PAMDA Text

PAMDA 2022
Personal Adult Marijuana Decriminalization Act

Text of the Personal Adult Marijuana Decriminalization Act of 2022

Use the download link above to view the official PAMDA initiative document, funding source, and signature page. The text below contains hyperlinks to notes containing review information from the Idaho Attorney General and our response to it.

WHEREAS the State of Idaho is surrounded on all its borders by states that have enacted the legalization of marijuana sales to adults in one form or another;

WHEREAS thousands of Idaho adults regularly cross our borders to legally buy marijuana products, then break the law bringing those products back home to Idaho;

WHEREAS many of those Idaho adults suffer debilitating medical conditions for which marijuana products may be the only method of relief, while others adhere to sincere religious faiths that believe marijuana is a sacrament;

WHEREAS Article I, Section 1 of the Idaho Constitution recognizes “All men are by nature free and equal, and have certain inalienable rights, among which [is]… pursuing happiness…”

WHEREAS Article I, Section 17 of the Idaho Constitution recognizes “[t]he right of the people to be secure in their persons, houses, papers and effects against unreasonable searches and seizures…”

WHEREAS Article I, Section 24 of the Idaho Constitution instructs that “[t]he legislature should further all wise and well directed efforts for the promotion of temperance…” yet that legislature has failed to address the emerging legality of marijuana across our borders;

WHEREAS Idaho law enforcement and corrections are needlessly burdened with the pursuit of Idaho adults who have legally purchased marijuana products out of state; and

WHEREAS the People of Idaho respect the right of adults to privacy for consensual behaviors within the home, but wish to regulate personal, private marijuana use by adults in a manner that prevents marijuana commercialization and cultivation within the state;

These “whereas” clauses don’t mean anything in the actual proposed law, but do provide guidance to future courts as to the intent of the law.

Be it enacted by the People of Idaho:

SECTION 1 Title. This Act shall be known as the Personal Adult Marijuana Decriminalization Act  

That Title 37, Idaho Code, be, and the same is hereby amended by the addition thereto of a NEW CHAPTER, to be known and designated as Chapter 35, Title 37, Idaho Code, and to read as follows:

CHAPTER 35, PERSONAL ADULT MARIJUANA DECRIMINALIZATION ACT  

37-3501. SHORT TITLE. This act shall be cited as the “Personal Adult Marijuana Decriminalization Act.”

37-3502. DEFINITIONS For purposes of this Chapter, unless the context otherwise requires:

(1) “Marijuana” [A1] means all parts of the plant of the genus Cannabis, regardless of species, and whether growing or not; the seeds thereof; the resin extracted from any part of such plant; and every compound, manufacture, salt, derivative, mixture, or preparation of such plant, its seeds or resin, including any plant material or the resin or any derivative thereof, regardless of form, containing any of the chemical substances classified as tetrahydrocannabinols. It does not include the mature stalks of the plant unless the same are intermixed with prohibited parts thereof, fiber produced from the stalks, oil or cake made from the seeds or the achene of such plant, any other compound, manufacture, salt, derivative, mixture, or preparation of the mature stalks, except the resin extracted therefrom or where the same are intermixed with prohibited parts of such plant, fiber, oil, or cake, or the sterilized seed of such plant which is incapable of germination.

[A2] The AG noted that PAMDA’s definition varies from the Idaho Criminal Code’s definition of marijuana. This is by design. By designating “marijuana” as any product containing THC, it will include any marijuana product currently sold legally across the border as well as hemp-derived CBD oils containing scant amounts of THC.

(2) “Personal amount of marijuana [A3] ” means:

(a) With respect to a person who is at least twenty-one (21) years of age:

(i) Three (3) ounces of marijuana.

The three ounces allowed is greater than the one ounce purchase limit in shops across the border. However, those shops limit raw cannabis flower to one ounce while still allowing purchases of edibles and concentrates over that one ounce limit. By setting our limit at three ounces, an Idahoan who bought an ounce of flower and up to two ounces in weight of any other cannabis products would be protected. This also makes enforcement easy for police, who need only weigh the totality of the marijuana products.

(3) “Personal use of marijuana” means:

(a) With respect to a person who is at least twenty-one (21) years of age:

(i) Possession and usage of a personal amount of marijuana for ingestion by any means; and

(ii) Possession and usage of marijuana occurs on and within private property; and

(iii) With permission of the property owner.

37-3503. LIMITATIONS [A4] 

This Chapter does not authorize any person to engage in, and does not prevent the imposition of any civil, criminal, or other penalties for engaging in, the following conduct:

(1) Undertaking any task under the influence of marijuana that would constitute negligence or professional malpractice.

(2) Possessing [A5] or engaging in the use of marijuana:

(a) On a school bus; or

(b) In any correctional facility.

[A6] The AG noted that school buses and prisons are never “private” property, so all marijuana use would be banned, since by our definitions, use there could never be “personal.”

(3) Smoking or vaporizing marijuana:

(a) On any form of public transportation;

(b) On the grounds of any licensed daycare, preschool, primary or secondary school; or

(c) In any place where tobacco smoking is prohibited.

(4) Operating, navigating, or being in actual physical control of any motor vehicle, aircraft, train, motorboat, or other motorized form of transport while under the influence of marijuana, except [A7] a person may not be considered to be under the influence of marijuana solely because of the presence of metabolites or components of marijuana that appear in insufficient concentration to cause impairment.

[A8] The AG is concerned that there will be problems with this section on impairment, because “components of marijuana that appear in insufficient concentration to cause impairment” is vague. This is actually the point: that law enforcement relies on simply whether someone has used marijuana to prove impairment absent any actual impairment. We added the word “solely” so that marijuana toxicology reports alone cannot determine impairment, but their combination with other factors that demonstrate impairment could still be used in court.

(5) Solvent-based extractions on marijuana using solvents other than water, glycerin, propylene glycol, vegetable oil, or food grade ethanol by a person.

(6) Using marijuana except as authorized under this Chapter.

