Massachusetts law enforcement adapting to new reality of legal pot


Editor's note:  This article has been edited to more accurately reflect comments made by Berkshire County District Attorney David Capeless.

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Starting today, it's not whether a person possesses marijuana, but how much, how old you are and where you try to use it.

That's the watershed moment for police, who hit their beats today facing a new reality: marijuana is no longer illegal for adults in Massachusetts.

"If it's under an ounce and in your pocket, you're good to go," said North Adams Police Director Michael Cozzaglio.

But he and other police officials in Berkshire County have plenty of questions on the new law, which voters approved in a Nov. 8 ballot question. And they are waiting for guidance from the Massachusetts Chiefs of Police Association and, eventually, from the state Legislature.

"It's just too quick," Cozzaglio said of the debut of legal recreation marijuana. "In the law enforcement world we try to work methodically and work it out and prepare. We're looking for a little bit of guidance on the state side."


Berkshire District Attorney David F. Capeless said the legalization will likely put an extra burden on law enforcement, at least in the short term.

He said a large concern about the new law is what he called "the knucklehead factor," or those who presume that once in-home recreational use is allowed, anything having to do with marijuana is fully legal, when that's not the case.

Some of that may have to do with the law itself. "A lot of it is confusing," he said.

"The legislation has left a lot of ... unanswered questions," Capeless said.

The law allows possession of up to one ounce of marijuana in public — but not use in public — and possession of up to 10 ounces in a home.

The Governor's Council on Wednesday certified results of the election, paving the way for legalization as planned on Thursday. Retail sales will not be permitted until 2018 at the earliest.

It remains against the law to sell marijuana.

Starting Thursday, a person can grow up to six plants for personal use, or up to 12 plants per household. Adults 21 and over will be able to give one another up to one ounce of marijuana as a gift.

Capeless said law enforcement statewide had to deal with similar issues when possession of an ounce or less of marijuana was decriminalized in 2008 and some people equated that with full legality.

While that change did not make marijuana legal, it did change possession of an ounce or less to a civil infraction with a fine, instead of a criminal charge.

Some of the extra burden Capeless said officers may have to take on is determining weights of marijuana carried outside the home and whether it's between one ounce, which would be considered a civil infraction, or over two ounces, which is a criminal charge.

The largest concern, he said, surrounds drivers, especially younger ones who would choose to indulge and then get behind the wheel.

Capeless said those drivers often fall into one of two categories: those who don't feel smoking marijuana before driving is a problem at all and those who feel the drug's effect enhances their driving ability.

"All of which is wrong," he said.


Pittsfield Police Chief Michael Wynn said the department is taking a "wait-and-see" approach to how the law is implemented and which aspects of enforcement it may need to address.

Wynn said simple possession of small amounts of marijuana isn't something on which the department has expended a lot of energy since 2008.

"We're not anticipating much of a change," he said.

But as Capeless notes, operating a motor vehicle under the influence of marijuana remains a large concern, as it did before the change to the law.

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Wynn pointed to a lack of a certified Drug Recognition Expert (DRE) within the department and electronic equipment like a Breathalyzer to detect whether someone may be impaired by drug use.

Drug Recognition Experts are trained and certified in how to spot impairment by narcotics and which narcotics may be involved..

Wynn said the training and certification process is neither simple nor inexpensive and the department has other internal staffing issues to address first, he said.

One thing officers will have to worry less about is the lack of need to seize and destroy small amounts of marijuana, Wynn said.

In their monthly meetings, police chiefs in the county have discussed the need to take a common approach to law enforcement questions that arise with marijuana legalization.


Under the new law, college and universities reserve the right to prohibit marijuana use on their campuses.

The Massachusetts College of Liberal Arts in North Adams issued a statement Wednesday stating the new law will not change the way it deals with marijuana on its campus and it remains prohibited.

Marijuana is still considered a controlled substance at the federal level and MCLA is still bound by the provisions in the federal Drug-Free Schools and Communities Act.

"The bottom line is that while Question 4 has expanded the lawful use and possession of marijuana by adults in Massachusetts, the state universities remain obligated by federal law to ensure that there is no use or possession on their campuses," said Bernadette Alden, director of marketing and communications for MCLA, in a statement.

Similarly, Williams College in Williamstown will not be changing its prohibition policy in light of the new law, based largely on its federal classification.

"That marijuana is still considered an illegal drug federally means it is prohibited for students entirely by our code of conduct, both on and off campus," according to a statement from Williams College President Adam Falk. "That applies to students in off-campus housing, and it applies when students are engaged in college-sponsored activity away from campus. Also, it remains illegal — and against college policy — to send or receive marijuana through the mail."

"One might assume that with the new law, the college would, in its policies and practices, treat marijuana much the same as alcohol. But we have a long-standing policy against illicit drug use on campus and within the college community, and the federal government still considers marijuana to be an illicit drug," Falk said. "The college must abide by federal laws, including the Drug-Free Workplace Act and the Drug-Free Schools and Communities Act."


If a police officer suspects a person possesses more than one ounce in public, that person could see the marijuana seized by police and be issued a summons, said Cozzaglio, the North Adams police director.

"That's how I would address it," he said. "These are the kinds of guidelines we're looking for."

Someone under 21 would still be subject to the $100 civil citation for marijuana possession that became law after the drug was decriminalized. To determine that someone is a minor in possession of marijuana, an officer would check someone's age while establishing their identity.

Like Capeless, Cozzaglio believes that one of the biggest issues for police is obtaining tests that will be used to determine whether someone is operating a motor vehicle under the influence of marijuana.

"You would be impaired — let's be honest," he said. "How would you test for that?"

When in-service training begins in January for police personnel in Berkshire County, Cozzaglio expects that ramifications of the new law will be on the agenda.

"We just need some clarity. The vote is the vote," Cozzaglio said. "The people speak. We just have to be right in our decisions. How do we fairly and evenly enforce this law so everyone has the same benefit?"

The ballot question passed with 1,769,328 votes in favor and 1,528,219 votes against, according to the official tally.

Legislative leaders are considering changes to the law, which could emerge for consideration in 2017, the State House News Service reported.

On Tuesday, Senate President Stan Rosenberg said new, reduced limits on the number of plants that can be legally grown will be considered as a way to target low-level pot dealers.

Under the law as written, Rosenberg predicted they will be able to evade enforcement because of the gifting allowed.

"I suspect it's not going to be easy to have zero tolerance, even though that should be the law," Rosenberg told WCAP. "If somebody happens to walk out their house with six joints in their pocket, and just happens to bump into somebody who they give the six joints to, and they happen to put $10 on the table, or whatever it is — that may not be easy to ferret out."

Reach staff writer Larry Parnass at 413-496-6214. Reach staff writer Bob Dunn at 413-496-6249.


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