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The Oklahoma Legal Group Blog

July 1st Brings New Oklahoma Drug Laws

Adam Banner - Saturday, July 01, 2017

What are the new Oklahoma drug laws which go into effect July 1, 2017? Who do they apply to? Read on for more information.

New Oklahoma Drug Laws

Oklahoma is notorious for its tough drug laws—laws which provide unnecessarily harsh penalties for minor, nonviolent drug crimes. These “draconian” drug laws have done little to curb drug abuse in Oklahoma, and instead are a major contributor to the state having one of the highest incarceration rates in the nation, and the highest rate of female incarceration. Instead of treating substance abuse issues, the state was sending drug offenders straight to prison—a place where, most inmates acknowledge, it is easier to get drugs than before they were locked up.

In November 2016, Oklahoma voters let lawmakers know that they had enough. Mandatory minimum sentences and felony prosecution for first-time drug possession offenses were inappropriate, voters said. Instead of a “tough on crime” approach that was leading the state to lose the “war on drugs,” voters urged a “smart on crime” approach that reduced penalties for drug possession and provided funding for community treatment programs and alternative sentencing.


State Questions 780 and 781

Voters approved State Questions 780 and 781, and despite some legislative attempts to roll back the law and undermine the people’s voice, the new drug laws approved by Oklahomans will take effect on July 1, 2017.

SQ 780 makes several crimes that were once considered felonies into misdemeanors. These reforms are known as the “Oklahoma Smart Justice Reform Act.” The act and its reforms include several property crimes, but perhaps the biggest change is to the state’s drug laws.

Under previous law, possession of Schedule I or II drugs (except marijuana) is a felony on the first offense. This means that any person illegally possessing a narcotic or illegal drug for personal use was subject to felony prosecution and prison time. Certainly, having a couple of pills in your purse or pocket that weren’t prescribed to you shouldn’t make you a convicted felon, voters agreed.

New Laws Go Into Effect July 1, 2017

On July 1, that will change, as the amendments to 63 O.S. § 2-402 take effect.

Prior law penalized drug possession according to the type of drug possessed—for example, possession of Schedule I or II drugs was a felony; possession of marijuana and Schedule III, IV, and V drugs was a misdemeanor. Possession of a Schedule I or II drug was punishable by up to 5 years in prison on the first offense, up to 10 years on the second offense, and 4 to 15 years on the third offense. Remember, this was not for possession with intent to distribute, but merely possession for personal use.

The new law will punish simple possession of drugs, which formally resulted in felony charges, as misdemeanors punishable by a maximum of one year in county jail and a fine of up to $1,000. In addition, anyone convicted of drug possession must pay a special assessment trauma-care fee of $100 to the Trauma Care Assistance Revolving Fund.

The drug law reforms under SQ 780 do not enhance penalties or elevate misdemeanor prosecution to felony prosecution for repeat offenses.

Under SQ 781, prison cost savings by adopting SQ 780 are diverted to community rehabilitation and substance abuse treatment programs.

Who Do the New Drug Laws Apply to?

However, aside from SQ 780, the public also needs to be aware of contradictory legislative amendments contained in the same law (63 O.S. § 2-402) which could cause problems.

Oklahoma's new drug laws are written prospectively. That means there is no language in them that would indicate the law is supposed to be applied retroactively or "backwards" to people who were arrested and charged prior to the law going into effect. The problem most individuals facing drug charges after July 1, 2017, must keep in mind is that the Oklahoma Legislature amended the previous version of § 2-402 in a way that does not conform with the law changes voted on by the people of Oklahoma through SQ 780.  

The new legislative amendment still states that simple possession of a Schedule I or II substance will be punished as a felony. This is in direct contrast to the language of the law passed through SQ 780, which would make possession of those same drugs only a misdemeanor. 

Most likely, we will have to wait and see whether prosecutors continue to file these cases as felonies under the amended law, or whether they follow the mandates of the new drug laws passed through SQ 780. It will most likely take quite a bit of litigation to establish whether SQ 780 will trump the Legislature's statutory amendment.

Are Oklahoma's New Drug Laws Retroactive?

As of the date of this writing, and the date of the new laws going into effect, there is no clear-cut indication that the new drug laws will help people who have previously plead guilty to a drug crime or those who are currently facing a drug crime charge as of July 1, 2017. As noted above, there is no language in the new laws that would allow the benefit of the change in punishment to extend to persons who had drug charges filed against them prior to the new laws going into effect.

However, we will ultimately see how two competing legal theories play out in the upcoming debates between prosecutors and defense attorneys.

Prosecutors will rely on the retroactivity argument, falling back on the fact the new laws don't contain any language in them that indicates the laws should be applied to people charged prior to July 1, 2017, and that there is a separate version in § 2-402 (as amended by the Legislature through HB 2479) that still allows them to file felony simple possession of drug charges even though the other version of § 2-402 (as amended by SQ 780) states those same charges should actually be misdemeanors instead.

Defense attorneys on the other hand, will argue that the applicable punishment for a crime should be the one that is in place at the time a criminal defendant is sentenced, not the punishment in place at the time the defendant was first charged. After all, defendants are presumed innocent until proven guilty.

However, there is case law from the Oklahoma Court of Criminal Appeals that would disagree with the defense position when it relates to statutory amendments. Consequently, defense attorneys will have to craft arguments to show that different rules apply to laws changed by State Questions as opposed to legislative amendments.

It's time to hurry up and wait for the litigation to begin.






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