(7) Cultivating live marijuana plants of any size or stage of development.

(8) Nothing in this Chapter requires:

(a) Any person or establishment in lawful possession of property to allow a guest, client, customer, or other visitor to smoke marijuana on or in that property;

(b) A licensed daycare, preschool, primary or secondary school to allow the personal use of marijuana on its property.

37-3504. FACILITY RESTRICTIONS

(1) Any nursing facility, intermediate care facility, hospice house, hospital, or other type of residential care or assisted living facility may adopt reasonable restrictions on the personal use of marijuana by their residents or a person receiving inpatient services, including:

(a) That the facility will not store or maintain the person’s supply of marijuana;

(b) That the facility, caregivers, or hospice agencies serving the facility’s residents are not responsible for providing the marijuana for persons;

(c) That marijuana is consumed by a method other than smoking; or

(d) That marijuana is consumed only in a place specified by the facility.

(2) Nothing in this section requires a facility listed in subsection (1) to adopt restrictions on the personal use of marijuana [A9] .

[A10] We deleted a section (3) in the Facility Restrictions that would have established a different standard than the “on private property with permission of owner” standard we have established for all other private property. Such a difference would have opened PAMDA up to equal protection challenges in court.

37-3505. PROTECTIONS FOR THE PERSONAL USE OF MARIJUANA

(1) A person who is at least twenty-one (21) years of age or older is not subject to arrest, prosecution, or penalty in any manner, or denial of any right or privilege [A11] , including any civil penalty or disciplinary action by a court, or occupational or professional licensing board or bureau, for:

[A12] The AG is concerned that “any right or privilege” may be unconstitutionally vague and infringe on existing contracts and court orders. But the whole point of PAMDA is to treat home marijuana smokers like we’d treat people who drink beer at home.

(a) The personal use of marijuana pursuant to this Chapter, if the person does not possess more than a personal amount of marijuana in accordance with this Act;

(b) Offering or providing [A13] a personal amount of marijuana to a person who is at least twenty-one (21) years of age or older.

[A14] The AG is concerned that this would allow an unlimited series of marijuana transactions between adults, so long as they’re all less than three ounces. Yes—if Adult A crosses the border and brings back an ounce, he could keep a half ounce and transfer a half ounce to Adult B, who could keep a quarter ounce and transfer a quarter ounce to Adult C, who could keep an eighth ounce and transfer an eighth ounce to Adult D. But that entire ounce, no matter how many transfers it is divided into, was purchased legally and not from in-state black market sources.

(c) Transporting a personal amount of marijuana from a jurisdiction where the marijuana was legally purchased under state law [A15] .

[A16] The AG noted that all marijuana purchases are illegal under federal law, prompting us to add “under state law.”

(2) There is a presumption in criminal, civil, and administrative court proceedings that a person aged 21 years or older [A17] is engaged in the personal use of marijuana pursuant to this Chapter if the person is in possession an amount of marijuana that does not exceed the personal amount.

[A18] The AG noted that this section applied only to “a person” and that could conflict with juvenile marijuana cases, so we added “aged 21 years or older.”

(3) A holder of a professional or occupational license may not be subject to professional discipline for providing advice or services related to marijuana activities that are allowed under state law pursuant to this Chapter or denied a license based on previous employment related to marijuana activities that are allowed under state law pursuant to this Chapter.

(4) No person may be subject to arrest, prosecution, or penalty in any manner, or denied any right or privilege, including any civil penalty or disciplinary action by a court or occupational or professional licensing board or bureau, for:

(a) Providing or selling drug paraphernalia designed for the personal use of marijuana to a person who is twenty-one (21) years of age or older;

(b) Being in the presence or vicinity of the personal use of marijuana that is exempt from criminal penalties under this Chapter [A19] ; or

[A20] We had included a protection for those who would help “administer” marijuana to other adults. The AG suggested that term could be vague and subject to challenge. As PAMDA is not designed as a medical initiative, there would be little “administering” going on, and those who would use PAMDA for medical use would already have protection for their caregivers age 21 and older, so we struck the section altogether.

(c) Allowing a person’s property to be used for activities that are exempt from criminal penalties by this Chapter.

(5) Property, including all interests in the property, otherwise subject to forfeiture under state or local law that is possessed, owned, or used in any activity permitted under this Chapter is not subject to seizure or forfeiture. This subsection does not prevent civil or criminal forfeiture if the legal basis for the forfeiture is unrelated to the personal use of marijuana as authorized under this Chapter. [A21] 

[A22] The AG noted that as written, law enforcement would be denied asset forfeiture in large-scale marijuana trafficking cases if the defendant could show there was also “personal marijuana use” happening. We added “if the legal basis for the forfeiture is unrelated to the personal use of marijuana as authorized under this Chapter” so only personal marijuana use is protected from asset forfeiture.

(6) The odor of marijuana [A23] alone in the presence of persons aged 21 years or older engaged in activities authorized by this Act does not constitute probable cause or reasonable suspicion, nor may it be used to support the search of a person or property of a person.

[A24] The AG called the removal of marijuana smell as a probable cause “unprecedented,” even though New York and other states have already set that precedent. However, to avoid elimination of marijuana smell altogether as a probable cause would prevent investigation of large-scale trafficking of marijuana and require the retraining of police K-9s, thus increasing the costs and opposition to PAMDA. We added “the odor of marijuana alone in the presence of persons 21 years of age or older engaged in activities authorized by this Act” to narrowly protect people smoking pot in their own homes from being subject to a warrantless search, but allow marijuana odor as a probable cause in all other circumstances.

37-3506. DISCRIMINATION PROHIBITED [A25] 

[A26] We had included a protection for nursing home residents that was more applicable in a medical initiative and somewhat redundant, since we’ve set the standard of “on private property with permission of owner” that would have differed from this protection, so we struck that section.

