Will your ticket for possession of marijuana go to court? It may depend on who writes it

LINCOLN, Neb. (KOLN) - Whether a person ticketed for possession of a small amount of marijuana actually gets in trouble, may depend on what law enforcement agency in the Lincoln area writes the ticket.

It all comes down to if the prosecuting attorneys believe it’s worth sending the drug out for a lab test.

Since possession of marijuana is against both state and city law, Lincoln police will typically file their tickets with the city attorney. While deputies will do so with the county attorney. The two agencies are handling cases involving possession of small amounts of the drug, very differently.

Pat Condon, Lancaster County Attorney, told 10/11 NOW, he hasn’t prosecuted a marijuana infraction case all year, which has been the case since 2019 when legislators voted to legalize the production of hemp in Nebraska.

“Marijuana, up until the legalization of hemp was one of the substances that we didn’t need to have a lab report to get a conviction,” Condon said. “Because officers could testify that based on their training, education, and experience. They knew what marijuana looked like, they knew what it smelled like and they could say this is marijuana.”

Because of this, out of 198 marijuana infraction cases filed so far in 2022, they’ve prosecuted zero. He said it’s because of the limited availability of testing and costs. In a 2019 story, Condon told 10/11 he was quoted $1,500 for a test, and they continue looking for better options.

“There may be an opportunity if things change in the lab, if we have more labs that are able to quantify the THC in the substance, then we have 18 months that we can go back and look at those and see if we want to charge,” Condon said. “But right now, that’s just not something we’ve been doing.”

Condon said they typically save testing for felony level or distribution cases.

The city attorney’s office is handling the cases differently.

Data 10/11 NOW requested shows out of 237 marijuana possession cases filed in the last year, they’ve only declined to prosecute 13 of them. Jessica Kerkofs, Chief Assistant City Attorney said marijuana cases aren’t treated any differently than any other cases.

“The hemp statute took away considerations like sight and smell that we would have relied on in the past during trial, but we will determine whether or not to file a case based on the totality of the facts presented,” Kerkofs said.

She said tests only cost them about $50 and they test it when the case looks like it’s going to go to trial.

“I can’t speak to the county’s decision,” Kerkofs said. “We have a valid city law and resources available to enforce it; proceeding is our obligation under the city code.”

While the attorneys have different approaches to these cases, the Lincoln Police Department, Lancaster County Sheriff’s Office, and the Nebraska State Patrol, had a united message; marijuana is still illegal in Nebraska and whether a case is prosecuted has no bearing on the decision to write a ticket.

“We’re still going to cite or arrest depending on the circumstances,” Lancaster County Sheriff Terry Wagner said. “Then you know, things could change rapidly and prosecution can take place. they need to remember it’s still against the law. It’s just like speeding down the interstate. The speed limit is 75 miles an hour and if you’re going to continue to do that, you’re taking a chance of some enforcement action because of that.”

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