South Dakota: You Can Get Busted Here For Smoking Weed In Another State
By Steve Elliott
South Dakota's Flandreau Santee Sioux Tribe announced over the weekend that it is suspending operations on its planned marijuana resort -- which had been planned for a New Year's Eve opening -- and that it has burned its cannabis crop. The tribe said it was seeking "clarification" from the federal Department of Justice to ensure "the continued success of the marijuana venture."
Federal law isn't the only roadblock for the Santee Sioux marijuana resort plan, reports Phillip Smith at AlterNet. The plan also quickly drew intense opposition from the state's GOP political establishment and law enforcement figures (no surprise there). That brouhaha has brought renewed attention to one of the strangest state marijuana laws in the United States, South Dakota's "internal possession" law.
South Dakota Atty. Gen. Marty Jackley, a Republican, warned not once, but twice, when the tribe announced its plans in June, "South Dakota law prohibits the internal and physical possession, distribution, and manufacture of marijuana by: (1) all non-Indian persons anywhere in South Dakota including within Indian country; (2) all persons, including tribal members, outside of Indian Country."
The sheriff and prosecutor of Moody County -- awhere the Flandreau reservation is located -- repeated the Attorney General's warning. "Bottom line," said Sheriff Troy Wellman, "if you're non-native, it's illegal for you to have marijuana in your system, regardless of whether you're on tribal ground."
"If you are a non-tribal member that goes over onto that property and ingests marijuana in any form, you are breaking the laws in the state of South Dakota," Moody County State's Attorney Paul Lewis flatly claimed.
They're serious. Under an "internal possession" state law passed in 2001, and unaccountably and stupidly upheld by the state's backwards-ass Supreme Court in 2004, you can be arrested and convicted for having cannabis in your system, even if you ingested in another state or another country -- or on an Indian reservation.
Someone who legally smokes weed in Colorado, for instance, and then drives to South Dakota can be charged with the crime of having gotten high elsewhere. Those who hold Minnesota or Montana medical marijuana cards, use their medicine and then travel to South Dakota can be arrested with the crime of having used their medicine where it is legal.
"I knew that in South Korea you could be arrested for the presence of metabolites for cannabis in your system, or for use outside of South Korea -- for instance in the United States," said cannabis expert Paul Stanford of the Campaign for the Restoration and Regulation of Hemp (CRRH). "But I didn't know we had that same type of enforcement law in South Dakota as we have in South Korea."
A Class 1 misdemeanor, such as "internal possession," can get you up to a year in jail and a $2,000 fine in South Dakota, the same penalty as simple pot possession. The law specifically allows for prosecuting people for "internal possession" either where they used the weed, or where it was detected.
Police typically intimidate suspects into consenting to a urine test during booking; the suspect is then hit with another criminal charge, internal possession, providing more leverage for prosecutors during plea negotiations.
"The cops took me downtown and said if I didn't piss for them, they'd stick something in my dick and take it by force," Huron resident Dave Johnson said of his 2003 internal possession bust. "They were going to take it forcefully; that's what they told me. So I said okay."
"As a practical matter, when the police pick someone up they say, 'Look, we can do it the hard way or the easy way; you can voluntarily consent because we have probable cause, or we can wake up the judge, have him sign an order, and take you down and have you catheterized.' They basically threaten you," said attorney Ron Volesky, based in Huron, S.D.
Photo: Graham Garnos Speaks