(1) No employer is required to allow the ingestion of marijuana in any workplace or to allow any employee to work while under the influence of marijuana, provided that an employee shall not be considered to be under the influence of marijuana because of the presence of metabolites or components of cannabis that appear in insufficient concentration to cause impairment. [A27] 

[A28] The AG again opposes the “insufficient concentration to cause impairment” language and warns about conflicts with federal law. Again, we feel sober employees should not be treated differently because we can detect they weren’t sober off the clock.

(2) For the purposes of medical care [A29] , including organ and tissue transplants, a person’s use of marijuana in accordance with this Chapter does not constitute the use of an illicit substance or otherwise disqualify a person from receiving medical care.

[A30] The AG warns that this section could go against standards of medical care and subject physicians to malpractice suits, but this sort of protection exists in many states and has never been problematic.

(3) A person shall not be denied custody [A31] of or visitation rights or parenting time with a minor for engaging in conduct allowed under this Chapter.

[A32] The AG worries this protection could hamstring family courts where marijuana use has been shown to be harmful to children. But any harm he suggests is one that can be proven without relying solely on the fact that a parent uses marijuana at home.

(4) No state or local agency shall restrict, revoke, suspend, or otherwise infringe upon a person’s right to own or possess a firearm [A33] or any related firearms certification based on conduct allowed under this act.

[A34] The AG warns that this protection causes conflicts with the federal law against drug users owning guns. But this issue has been adjudicated in numerous medical marijuana states, and courts have decided that states are free to regulate their licensing and certification of firearms how they see fit.

(5) No school, landlord, or employer may be penalized or denied any benefit under state law [A35] for enrolling, leasing to, or employing a person engaging in conduct allowed under this Chapter.

[A36] The AG’s concerns about this provision seem to be based on the idea that these entities would be subject to different standards than other property owners. That is not the case. All private property entities can decide whether they allow personal marijuana use. All this section does is protect them from penalty if they choose to allow personal marijuana use; it does not mandate that they do so.

SECTION 2. SEVERABILITY

The provisions of this act are hereby declared to be severable and if any provision of this act or the application of such provision to any person or circumstance is declared invalid for any reason, such declaration shall not affect the validity of the remaining portions of this act.

SECTION 3.  CONTROLLED SUBSTANCE AMENDMENTS

That Chapter 27, Title 37, Idaho Code, be, and the same is hereby amended to read as follows:

What follows are the Idaho Criminal Codes for marijuana, into which we have added “Except as authorized by this chapter or authorized by Chapter 35, Title 37.” In other words, every marijuana crime remains on the books—possession, selling, and cultivation—but you can’t be busted for the narrow exceptions of buying three ounces or less of marijuana products legally across the border, driving it straight home, and using it in private.

37-2732.  PROHIBITED ACTS A — PENALTIES. (a) Except as authorized by this chapter or authorized by Chapter 35, Title 37, it is unlawful for any person to manufacture or deliver, or possess with intent to manufacture or deliver, a controlled substance.

(1)  Any person who violates this subsection with respect to:

(A)  A controlled substance classified in schedule I which is a narcotic drug or a controlled substance classified in schedule II, except as provided for in section 37-2732B(a)(3), Idaho Code, is guilty of a felony and upon conviction may be imprisoned for a term of years not to exceed life imprisonment, or fined not more than twenty-five thousand dollars ($25,000), or both;

(B)  Any other controlled substance which is a nonnarcotic drug classified in schedule I, or a controlled substance classified in schedule III, is guilty of a felony and upon conviction may be imprisoned for not more than five (5) years, fined not more than fifteen thousand dollars ($15,000), or both;

(C)  A substance classified in schedule IV, is guilty of a felony and upon conviction may be imprisoned for not more than three (3) years, fined not more than ten thousand dollars ($10,000), or both;

(D)  A substance classified in schedules V and VI, is guilty of a misdemeanor and upon conviction may be imprisoned for not more than one (1) year, fined not more than five thousand dollars ($5,000), or both.

(b)  Except as authorized by this chapter, it is unlawful for any person to create, deliver, or possess with intent to deliver, a counterfeit substance.

(1)  Any person who violates this subsection with respect to:

(A)  A counterfeit substance classified in schedule I which is a narcotic drug, or a counterfeit substance classified in schedule II, is guilty of a felony and upon conviction may be imprisoned for not more than fifteen (15) years, fined not more than twenty-five thousand dollars ($25,000), or both;

(B)  Any other counterfeit substance classified in schedule I which is a nonnarcotic drug contained in schedule I or a counterfeit substance contained in schedule III, is guilty of a felony and upon conviction may be imprisoned for not more than five (5) years, fined not more than fifteen thousand dollars ($15,000), or both;

(C)  A counterfeit substance classified in schedule IV, is guilty of a felony and upon conviction may be imprisoned for not more than three (3) years, fined not more than ten thousand dollars ($10,000), or both;

(D)  A counterfeit substance classified in schedules V and VI or a noncontrolled counterfeit substance, is guilty of a misdemeanor and upon conviction may be imprisoned for not more than one (1) year, fined not more than five thousand dollars ($5,000), or both.

(c)  It is unlawful for any person to possess a controlled substance unless the substance was obtained directly from, or pursuant to, a valid prescription or order of a practitioner while acting in the course of his professional practice, or except as otherwise authorized by this chapter or authorized by Chapter 35, Title 37.

(1)  Any person who violates this subsection and has in his possession a controlled substance classified in schedule I which is a narcotic drug or a controlled substance classified in schedule II, is guilty of a felony and upon conviction may be imprisoned for not more than seven (7) years, or fined not more than fifteen thousand dollars ($15,000), or both.

(2)  Any person who violates this subsection and has in his possession lysergic acid diethylamide is guilty of a felony and upon conviction may be imprisoned for not more than three (3) years, or fined not more than five thousand dollars ($5,000), or both.

(3)  Any person who violates this subsection and has in his possession a controlled substance which is a nonnarcotic drug classified in schedule I except lysergic acid diethylamide, or a controlled substance classified in schedules III, IV, V and VI is guilty of a misdemeanor and upon conviction thereof may be imprisoned for not more than one (1) year, or fined not more than one thousand dollars ($1,000), or both.

