Marijuana edibles on sale at a Colorado pot shop. (Hyoung Chang, Denver Post file)

Legal loophole for pot edibles has Wyoming looking to toughen laws

A proposal would require police and prosecutors to weigh an entire marijuana edible, including flour and other ingredients, and include those weights when determining the amount of marijuana for criminal charges

GILLETTE, Wyo. — Recent decisions by state judges have revealed a legal loophole in Wyoming’s marijuana law that lawmakers are trying to close.

First District Court Judge Steven Sharpe recently dismissed the case of a man accused of possessing enough edible marijuana in his car to be charged with a felony because Sharpe said the existing law specifies that possessing only the plant form of marijuana can be a felony.

Sharpe’s July 29 decision in Cheyenne was discussed Thursday in Gillette at a meeting of the Joint Judiciary Committee, which is studying how to change the law to consider edible forms of the drug.

Another Laramie County District Court judge, Catherine Rogers, testified before the committee that she must consider Sharpe’s decision when cases are brought into her court.

“I have concerns about these cases based on the rationale in my colleague’s decision letter,” she said. “But every case is always going to be weighed on the facts, and the testimony that is presented to the court in that case, and also in the way that is charged.”

The Casper Star-Tribune obtained a copy of the letter Sharpe sent to attorneys on both sides of the case.

On April 13, the Wyoming Highway Patrol stopped a motorist for an alleged traffic violation. The trooper smelled alleged marijuana and seized 1.9 pounds of alleged edible marijuana candies, cookies, bread and chocolate bars.

Wyoming law states that more than 3 ounces of marijuana in plant form is a felony, the judge wrote in a summary of the case. Prosecutors filed a felony possession of marijuana charge, but the defendant countered that he did not possess more than 3 ounces of marijuana in a plant form.

Sharpe wrote that after reading the law, he concluded prosecutors can only charge someone with felony marijuana possession when the accused possesses it in plant form and when the weight exceeds 3 ounces.

Laramie County District Attorney Jeremiah Sandburg said he has refiled the case as a misdemeanor in circuit court.

State courts have decided differently on edibles, and until the state Supreme Court rules or if the law changes, there will be varying opinions, Sandburg said.

The Joint Judiciary Committee is discussing a proposal that would require police and prosecutors to weigh the entire edible, including chocolate, flour and other ingredients, and include those weights when determining the amount of marijuana in an edible.

Possession of 3 ounces of an edible would bump a charge from a misdemeanor to a felony, with a sentence of up to five years behind bars and a fine of up to $5,000, according to the draft bill.

The committee plans additional discussion on the bill in November.

John Jolley of the Wyoming State Crime Laboratory said expensive equipment is required for testing, and it’s not easy to determine in an edible the amount of the tetrahydrocannabinol, or THC, the psychoactive component of marijuana.

“Just the analysis and detection of the presence of THC is a very intensive process,” he said.
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Information from: Casper (Wyo.) Star-Tribune