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Sen. Cale Case, R-Lander, talks about the second reading of amendments to the budget bill during the 63rd Wyoming Legislature's budget session Wednesday morning at the Jonah Business Center in Cheyenne. Blaine McCartney/Wyoming Tribune Eagle

CHEYENNE – The debate over cracking down on marijuana edibles continued in the state Senate Monday as legislators considered amendments to a bill seeking to clarify the edibles’ illegal status.

Senate File 96 earlier was amended to make it a felony punishable by up to five years in prison for anyone found in possession of three ounces or more of the edibles. Originally, SF 96 made one pound the felony cutoff.

That lower felony amount has been a point of contention. Some legislators say they are uncomfortable that it could result in a sizeable number of people being charged as felons.

To that end, Sen. Cale Case, R-Lander, introduced another amendment Monday that tried to give defendants an ability to protect themselves.

Case’s amendment would have let those charged with a felony under SF 96 provide an affirmative defense in court that the marijuana or THC content of their edibles is not more than that found in three ounces of plant material.  

In other words, if defendants were facing a felony charge, they could pay for an analysis to show the amount of the active ingredient in those edibles was not enough to amount to a felony under existing marijuana statutes.

“It seems we ought to give the person who’s being charged the chance to show that what they’re being charged with doesn’t hold up,” Case said.

His amendment was supported by other legislators who previously had said SF 96 is too punitive in its current form. But the bill’s main supporters argued to have the amendment defeated.

“I urge you to be careful here as there isn’t a hard number on the leafy form (of marijuana) as far as THC content,” said Leland Christensen, R-Alta. “To say we want the same relative amount (between edibles and plant form), are we talking about low-grade or high-grade marijuana?”

Sen. Dave Kinskey, R-Sheridan, also noted that two district court judges in the state have opted to pass on adjudicating marijuana edibles cases. Thus, unless SF 96 passes as is, edible marijuana would continue to be de facto legal in the state, he added.

“I agree that at some point we need to look at concentration,” Kinskey said. “I’d suggest the best thing to do is defeat this amendment and we’ll look at concentration again when we have the time.”

Sen. Bruce Burns, R-Sheridan, countered that Kinskey effectively had explained exactly what is wrong with the state’s existing law: It does not address potency. The result, Burns said, was to pass an overly punitive bill that would “make felons out of people who are not otherwise lawbreakers.”

“Let’s not overreact to a loophole that’s currently in the law,” Burns said.

Case agreed that THC concentration is not consistent, either in edibles or in leaf marijuana. But he argued the state, and indeed the country, already have enough people behind bars for nonviolent drug convictions, and SF 96 only would raise that number.

“You ruin people for life (with a felony conviction),” Case said. “And you wonder why they’re turned off on America! If we let this bill out without fixing it, we’ve done a great disservice to our citizens.”

But Case’s amendment failed, 17-12 against.

A second amendment, put forth by Sen. Curt Meier, R-LaGrange, fared better. It does not address the felony aspect of SF 96 but does soften the punishment for misdemeanor offenses, adding in a treatment element.

Under Meier’s amendment, a first misdemeanor conviction under SF 96 would result in a punishment of eight days in jail and/or a $300 fine.

A second conviction within three years of the first would net up to 30 days in jail and a $1,000 fine; and a third would result in up to 120 days in jail and a $3,000 fine.

Upon each conviction, Meier’s amendment would let the courts require the defendant take part in substance abuse treatment for up to a year.

That amendment passed on a vote of 18-12.

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