(d)  It shall be unlawful for any person to be present at or on premises of any place where he knows illegal controlled substances are being manufactured or cultivated, or are being held for distribution, transportation, delivery, administration, use, or to be given away, other than activities authorized by Chapter 35, Title 37. A violation of this section shall deem those persons guilty of a misdemeanor and upon conviction shall be punished by a fine of not more than three hundred dollars ($300) and not more than ninety (90) days in the county jail, or both.

(e)  If any person is found to possess marijuana, which for the purposes of this subsection shall be restricted to all parts of the plants of the genus Cannabis, including the extract or any preparation of cannabis which contains tetrahydrocannabinol, in an amount greater than three (3) ounces net weight, it shall be a felony and upon conviction may be imprisoned for not more than five (5) years, or fined not more than ten thousand dollars ($10,000), or both.

(f)  If two (2) or more persons conspire to commit any offense defined in this act and not authorized by Chapter 35, Title 37, said persons shall be punishable by a fine or imprisonment, or both, which may not exceed the maximum punishment prescribed for the offense, the commission of which was the object of the conspiracy.

(g) (1) It is unlawful for any person to manufacture or distribute a “simulated controlled substance,” or to possess with intent to distribute, a “simulated controlled substance.” Any person who violates this subsection shall, upon conviction, be guilty of a misdemeanor and upon conviction thereof shall be punished by a fine of not more than one thousand dollars ($1,000) and not more than one (1) year in the county jail, or both.

(2)  It is unlawful for any person to possess a “simulated controlled substance.” Any person who violates this subsection shall, upon conviction, be guilty of a misdemeanor and upon conviction thereof shall be punished by a fine of not more than three hundred dollars ($300) and not more than six (6) months in the county jail, or both.

(h)  It is unlawful for any person to cause to be placed in any newspaper, magazine, handbill, or other publication, or to post or distribute in any public place, any advertisement or solicitation offering for sale simulated controlled substances. Any person who violates this subsection is guilty of a misdemeanor and shall be punished in the same manner as prescribed in subsection (g) of this section.

(i)  No civil or criminal liability shall be imposed by virtue of this chapter on any person registered under the Uniform Controlled Substances Act who manufactures, distributes, or possesses an imitation controlled substance for use as a placebo or other use by a registered practitioner, as defined in section 37-2701(aa), Idaho Code, in the course of professional practice or research.

(j)  No prosecution under this chapter shall be dismissed solely by reason of the fact that the dosage units were contained in a bottle or other container with a label accurately describing the ingredients of the imitation controlled substance dosage units. The good faith of the defendant shall be an issue of fact for the trier of fact.

(k)  Upon conviction of a felony or misdemeanor [A37] violation under this chapter or upon conviction of a felony pursuant to the “racketeering act,” section 18-7804, Idaho Code, or the money laundering and illegal investment provisions of section 18-8201, Idaho Code, the court may order restitution for costs incurred by law enforcement agencies in investigating the violation. Law enforcement agencies shall include, but not be limited to, the Idaho state police, county and city law enforcement agencies, the office of the attorney general and county and city prosecuting attorney offices. Costs shall include, but not be limited to, those incurred for the purchase of evidence, travel and per diem for law enforcement officers and witnesses throughout the course of the investigation, hearings and trials, and any other investigative or prosecution expenses actually incurred, including regular salaries of employees. In the case of reimbursement to the Idaho state police, those moneys shall be paid to the Idaho state police for deposit into the drug and driving while under the influence enforcement donation fund created in section 57-816, Idaho Code. In the case of reimbursement to the office of the attorney general, those moneys shall be paid to the general fund. A conviction for the purposes of this section means that the person has pled guilty or has been found guilty, notwithstanding the form of the judgment(s) or withheld judgment(s).

[A38] We had struck “or misdemeanor” for this section, with the intent that someone using a personal amount of marijuana should not be subject to racketeering charges or face restitution. However, since there are other drug misdemeanors, such a change would impact more than marijuana and violate the “single subject rule,” so we’ve restored the original language.

37-2732C.  USING OR BEING UNDER THE INFLUENCE — PENALTIES. (a) Except as authorized in this chapter, it is unlawful for any person on a public roadway, on a public conveyance, on public property or on private property open to the public, to use or be under the influence of any controlled substance specified in subsection (b), (c), (d), (e) and (f) of section 37-2705, Idaho Code, or subsection (b), (c) and (d) of section 37-2707, Idaho Code, or subsection (c)(6) of section 37-2709, Idaho Code, or any narcotic drug classified in schedule III, IV or V, except when administered by or under the direction of a person licensed by the state to dispense, prescribe, or administer controlled substances, or as authorized by Chapter 35, Title 37 [A39] . It shall be the burden of the defense to show that it comes within this exception.

[A40] The AG warns that this section would allow people to be impaired by marijuana while on a boat or in a car or in public. Absolutely! While someone must consume marijuana in private, once they’ve done so, as long as they don’t take marijuana with them, they should be able to ride in a boat, a car, or take a walk. PAMDA already forbids them from operating the boat or car while impaired.

(b)  Any person convicted of violating the provisions of subsection (a) of this section is guilty of a misdemeanor and is punishable by imprisonment in a county jail for not more than six (6) months, or by a fine not exceeding one thousand dollars ($1,000) or by both.

(c)  Any person who is convicted of violating subsection (a) of this section, when the offense occurred within five (5) years of that person being convicted of two (2) or more separate violations of that subsection and who refuses to complete a licensed drug rehabilitation program offered by the court pursuant to subsection (d) shall be punished by imprisonment in the county jail for a mandatory minimum period of time of not less than one hundred twenty (120) days, nor more than one (1) year. The court may not reduce the mandatory minimum period of incarceration provided in this subsection.

