A medical defense is added to legislation delaying medical marijuana in South Dakota

Capitol News Bureau

PIERRE, S.D. (KELO) — State lawmakers pressed ahead Wednesday with their plan to push back the start of medical marijuana in South Dakota to January 1, 2022. But people who said it should be legal on July 1 of this year, as nearly 70% of voters intended last fall, won a small victory.

Patients accused of marijuana crimes would be allowed to argue medical purpose as a defense starting July 1 under the version that the Senate will debate next week. The exemption wouldn’t apply for people charged with public use or while operating a motor vehicle.

“It’s the least the Senate can do,” Flandreau Santee Sioux Tribe attorney Seth Pearman said as he offered the change to the Senate Health and Human Services Committee. “Your golden ticket” was how Emmett Reistroffer of Sioux Falls described it: “We’re really just looking for crumbs here.”

Dick Tieszen, a lawyer representing the South Dakota Sheriff’s Association, said he wasn’t aware of anyone who’s been prosecuted in South Dakota for medical use. He noted defense lawyers can ask judges to take judicial notice.

State Department of Public Safety legal counsel Aaron Scheibe said the medical-defense amendment “pre-judges” what South Dakota’s medical-marijuana program could become. He directed senators’ attention to the amounts of marijuana — no more than 3 ounces or 24 grams of concentrate or six plants — that a person claiming the defense could have, so long as other conditions also were met.

Those subtle arguments against the amendment didn’t stop senators Red Dawn Foster and Blake Curd from asking that it be added. Art Rusch, a retired state judge and county prosecutor, supported them. So did Erin Tobin, a nurse practitioner: “I think it’s good for patients.” Committee chair Wayne Steinhauer took the other side. “I think this is kind of the cart before the horse.”

The 4-3 vote for medical defense opened the way for a 6-1 endorsement on the committee’s amended version of HB 1100. A variety of state government officials and lobbyists for banks, municipal governments and medical providers testified in support of the six-month delay that the House had passed last week 40-28.

The bill calls for a 21-person committee of legislators and people appointed by the governor and attorney general to try to answer many questions that IM 26 didn’t cover when South Dakota voters approved it November 3. “God be with the person who has to steer that one,” Steinhauer said.

The legislation would push back other dates in the process. State Health Secretary Kim Malsam-Rysdon said the committee isn’t intended to change the law itself: “It’s about clarifying the different aspects of what we need to do in administrative rules.”

The two sides gave their best estimates of when medical marijuana dispensaries would open for retail sales with and without the six-month delay. State Department of Revenue chief legal counsel Mike Houdyshell said rules wouldn’t be in place and licensing wouldn’t begin until the end of 2021. He said dispensaries wouldn’t begin sales until summer 2022 without the delay and late 2022 with it.

Dispensaries would open their doors in late summer 2022 without the delay, said Kittrick Jeffries of Rapid City, one of the witnesses who wants legalization to start July 1. He said that fits within the timeline that state government’s consultant had outlined.

Melissa Mentele, who led the drive to put IM 26 on the 2020 ballot, spoke too against the delay. She agreed with Jeffries. “We’d like to stay on that timeline,” she said.

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