Regina Gist, 49, of Sallisaw received a citation from an Adair County sheriff’s deputy for possession of marijuana after being pulled over Sept. 25 for an alleged traffic violation. An assistant district attorney signed off on the citation the next day, and Gist made her first court appearance Tuesday afternoon.
But upon evaluating the case himself, District 27 District Attorney Jack Thorp said he plans to toss the charge because all available evidence indicates Gist honestly believed she was following the law on possession for medical purposes in accordance with State Question 788.
The citation doesn’t say which statute the deputy accused Gist of violating. An assistant prosecutor who approved the charge told Oklahoma City television station KWTV on Tuesday that the case would proceed while her office researched applicable laws.
When asked about which law was at issue, Thorp pointed the Tulsa World to the drug possession statute last amended after voters approved State Question 780.
That initiative, which took effect last summer, made simple drug possession a misdemeanor. SQ 788, which went into effect this summer, prevents prosecution of licensed medical marijuana patients for either possession of the substance itself or for having devices used for consumption.
“Maybe she should not have received a ticket. But right now in our business it’s a brave new world,” Thorp said of Gist. “You have people who are used to issuing citations based on 780 who now have to change their way of thinking.
“So we will dismiss the case, and we’re going to get together with our law enforcement partners and we’re going to make sure that we’re doing the right thing.”
Reached Wednesday, Gist referred requests for comment to her attorney, Collin Rockett. After her Tuesday court appearance, she told KWTV she admitted having marijuana to treat chronic pain.
She said the deputy told her that possession was illegal because he didn’t know of any dispensaries in operation.
“The officer learned she had a medical marijuana card (during the stop), and the officer related to us that he asked her where she got it. And she said she bought it from her drug dealer,” Thorp said. “We don’t think that’s the intent of the change in Oklahoma law, so (the officer) believed he had probable cause and issued the citation.”
Rockett on Wednesday contested the deputy’s version of events, saying Gist, a passenger in the vehicle, declined to disclose where she obtained the marijuana despite being asked repeatedly. He said the driver was not charged with marijuana possession.
Rockett filed a motion to dismiss the case before Gist’s court date that argued for immunity from prosecution because of SQ 788, saying it, not SQ 780, should be the controlling statute.
Those without licenses who can state a medical condition, according to SQ 788, are subject to a $400 fine but no jail time if they’re found guilty of having 1.5 ounces or less of marijuana. However, unlicensed users — despite avoiding jail for having marijuana — could be jailed for possession of paraphernalia if they’re charged with that offense.
“When you have somebody with a valid patient license, they aren’t in violation of the law,” Rockett said Wednesday. “Our position was ‘What law would you prosecute her under?’”
When told the case is now set for dismissal, Rockett said: “I would commend Mr. Thorp for stepping up and doing what’s right on this situation. At the end of the day, that’s the outcome we want.”
Despite choosing to dismiss Gist’s case, Thorp said a lack of legal clarity still leaves an unanswered question on whether people such as Gist should receive citations at all when open dispensaries currently are few and far between.
He said of Gist, “I don’t think she did this right” by apparently obtaining marijuana from somewhere other than a legal dispensary when the text of SQ 788 indicates mature plants aren’t legal to have until Oct. 26.
“I’m really looking forward to the Legislature getting back in session,” Thorp said.
“In this case, we’re not trying to make a political statement. We don’t make the laws. We just follow the law. We want more of a guide to our law enforcement partners so they know what they can and can’t do on the street.”
Garrett Law Group
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