(d)  The court may, when it would be in the interest of justice, permit any person convicted of a violation of subsection (a) of this section, punishable under subsection (b) or (c) of this section, to complete a licensed drug rehabilitation program in lieu of part or all of the imprisonment in the county jail. As a condition of sentencing, the court may require the offender to pay all or a portion of the drug rehabilitation program. In order to alleviate jail overcrowding and to provide recidivist offenders with a reasonable opportunity to seek rehabilitation pursuant to this subsection, counties are encouraged to include provisions to augment licensed drug rehabilitation programs in their substance abuse proposals and applications submitted to the state for federal and state drug abuse funds.

(e)  Notwithstanding subsection (a), (b) or (c) of this section, or any other provision of law to the contrary, any person who is unlawfully under the influence of cocaine, cocaine base, methamphetamine, heroin, or phencyclidine while in the immediate personal possession of a loaded, operable firearm is guilty of a public offense and is punishable by imprisonment in the county jail or the state prison for not more than one (1) year. As used in this subsection, “immediate possession” includes, but is not limited to, the interior passenger compartment of a motor vehicle.

(f)  Every person who violates subsection (e) of this section is punishable upon the second and each subsequent conviction by imprisonment in the state prison for a period of time not in excess of four (4) years.

(g)  In addition to any fine assessed under this section and notwithstanding the provisions of section 19-4705, Idaho Code, the court may, upon conviction, assess an additional cost to the defendant in the way of restitution, an amount not to exceed two hundred dollars ($200) to the arresting and/or prosecuting agency or entity. These funds shall be remitted to the appropriate fund to offset the expense of toxicology testing.

37-2733.  PROHIBITED ACTS B — PENALTIES. (a) Except with regard to activities authorized by Chapter 35, Title 37, Iit is unlawful for any person:

(1)  Who is subject to article III of this act to distribute or dispense a controlled substance in violation of section 37-2722, Idaho Code;

(2)  Who is a registrant, to manufacture a controlled substance not authorized by his registration, or to distribute or dispense a controlled substance not authorized by his registration to another registrant or other authorized person;

(3)  To refuse or fail to make, keep or furnish any record, notification, order form, statement, invoice or information required under this act;

(4)  To refuse an entry into any premises for any inspection authorized by this act; or

(5)  Knowingly to keep or maintain any store, shop, warehouse, dwelling, building, vehicle, boat, aircraft, or other structure or place, which is resorted to by persons using controlled substances in violation of this act for the purpose of using these substances, or which is used for keeping or selling them in violation of this act.

(b)  Any person who violates this section is guilty of a misdemeanor and upon conviction may be imprisoned for not more than one (1) year, fined not more than twenty-five thousand dollars ($25,000), or both.

37-2734.  PROHIBITED ACTS C — PENALTIES. (a) Except with regard to activities authorized by Chapter 35, Title 37, Iit is unlawful for any person knowingly or intentionally:

(1)  To distribute as a registrant a controlled substance classified in schedule I or II, except pursuant to the requirements of section 37-2722, Idaho Code;

(2)  To use in the course of the manufacture or distribution of a controlled substance a registration number which is fictitious, revoked, suspended, or issued to another person;

(3)  To acquire or obtain possession of a controlled substance by misrepresentation, fraud, forgery, deception or subterfuge;

(4)  To furnish false or fraudulent material information in, or omit any material information from, any application, report, or other document required to be kept or filed under this act, or any record required to be kept by this act; or

(5)  To make, distribute, or possess any punch, die, plate, stone, or other thing designed to print, imprint, or reproduce the trademark, trade name, or other identifying mark, imprint, or device of another or any likeness of any of the foregoing upon any drug or container or labeling thereof so as to render the drug a counterfeit substance.

(b)  Any person who violates this section is guilty of a felony and upon conviction may be imprisoned for not more than four (4) years, or fined not more than thirty thousand dollars ($30,000), or both.

37-2734A.  PROHIBITED ACTS D — PENALTIES. (a) Except with regard to activities authorized by Chapter 35, Title 37, it is unlawful for any person:

(1) It is unlawful for any person tTo use, or to possess with intent to use, drug paraphernalia to plant, propagate, cultivate, grow, harvest, manufacture, compound, convert, produce, process, prepare, test, analyze, pack, repack, store, contain, conceal, inject, ingest, inhale, or otherwise introduce into the human body a controlled substance.

(2)  It is unlawful for any person tTo place in any newspaper, magazine, handbill, or other publication any advertisement, knowing, or under circumstances where one reasonably should know, that the purpose of the advertisement, in whole or in part, is to promote the sale of objects designed or intended for use as drug paraphernalia.

(3)(b) Any person who is in violation of the provisions of subsections (1) and/or (2) of this section is guilty of a misdemeanor and upon conviction may be imprisoned for not more than one (1) year, fined not more than one thousand dollars ($1,000), or both.

37-2734B.  PROHIBITED ACTS E — PENALTIES. (a) It is unlawful for any person to deliver, possess with intent to deliver, or manufacture with intent to deliver, drug paraphernalia, knowing, or under circumstances where one reasonably should know, that it will be used to plant, propagate, cultivate, grow, harvest, manufacture, compound, convert, produce, process, prepare, test, analyze, pack, repack, store, contain, conceal, inject, ingest, inhale, or otherwise introduce into the human body a controlled substance.

(b) Drug paraphernalia delivered, possessed with intent to deliver, or manufactured with intent to deliver for activities authorized by Chapter 35, Title 37, shall not be considered unlawful under subsection (a) of this section.

(c) Any person who is in violation of this section is guilty of a felony and upon conviction may be imprisoned for not more than nine (9) years, fined not more than thirty thousand dollars ($30,000), or both.

SECTION 4.  TAX STAMP AMENDMENTS

That Chapter 42, Title 63, Idaho Code, be, and the same is hereby amended to read as follows:

63-4202.  DEFINITIONS. As used in this chapter:

(1) “Commission” means the state tax commission.

