South Dakota Medical Marijuana Defense Bill Defeated

A bill that would have allowed South Dakotans charged with misdemeanor marijuana possession to mount a medical necessity defense was defeated Tuesday in the state legislature. The bill died on a 7-6 vote in the Health and Human Services Committee.

More accurately, it was "deferred to the 41^st day" of the legislative session. The session only has 40 days.

The bill, House Bill 1227, would have allowed people caught with less than two ounces of marijuana to mount a medical necessity defense against either a pot possession charge or the state's unique ingestion for the purposes of intoxication charge. It provided for such a defense to be mounted if "a competent medical authority" has recommended its palliative use or if its use is known to be palliative for a given condition.

The defeat in Pierre only adds to the state's reputation as one of the most medical marijuana-unfriendly in the country. Medical marijuana bills have been introduced repeatedly there since 2001, but never go anywhere, and the state has the dubious distinction of being the first to defeat an initiative legalizing medical marijuana and the only one to do it twice, in 2006 and 2010.

"If you talk to drug users, nine times out of 10 they started with marijuana first," said Rep. Melissa Magstadt (R-Watertown), reiterating the long discredited gateway theory. The registered nurse also cited opposition to the bill from the state's medical and nursing associations.

"This is about being compassionate to our folks," said Sen. Karen Soli (D-Sioux Falls). "When I first heard of this, I thought no way. I'm not in favor of legalizing marijuana," she added. "It's quite a surprise to me I'm going to vote for this."

The bill's sponsors, Rep. Dan Kaiser (R-Aberdeen), a police officer, and Sen. Craig Tiezen (R- Rapid City), a retired police chief, testified before the committee last week. They told legislators the bill would not legalize marijuana or allow for advance doctor's recommendations, but would allow someone charged with possession to argue in court that they needed it for medical reasons and present evidence to make their case, with the final decision in the hands of the trial judge.

The South Dakota Supreme Court in 2003 rejected the use of the medical marijuana necessity defense in the case of a wheelchair-bound man. This bill would have made the defense available as part of state law.