Samantha Joslin
Features editor
With marijuana becoming progressively more socially accepted and widely used throughout the United States, there’s a pressing question on the mind of many recreational users: what happens if I get caught?
The process is hardly definite and depends on dozens of factors, but here’s what you can expect from a marijuana conviction in Johnson County.
First, there’s the arrest. Already, there’s some ambiguity in what, exactly, could happen here. On one end of the scale, the officer could confiscate the drugs and send the user on their way without a charge, although this is uncommon.
On the other end of the scale is what happened to students Alexis Blow and Jack McCall. They were caught with marijuana in 2017, and according to them, the arresting officers were anything but kind.
“We got caught by sheriffs on Thanksgiving night,” McCall said. “The police pulled [Blow] and I into separate cop cars, handcuffed us and read us our Miranda Rights. I just think about how awful they were to us, even though we were cooperating. They ended up taking us to a juvenile detention center, fingerprinted us, did mugshots. We were probably there for two or three hours.”
Most people caught with marijuana will have a less distressing experience. Often, officers will place adults offenders under a “formal arrest,” which will be recorded as an arrest but allows them to return home that night. Officers will search the culprit’s person or car, and what they find further influences the ensuing court process.
According to Olathe-Lawyers.com, “Possession of marijuana can be charged as either a felony or a misdemeanor.” To determine this, the prosecutor will examine “several factors, including: was a scale found, thus indicating intent to sell? What is the defendant’s criminal record? What was the quantity of marijuana found? Was the marijuana in several baggies, thus indicating possible distribution?”
If the offender is given a simple possession charge (rather than an “intent to distribute” charge, which would result in a felony), this will be classified as a misdemeanor. While the Overland Park court requires at least two days’ custody for this charge, most other courts in the area can resolve marijuana charges without jail time. Marijuana is classified as a “Class A misdemeanor” in Kansas, meaning it threatens up to 12 months in jail and a possible $2,500 maximum fine.
Typically, first-time offenders will be offered diversion. Diversion, like probation, involves undergoing drug tests for a determined amount of time. It may also include community service or a three-hour, eight-hour or weekly drug counselling session. The difference between diversion and probation is that people on diversion will never have to check the menacing “I have been convicted of a crime” box on future job applications; both diversion and probation can be eventually removed from an offender’s record.
It’s when the court process begins that things get particularly uncertain. Overland Park lawyer Brandon Davies, working under local law firm Roth Davies LLC, posts easy-to-follow videos or written pieces on his firm’s website explaining common charges. While discussing marijuana charges, Davies explained the ambiguity surrounding the case-to-case process.
“A prosecutor or judge will almost certainly have a ‘tendency,’ or a preconceived idea of how ‘bad’ they think marijuana is,” Davies wrote on his firm’s website. “Prosecutors and judges are not robots that process cases without interjecting their own beliefs. Some prosecutors and judges will naturally be easier on crimes that they do not perceive as very severe. Others will see things in the opposite fashion. Sometimes the difference between going to jail or being placed on probation is dictated by who is prosecuting or hearing the case.”
Additionally, people charged with possession of marijuana and sentenced to diversion must meet with an “evaluator,” who will ask questions about the offender’s personal life, job or school environment and overall drug and alcohol usage. The evaluations these counselors provide give the judge or prosecutor an idea of how long the offender will need to be on diversion as well as the severity of their diversion.
Blow and McCall ended up seeing different evaluators. Despite their charges being identical, McCall’s evaluator allowed him to be on “unsupervised” diversion, which entailed 30 hours of community service, a one-time eight-hour drug counselling session and scheduled drug tests. Blow, on the other hand, had random drug tests and weekly drug therapy, as well as 30 hours of community service.
“We saw different counselors, so he got put on diversion a step lower,” Blow said. “I had to call [a testing system called] Averhealth every night and type in my pin number, and they’d tell me whether I was scheduled for the next day.”
This system of random testing is common for those convicted of possession of marijuana in the Johnson County area. The operated calling system opens at 7 p.m. each night, at which point offenders can call to see if they’re scheduled to report for testing the following day. If a person is scheduled, they must drive to an Averhealth testing center before its 6 p.m. closing time, pay $16 for a urine analysis and urinate into a cup while a same-sex staff member is in the room.
“I would be laying in bed at one a.m. and be like, ‘did I call?’” Blow remembered. “I’d call again just to make sure. Sometimes, I would hang up and immediately call again, wondering if I heard it right. I was so scared that I was going to miss [a test] and get in trouble. When I first started, the drug tests were terrible. It was so hard to make myself [urinate] while someone was watching, so I had to drink, like, twelve bottles of water and not pee the whole day. But, then, all my drug tests were coming back diluted.”
A diluted test tacks on an extra $25 fee as the sample is sent to a lab to be further tested. Tests can happen once a month or days in a row; it all depends on how often a person’s diversion officer thinks they should be tested.
Diversion can last anywhere from a few months to over a year and can include any number of added fees. It can involve classes or required Narcotics Anonymous attendance. It can demand community service and as many numbers of tests a month as a diversion officer sees fit. People on diversion must report while out of town or during work hours; failure to do so will result in a motion to revoke the diversion, which will land the offender on probation.
Despite the harsh reality of diversion, Blow and McCall are both adamant that the system is entirely ineffective.
“So many people, once they get on diversion, just say, ‘I can’t wait to get off and [do what I was doing before],” Blow said. “It’s just a couple of months of being sober, and then you can party again. I had a countdown on my phone for when mine would end. We were both just excited for it to be done. I don’t think it’s effective at all — definitely not.”