(2) “Controlled substance” means the entire amount of any drug or substance, whether real or counterfeit, as defined in section 37-2701, Idaho Code, when possessed in the following quantities and in violation of Idaho law:

(a)  More than [A41] forty-two and one-half (42 1/2) three ounces of marijuana; or

[A42] We had changed this to 86 grams so that personal marijuana use would not be subject to tax stamp laws. Since that is slightly over three ounces, we just changed the reference to three ounces.

(b)  One (1) or more growing marijuana plants; or

(c)  Seven (7) or more grams of any other controlled substance sold by weight; or

(d)  Ten (10) or more dosage units of any controlled substance which is not sold by weight.

(3) “Possess” or “possession” means, in addition to its ordinary meaning and tenses, to include hold, sell, manufacture, acquire, produce, purchase, ship, transport, transfer or import into Idaho.


Funding Source Statement from PAMDA

The Personal Adult Marijuana Decriminalization Act (PAMDA) 2022 creates no new bureaucracy for the state of Idaho to fund. There is no marketplace in marijuana established by PAMDA; the act merely ends civil and criminal penalties for what are now personal marijuana possession misdemeanors (amounts less than three ounces).

Section 37-3505(5) makes changes to asset forfeiture related to the personal use of marijuana in private by adults authorized by this Act. We forecast that cost to the state to be less than $100,000 annually.

Section 37-3505(6) restricts the use of marijuana odor as a probable cause for search of adults engaged in the personal use of marijuana in private. However, as marijuana use outside the narrow exceptions of this Act remains illegal, there will be no need to replace drug-sniffing police dogs that alert on the presence of marijuana. Retraining of K-9 handlers will be necessary to redefine the proper use of drug-sniffing dogs under the Act. We forecast that cost to the state to be less than $500,000 annually.

According to Idaho State Police, there were 6,032 arrests in 2018 for violations of Idaho marijuana laws. Statistics from ISP show that only about five percent of those arrests concerned buying, selling, or growing marijuana. PAMDA will make legal the possession of three ounces of marijuana by adults 21 and older, an amount currently classified under Idaho law as a misdemeanor. According to a report from the American Civil Liberties Union, each marijuana arrest in Idaho on average costs the state over $4,000 in police, jail, court, and probation costs. Therefore, savings for the state through the passage of PAMDA could be well over $22 million annually.

We believe the savings in law enforcement listed above make PAMDA an overall revenue saver for the state.


Fiscal Impact from the Secretary of State

Summary: The ballot initiative decriminalizes possession and use of marijuana by adults 21 years of age and over, where possession refers to amounts up to three ounces. Fiscal impacts come through training costs for law enforcement and courts, as well as changes in forfeiture and reimbursement. Total costs are expected to be million for the training and $0.1 million for changes in forfeiture and reimbursement. These are state costs. Local costs are expected at 7—10 times these.

Assumptions: Earlier interactions with agencies/courts this year regarding marijuana law changes and expected costs continue to be applicable.

Effects: Part of the costs come through new canine costs. 37-3505(6) in the ballot initiative indicates that odor cannot be used as it has in the past (for probable cause, reasonable suspicion, or search). 37-3505(5) changes forfeiture to exclude items and property associated with marijuana use consistent with the ballot initiative. 37-2732(k) removes reimbursement from misdemeanor convictions for state police and attorneys general. Funds associated with those reimbursements were directed towards the “drug and driving while under the influence enforcement donation fund” and the General Fund. Recent year’s deposits in these funds appear stable, and below $0.1 million from these sources.


Notes on PAMDA from the Attorney General’s Review, June 29, 2021

[A1] AG: Prop. I.C. § 37-3502 is a “Definitions” section, which defines marijuana “for the purposes of this Chapter” differently than the general controlled substances definition of marijuana set forth in Idaho Code section 37-2701 (t). Although those differences are likely irrelevant here, they should nonetheless be noted. The Act’s definition of marijuana, see Prop. I.C. § 37-3502(1), does not have an exception for hemp, while the newest rendition of Idaho Code section 37-2701(t), effective April 16, 2021, excludes hemp (or industrial hemp) possessed, grown, transported, etc., under the State Plan authorized by the federal 2018 Farm Bill from “marijuana.” Additionally, Idaho Code section 37-2701(t) defines marijuana without referencing tetrahydrocannabinol (“THC”), while the Act provides that a substance containing any THC is deemed to be marijuana. In short, the marijuana referenced in the Act is different from the marijuana defined in the general controlled substances provisions.

[A2] Yes. This is on purpose, so that anyone possessing “industrial hemp” as defined by the new hemp law without a license would be protected for 3 ounces of it. Adding THC to the definition ensures that other marijuana products, like edibles, purchased legally would be considered “marijuana” subject to the 3 oz weight limit.

[A3] AG: The Act next defines “personal amount of marijuana” [w]ith respect to a person who is at least twenty-one (21) years of age” as three ounces of marijuana. Prop. I.C. § 37-3502(2). “Personal use of marijuana” means, with respect to the same age limitation, “possession and usage of a personal amount of marijuana for ingestion by any means,” possession and use that “occurs on and within private property,” and “[w]ith permission of the property owner.” Prop. I.C. § 37-3502(3)(a)(i)-(iii).

[A4] AG: Prop. I.C. § 37~3503 (“Limitations”) sets out actions that are not protected or immunized from criminal or civil sanction by the Act. They are: (1) conduct that is negligent or constitutes professional malpractice under the influence of marijuana; (2) possession or “engaging in the personal use” of marijuana while on a school bus or in a correctional facility; (3) smoking or vaping marijuana (a) on “any form of public transportation,” (b) on “the grounds of any licensed daycare, preschool, primary or secondary school,” and (c) “where tobacco smoking is prohibited;” (4) operating, navigating, or being in actual physical control of any motor vehicle, aircraft, train, motorboat, etc., while under while under the influence of marijuana; (5) extractions of marijuana by using certain solvents; (6) using marijuana in a way unauthorized under the Act; and (7) cultivating live marijuana plants of any size or development. Prop. I.C. § 37~3503(8) is a statement that nothing in the Act requires (a) “[a]ny person or establishment” in possession of property to “allow a guest, client, customer, or other visitor to smoke marijuana on or in that property” and (b) a “licensed daycare, preschool, primary or secondary school to allow the personal use of marijuana on its property.” Several of the above limitations warrant further discussion.

