SIOUX FALLS, S.D. (KELO) — For many South Dakotans, the ever-changing marijuana landscape is very confusing. 

In 25 years, public opinion surrounding marijuana has drastically changed. State laws and real-world impacts from possessing or using the substance have lagged behind the changing tides.

In two days, medical marijuana is set to become legal in South Dakota. To use medical marijuana, South Dakotans will either need to wait until November for the state Department of Health to issue a medical card or apply for a medical card through the Flandreau Santee Sioux Reservation. Officials with the Flandreau Santee Sioux Tribe say their program will also honor reciprocity with other state and jurisdictional medical programs.

It’ll be a change for medically-qualified persons in South Dakota. In past instances, defense lawyers in South Dakota have represented patients who were prescribed marijuana from medical providers or surrounding states and were later arrested in South Dakota for breaking the law. 

“Marijuana is defined in our state statutes two separate ways,” Eric Whitcher, the Director of the Pennington County Public Defender’s Office told KELOLAND News. “They say two different things. So that’s the cause of a lot of this confusion.” 

Whitcher said one legal definition in Title 22 marijuana is “a green, leafy substance.” 

The other legal definition is under the controlled substance section, what Whitcher called the “more modern version” including “derivatives and the green, leafy substance.”

As medical marijuana starts and state lawmakers are holding meetings about future marijuana laws, Whitcher had some legal advice for South Dakotans. 

“Be very informed,” Whitcher said. “Talk to your legislators about getting this accomplished through the legislature. We really want legislation that mirrors the constitution.” 

Whitcher said if the South Dakota Supreme Court overturns a circuit court ruling invalidating Amendment A, a more clear legal definition of what marijuana truly is would be part of the state’s constitution.  

“Regardless of what happens with Amendment A, I think we need as a state to clean up these statues so people are aware what conduct is legal and what conduct is not legal,” Whitcher said. “If you have two separate definitions that are currently in place, that makes it a really high burden for the public. The law shouldn’t be that confusing.” 

South Dakota law and collateral consequences 

Currently, most South Dakota marijuana legal cases involve misdemeanor possession or consumption or felony possession or distribution. 

As a public defender in Pennington County, Whitcher said marijuana cases don’t crack the top 5 of his office’s 6,000 unique cases. He estimated his office dealt with 200 to 400 cases each year involving marijuana felonies, misdemeanors and paraphernalia charges. 

Whitcher said outside of the legal action, people prosecuted for marijuana face harsher “collateral consequences” outside of the justice system. He presented these examples to state lawmakers in an adult-use marijuana study subcommittee last week. You can view Whitcher’s presentation attached below. 

For convictions of marijuana misdemeanors, South Dakota residents or visitors can see revocation or ineligibility for professional licenses in careers like social work, insurance and medical. Other examples include not eligible for federal subsidized student aid, failed background checks with employers as well as driver’s license revocations and travel restrictions to countries like Canada. 

For felony convictions, you can’t serve in the military, privacy rights, firearms, housing assistance issue and many others. 

“We just want to make sure people are aware of what those collateral consequences are because they’re always shifting and they change every day,” Whitcher said. “They can be real landmines for folks if they aren’t aware of them.” 

‘Be informed’

Whitcher said the South Dakota Association of Criminal Defense Attorneys is asking lawmakers to implement a tiered system for penalties for marijuana. He said state laws around marijuana should be similar to those in Amendment A. The rules for Amendment A implementation have a deadline of April 2022 if the law were to stand after a ruling appealing a Hughes County Circuit Court decision.

An example of the tiered system is one person 21-years or older could legally possess one ounce of marijuana or less. He said there should be “minor penalties” if the amounts are two ounces to half of a pound and increasing penalties for larger amounts like a pound or more. 

“It’s confusing,” Whitcher said. “We as lawyers are really confused right now. It’s a confusing time.” 

As adult use of recreational marijuana remains illegal and medical marijuana becomes legal, Whitcher advised caution for people. 

“Be very mindful as these things roll out, be careful about what you’re doing,” Whitcher said. “Seek legal advice about how to make sure your conduct is in accordance with the law so you don’t find yourself either prosecuted or having some of these collateral consequences when you are truly trying to follow the law.”