Article by Wichita Criminal Defense Attorney Keith Edwards

Wichita decriminalized possession of marijuana last week, but you can still be arrested and charged under state and/or federal laws.

What exactly was the change?

On September 13, 2022, the Wichita City Council voted 5-2 to decriminalize marijuana possession. Specifically, the Council repealed Section 5.26.010 of the Code of the City of Wichita, and amended Section 5.26.30, which had a bigger impact than was reported in several of the news articles covering the recent law change.

The repeal of Section 5.26.010 also decriminalized possession of LSD and Psilocybin (commonly known as magic mushrooms), as well as possession of dronabinol and nabilone (synthetic forms of THC used for treating chemotherapy related nausea and vomiting, among other things).

The amendment to Section 5.26.030 decriminalized possession of marijuana-related drug paraphernalia (wraps, bongs, grinders) and decriminalized the possession of fentanyl testing strips, which were previously classified as drug paraphernalia. Decriminalizing the possession of fentanyl testing strips is a positive step toward reducing potential overdoses and in addressing the nation’s opioid crisis.

Lastly, it is worth noting that the City Council did not repeal or amend Section 5.26.020(f), which means that possession of THC (the active ingredient in marijuana that causes its hallucinogenic effect) is still illegal. It is not clear why the Council chose to decriminalize marijuana while maintaining a prohibition on THC, a substance found in marijuana. It is possible that an amendment or repeal of Section 5.26.020(f) will occur at a later date.

So, is marijuana possession legal in Wichita now?

Not exactly.

A lot of the confusion in this area has to do with the important distinction between “decriminalization” and “legalization.” We live in a society where everything is allowed unless it has been made illegal by one or more of the various governmental entities holding power over us. For example, there is no law that says you can take an aspirin, there is no law that says you can wash your car, and there is no law that says you can eat ice cream. Rather, there is simply no law stating that you cannot take an aspirin, that you cannot wash your car, or that you cannot eat ice cream. And, as of September 13, 2022, there is no municipal ordinance in the Code of the City of Wichita forbidding marijuana possession.

While many may find this exciting, it is very important to note that possession of marijuana is still a crime—so you can still be arrested and prosecuted—under state and/or federal laws.

So marijuana isn’t legal, but the WPD won’t arrest me?

That’s not a certainty either.

An arrest for marijuana possession can be made by Wichita Police Department officers if they have reason to suspect that you possess marijuana, even though it is no longer a municipal crime.

It may seem counterintuitive that a police officer, charged and sworn to enforce the laws of their city, could arrest someone for an act that same city allows. But there are many offenses which are not technically municipal crimes. Municipal courts are only empowered to prosecute misdemeanor offenses; any felony charges must be prosecuted under state law in the county’s district court. An extreme example would be something like murder. The City of Wichita has no ordinance prohibiting the intentional, premeditated, and unlawful killing of a person by another, but there are multiple state laws forbidding such an act. No one would be able to argue in good faith that an officer of the Wichita Police Department exceeded the scope of his or her authority in arresting someone suspected of such a crime. The same logic applies to offenses such as armed robbery, kidnapping, identity theft, and violations of state law concerning the possession of marijuana.

Before last Tuesday, one of the first things JHC’s Wichita criminal defense attorneys would ask someone who was arrested for marijuana possession or possession of drug paraphernalia is whether they were arrested by an officer from the Wichita Police Department or a deputy from the Sedgwick County Sheriff’s Office. Generally, a police interaction meant that the case would be handled in Wichita Municipal Court, and a case arising out of an arrest by a deputy would be handled in Sedgwick County District Court. The different courts have different rules, and those differences can have a big impact on how a case will proceed. While there are substantial differences in the procedures used in municipal and district court, the underlying law is very similar. In many cases, both district and municipal courts would have jurisdiction to prosecute someone for misdemeanor offenses.

Although a WPD officer may arrest you for marijuana possession, the law change means that any subsequent prosecution would occur in Sedgwick County District Court. However, the District Attorney has discretion regarding whether to move forward with a prosecution following an arrest.

Will the Sedgwick County District Attorney’s Office prosecute Wichita marijuana possession cases?

Maybe.

The Sedgwick County District Attorney has stated that his office does not have the resources to prosecute all the cases that would ordinarily have been handled at a municipal court level—estimating he would need more prosecutors and another judge to handle the influx of possession cases which used to be addressed in the municipal court. Only time will tell whether prosecutions will diminish or simply shift to state court.

It is also important to note that there are several other municipalities in Sedgwick County, each with their own municipal court and their own police force. A person might pass from Haysville, through Wichita, through Eastborough, back into Wichita, through Andover, then Kechi, then Park City, then Valley Center, then back to Wichita within the span of an hour or two without realizing that they’ve done so—and without realizing that they’ve been subject to a different set of laws in each location.

What should I do?

In the meantime, any stopped for a drug possession in the Wichita area should contact a criminal defense attorney who is well versed on marijuana laws at the federal, state, and municipal level. Joseph, Hollander & Craft’s experienced drug crimes lawyers can help you navigate the various court systems and laws concerning drug and drug paraphernalia possession.