[A5] AG: Subsection (2) of Prop. I.C. § 37-3503 precludes the “personal use of marijuana” on a school bus and a correctional facility. However, “personal use of marijuana” is specifically defined, in part, as possession and usage of marijuana that “occurs on and within private property.” See Prop. I.C. § 37-3502(3)(a)(ii) (emphasis added). Therefore, it is impossible to have “personal” use of marijuana on a public school bus or a public correctional facility. It is recommended that the word “personal” be excised from Prop. I.G. § 37~3503(2).

[A6] That makes sense. Removed “personal.”

[A7] AG: Prop. I.C. § 37-3503(4) may improperly deny the State its ability to present evidence by automatically excluding metabolite test results that, even though insufficient “standing alone” to prove marijuana intoxication, would be relevant when combined with other evidence of such intoxication. See State v. Stewart, 161 Idaho 235,237,384 P.3d 999, 1001 (Ct. App. 2016) (citation omitted) (“Evidence that is relevant to a material and disputed issue concerning the crime charged is generally admissible.”). Therefore, it is recommended that the “exception” language of Prop. I.C. § 37-3503(4) be removed or modified to make clear that, consistent with current law, driving or operating a motor vehicle under the influence of marijuana may not be proved solely by the mere presence of metabolites or components of marijuana.

[A8] Well, that’s kind of the point, to stop marijuana DUIs because “I smelled marijuana.” Added the word “solely.”

[A9] AG: Prop. I.C. § 37-3504(3), however, appears to conflict with Prop. I.C. § 373502(3)(a)(ii)-(iii), which defines “personal use of marijuana” as, in part, the possession and use of marijuana on and within private property occurring “[w]ith permission of the property owner.” Prop. I.C. § 37-3504(3) appears to contradict the definition of “personal use of marijuana” by requiring certain private property owners to allow (i.e., not unreasonably limit) the “personal use of marijuana.” Prop. I.C. § 37-3504(3) inversely suggests that a facility may “unreasonably” limit marijuana use if not doing so “would cause the facility to lose a monetary or licensing-related benefit under federal law or regulations.” Prop. I.C. § 37-3504(3) may invite a constitutional challenge based on vagueness with regard to what constitutes an “unreasonable limitation” on “a person’s access to or personal use of marijuana.” It may also invite an equal protection challenge based on restricting the private property rights of certain property owners and not others. In short, consideration should be given to fully excising Prop. I.C. § 37-3504(3) from the proposed initiative petition.

[A10] Good point – excised!

[A11] AG: Prop. I.C. § 37-3505(1)’s provisions would impact existing court orders prohibiting the possession and use of marijuana; existing contractual agreements in regard to employees’ use of controlled substances in, or affecting, the workplace; and existing occupational or professional licensing board orders, statutes, and regulations that prohibit licensees from using marijuana. Finally, the phrase “any right or privilege” could be challenged as unconstitutionally vague due to the provision’s effect on existing court orders and contracts.

[A12] Yes. Yes, it would. The whole point is that responsible adult use of marijuana is not punished

[A13] AG: As a practical matter, Prop. I.C, § 37-3505(1)(a)-(c) would, on its face, allow a series of “personal amount of marijuana” sales and deliveries to be made as long as each transaction involved three ounces or less. The provision allows persons at least 21 years of age to engage in “[o]ffering or providing a personal amount of marijuana” to others at least 21 years of age. Such solicitations and/or deliveries could take place in a variety of settings such as bars, restaurants, stores, motels, and universities-with the permission of the property owners. Prop, I.C. § 37-3502(3)(a)(iii).

[A14] Yes. Yes, it would.

[A15] AG: Assuming compliance with the other provisions of Prop. I.C. § 37-3505(1), subsection (1)(c) authorizes “[t]ransporting a personal amount of marijuana from a jurisdiction where the marijuana was legally purchased.” The problem with that subsection is that, as discussed in Section B below, marijuana possession (etc.) is not legal under current federal law. Therefore, it is recommended that the last part of subsection (1)(c) be amended to read “legally purchased under state law.”

[A16] Added.

[A17] AG: Although the presumption of Prop. I.C. § 37-3505(2) is likely intended to apply only to persons at least 21 years of age, it does not read that way. As a result, persons younger than 21 could use the presumption-most notably in criminal cases for misdemeanor possession of marijuana. If that is not the intention of the author(s) of the Act, it is recommended that a 21-year age restriction be added.

[A18] Added.

[A19] AG: The term “administering” in Prop. I.C. § 37-3505(4)(c) could also be challenged as unconstitutionally vague.

[A20] Agreed, and isn’t necessary (how do you help someone’s “personal, not medical” use?) so it’s deleted.

[A21] AG: Prop. I.C. § 37-3505(5) prohibits the seizure or forfeiture of property otherwise subject to seizure under state or local law if that property was used in “any activity permitted under this Chapter[.]” The provision does not apply if “the basis for the forfeiture is unrelated to the personal use of marijuana.” (Emphasis added.) That exception is subject to constitutional challenge based on the ambiguity of what “unrelated” means. For example, a house used for trafficking large amounts of marijuana could also have residents who use marijuana in accordance with the Act. Whether a seizure of the house based on trafficking in marijuana would be considered “unrelated to the personal use of marijuana” would be subject to conjecture. It is recommended that the last part of the exception be modified to read (or similarly read), “This subsection does not prevent civil or criminal forfeiture if the legal basis for the forfeiture is not the personal use of marijuana as authorized under this Chapter.”

[A22] Makes sense – so added.

