across it, he said.

As far as state revenue, recreational marijuana is subject to a 15% excise tax and a sales-and-use tax, Owen said. Medical marijuana is subject to the sales-and-use tax because it’s an over-the-counter drug and not a prescription, he added.

Owen provided revenue estimates for South Dakota, but he said the state also needs to factor in the start-up costs, social costs and additional law enforcement and court costs.

On the Zoom meeting, Yankton Superintendent Wayne Kindle asked about the allocation of marijuana revenues for education.

Those same questions were raised about the video lottery with dissatisfaction among a number of lawmakers and educators on how those funds were distributed, Owen said. The experience has led lawmakers and others to ask whether marijuana revenues would be diverted to the general fund or other uses, he added.

The state also needs to deal with increased costs for medical and mental health services associated with marijuana usage, Owen said. Those expenses remain to be seen.

In the end, South Dakota may not see an immediate influx of net revenue at first, Owen said. The state has no track record of its own, he added.

“You’ve got three or four years before we know the answer,” he said. “As I said during the campaign, don’t spend it until you’ve got it. You need to be cautious.”

Recreational marijuana passed 54-46%, with the outcome uncertain until the final election count, Owen said. On the other hand, medical marijuana enjoyed strong support across South Dakota from the very beginning and received 70% of the vote for easy passage. IM 26 passed in all but three counties in the state.

“It gives true meaning to the phrase “high plains,’” he said jokingly.

As South Dakota enters a new chapter in its history, many questions remain and many answers may not be known for years, Owen said.

“We make people aware we’re going to be dealing with this for some time,” he said.

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