WICHITA, Kan. (AP) - A recent Kansas Supreme Court decision has raised questions about enforcement of the state’s drug tax stamp law that went into effect in 1987 and was previously upheld by the same court.
Last month the court ruled a defendant can’t be convicted of possession of marijuana and possessing the same marijuana without a tax stamp, The Wichita Eagle (https://bit.ly/1aHQchj ) reported.
That ruling in the case, State v. Hensley, prompted the prosecutor in the state’s second most-populated county to dismiss some tax-stamp charges and vow not to file them in the future in routine drug cases.
“We’re just not going to file them unless there are some exceptional circumstances involved,” Sedgwick County District Attorney Mark Bennett said.
Kansas imposes a tax of $3.50 on each gram of marijuana, and people who pay the levy receive a tax stamp, though the state is forbidden to collect information about the payers. Department of Revenue spokeswoman Jeanine Koranda said Tuesday that the agency’s attorneys believe that even with the latest Supreme Court ruling, it can still assess and collect the tax but does not know how much is collected now.
The Supreme Court case involved Salina County resident Michael Rae Hensley, who was charged with possession of marijuana with intent to sell after officers found 200 grams - or about 7 ounces - of marijuana in his freezer in 2007.
Investigators also confiscated a baggie containing marijuana, a partially burned marijuana cigarette, some rolling paper and a pipe. Hensley was convicted of possession of marijuana, possession of marijuana with no tax stamp affixed and possession of drug paraphernalia. He was placed on probation but appealed the convictions.
The court rejected several points of Hensley’s appeal but agreed she should not have been convicted of both the possession and tax-stamp charges.
“They arose from the same conduct, and by statutory definition, they constituted a single crime,” the court said in its ruling.
Defense lawyers argued that same point before the same court shortly after the law passed more than 26 years ago, but the court made it clear that “one is a drug offense and one is a tax offense,” said Randall Hodgkinson, an attorney with the Kansas Appellate Defender’s Office who represented Hensley in his appeal.
An unrelated Supreme Court ruling in 2003 changed the court’s test for determine what constitutes double jeopardy, he said. The new test looks at the individual elements of a law, and the court decided the elements of the state’s marijuana possession law matched the elements of the marijuana tax law.
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Information from: The Wichita (Kan.) Eagle, https://www.kansas.com
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