[A23] AG: Prop. I.C. § 37-3505(6) states that the “odor of marijuana does not constitute probable cause or reasonable suspicion, nor may it be used to support the search of a person or property of a person.” Such a provision would be unprecedented in carving out an exception to consideration of the “totality of circumstances” that has been the hallmark for determining whether there is reasonable suspicion for a temporary detention under Terry v. Ohio, 392 U.S. 1,88 S. Ct. 1868,20 L. Ed. 2d 889 (1968), or probable cause for an arrest or issuance of a search warrant. As a practical matter, this provision would make policing illegal marijuana, including violations not otherwise protected by the Act, such as marijuana trafficking, more difficult by eliminating the odor of marijuana as a factor to be considered in developing reasonable suspicion and probable cause.

[A24] Not unprecedented, New York, among other states, no longer allows searches based on marijuana smell. However, added “alone in the presence of persons aged 21 years or older engaged in activities authorized by this Act”

[A25] AG: The obvious problem with the above provision is that marijuana possession and use is currently prohibited by federal law. Therefore, the entire provision is rendered futile unless and until marijuana is legalized under federal law. Also, this provision is internally inconsistent with the requirement that the “personal use of marijuana” be done with “permission of the property owner,” Prop. I.C. § 373502(3)(a)(iii). If such permission were denied, the property owner would be in violation of the anti-discrimination provision of Prop. I.C. § 37-3506(1). The different treatment for different types of private property owners could give rise to constitutional equal protection challenges.

[A26] I think the AG misreads what “doing so” refers to, but as this was a protection for medical marijuana and is kind a already covered by the “permission of owner” part, I have stricken it.

[A27] AG: Prop. I.C. § 37-3506(2) states that employers are not required to allow marijuana to be ingested in the workplace, or to allow employees to work while under the influence of marijuana. The subsection has a caveat similar to the one discussed above with regard to Prop, I.C. § 37″3503(4) (operating motor vehicles (etc.) while under the influence of marijuana),

[A28] By design. No more treating marijuana-using workers differently than beer-using workers.

[A29] AG: Under subsection (3) of Prop. I.C. § 37-3506, the use of marijuana authorized by the Act do.es not constitute the “use of an illicit substance or otherwise disqualify a person from receiving medical care,” including organ and tissue transplants. This section interferes with the professional judgment of medical professionals and could result in the override of a valid and appropriate exercise of medical judgment. This could subject medical professionals to potential malpractice claims by requiring them to perform transplants that would not otherwise be considered medically appropriate.

[A30] Numerous states have this provision and it’s not been controversial.

[A31] AG: Prop. I.C. § 37-3506(4) states that a person “shall not be denied custody of or visitation rights or parenting time with a minor” for conduct allowed under the Act. Subsection (4) would preclude family law courts from intervening when a custodian’s use of marijuana pursuant to the Act nonetheless negatively affects children. This could prevent courts from issuing orders designed for the protection of children in a variety of situations, including, but not limited to, when the parent leaves marijuana readily accessible to children or is not properly caring for their children.

[A32] If a parent is not properly caring for children, use of marijuana is irrelevant to the proceeding. If marijuana is left readily accessible, that can be shown to be negligent.

[A33] AG: Prop. I.C. § 37-3506(5) precludes state and local agencies from restricting or infringing upon a person’s right to own or possess a firearm or obtain a firearm certification for conduct allowed under the Act. This may conflict with existing federal laws and regulations related to the possession and use of firearms.

[A34] Where those conflicts exist, federal firearms law would supersede state law. Feds cannot dictate to state and local agencies how to uphold state law.

[A35] AG: Prop. I.C. § 37-3506(6) prohibits schools, landlords, and employers from being penalized or denied a benefit for “enrolling, leasing to, or employing” a person engaged in conduct under the Act. For the reasons stated previously herein, this provision may conflict with state and federal regulations concerning employment and licensing of certain individuals. It may also conflict with existing contracts and leases. It may also give rise to constitutional equal protection challenges because of the different treatment accorded to different types of employers and property owners.

[A36] All this does is protect those entities from being penalized for accepting pot smokers.

[A37] AG: First, the Act seeks to amend Idaho Code section 37-2732(k) (restitution for costs of law enforcement investigations) by excising the words “or misdemeanor” from its initial qualifying phrase which currently reads, “Upon conviction of a felony or misdemeanor violation under this chapter[.]” As a result, Idaho Code section 37-2732(k) would allow courts to “order restitution for costs incurred by law enforcement agencies in investigating” violations only in cases resulting in felony convictions. That modification sweeps far more broadly than the stated purpose of the Act and would prohibit recovery in nonmarijuana misdemeanor cases. Moreover, because the proposed modification to Idaho Code section 37-2732(k) is unrelated to the Act, it likely violates the single-subject rule of article III, section 16 of the Idaho Constitution

[A38] Agreed. Removed strikethrough.

[A39] AG: By excluding marijuana use “as authorized by Chapter 35, Title 37,” the modification allows persons to become intoxicated from using marijuana and be in the described public areas. By its own terms, however, Prop. I.C. § 37-3503(4) specifically states it does not authorize someone to operate any motor vehicle, aircraft, train, motorboat, or other motorized form of transport while under the influence of marijuana. To eliminate the conflict between these two sections, it is recommended that the proposed amendment to Idaho Code section 37-2732C(a) be removed from the proposed initiative petition.

[A40] How is this a conflict? The Act would allow me to use marijuana on private property, like, say, someone’s boat, but forbid me from operating it. I could use marijuana in my own home, get high, then go take a walk in the park (without smoking or carrying any marijuana with me).

[A41] AG: The proposed amendment to Idaho Code section 63-4202(2)(a) would change the identified quantity of marijuana from 42½ grams to 86 grams. This section of the Idaho Code imposes an illegal drug tax on certain amounts of controlled substances. The amendment proposes 86 grams, which equates to approximately 3.033 ounces. We note only that the amendment results in an amount that is slightly more than the 3 ounce personal use limit contained in Prop. I.C. § 37-3502.

[A42] Changed to “three ounces.”