Lawmakers agree medical marijuana use will be banned for South Dakota law officers under rule

Capitol News Bureau

PIERRE, S.D. (KELO) — South Dakota’s Law Enforcement Officers Standards and Training Commission can prohibit medical-marijuana use or possession by law officers and 911 dispatchers, the Legislature’s Rules Review Committee decided Monday.

The 4-2 vote to accept the commission’s package of proposed rules came despite a provision in South Dakota’s new law legalizing medical marijuana that says state boards and commissions can’t penalize licensees for legally using it.

Paul Bachand, the commission’s attorney, cited the federal law that lists marijuana as a controlled substance. Under questioning by Representative Ryan Cwach, who participated by video link, Bachand (pronounced buh-shawn) said he didn’t look at other states regarding law enforcement and medical marijuana.

The rules committee’s four Republicans — Representative Jon Hansen and Kevin Jensen and Senators Jean Hunhoff and Timothy Johns — voted to accept the package. Senate Democratic leader Troy Heinert joined Cwach (pronounced swock) in opposing it.

IM 26 takes effect July 1. Approximately 2,000 officers and 400 dispatchers are certified in South Dakota, according to Chad Mosteller. He is the commission’s executive secretary and oversees the state’s academy for training law enforcement officers.

Bachand said there could be problems if a law officer was involved in a shooting and immediately tested positive for marijuana in the officer’s system afterward. Bachand said federal law prohibits possession of a firearm by a person who is using or is addicted to a controlled substance.

“We’re comfortable with the language that we’ve included in here,” Bachand said. “Representative, i understand the dichotomy you present.” he told Cwach. “I understand your issue as it relates to that. We’re comfortable with this being in there.”

Asked Cwach, “It conflicts with the law, doesn’t it?”

Bachand replied, “It does not conflict with federal law. And then we have a question –“

Cwach interjected, “But it conflicts with our state law that the voters passed, right?”

“Well,” Bachand answered, “I learned long ago from good lawyers not to concede certain things in front of any committee, and so without being rude to the good representative, I will not be in a position of conceding that today. I don’t say that to be rude, however.”

Cwach noted, “We’re not the first state to use, to have medical marijuana. I’m curious if you looked at how other states and their law enforcement agencies handle medical marijuana.”

Bachand was shaking his head no again as Cwach finished the question. “I did not,” Bachand said.

Heinert said he was troubled that Bachand didn’t look at other states that have medical marijuana. Heinert said he’d prefer Bachand go back and work on a better rule proposal. “I don’t see the proposal we have right now as being workable for the law enforcement officers of our state,” Heinert said.

But Johns, a retired circuit judge, said employers under some circumstances can restrict the use of drugs by their employees whether legal or illegal. “I think the standards commission did an excellent job in revising the standards relating especially to the use of force, and so I do heartily support these,” Johns said.

Jensen said it is illegal for a licensed firearm dealer to sell a gun to a person who admits on a required federal form to being a user of marijuana or other controlled substances.

Bachand said a law enforcement officer could lose state certification if she or he had a physician’s prescription for marijuana and used it. “It is still illegal under federal law,” he said.

Cwach, a lawyer, pointed out that the new rules also don’t require that notice of the investigation results be provided to the person who filed the complaint against a law enforcement officer about the officer’s behavior.

Mosteller said, “When the investigation is complete, we will let them know.”

Cwach asked whether that needed to be in rule. Bachand shook his head no as Cwach finished the sentence.

Bachand then responded, after a few seconds of more thought, “We didn’t think that was necessary to put in the rule, and perhaps that should have been put in the rule. I can see your point as it relates to that.”

Replied Cwach, “My biggest complaint I hear from my constituents is that government is not responsive to their complaints. That certainly can create a perception here.”

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