Whether or not to arrest for possession is up to police officers; those arrested could face stiffer penalties in district court if prosecuted.

The city of Wichita has voted to remove possession of marijuana and fentanyl test strips as violations in the municipal code, in essence declaring possession of those items legal within the city limits.

But there is a huge reality that the community needs to be fully aware of. This vote does not mean you won’t be in legal trouble if you are stopped by the police and have pot or fentanyl test strips in your possession.

That’s because possession of ANY amount of marijuana is illegal in the state of Kansas and possession of fentanyl test strips is considered possession of drug paraphernaiia by state law. That leaves it up to a police officer to decide whether or not to make an arrest. 

Under former WPD Chief Gordon Ramsay, the department had moved towards not arresting or charging individuals caught strictly for possession of marijuna. The current process under interim chiefs isn’t as clear.  

If an officer  does make an arrest, the case moves to the Sedgwick County District Attorney, instead of to the Wichita Municipal Court, for his office to determine whether or not to move forward with a prosecution..

It also means that an offender will not have the ability to plead guilty and pay the $50 fine the city had set for minor offenses. You will instead face much higher expenses in District Court.

The provision to allow an offender to apply for expungement (getting it removed as though it never happened if you don’t have any new offenses) would stay in place, but it would mean that a conviction would stay on the record for three years and require the payment of hefty fees to make removal happen.

Mayor Brandon Whipple pointed out that a drug conviction is an “economic death sentence” since it appears on a background check and almost always means a potential employer will reject the applicant.

The issue puts a spotlight on a racial disparity that in part guided the city council’s decision to remove marijuana and fentanyl test strips from the city’s municipal code. Statistics show that while African Americans make up only 18% of Wichita’s population, they are 45% of all arrests 35for marijuana possession. And of the remaining 55% of the arrests, 35% are Hispanics. That means that people of color make up almost 70% of all the arrests in the city.

Searches for marijuana or drug paraphernalia are frequently an add-on to minor traffic stops, which the Wichita Police Department has pledged to reduce.

Will District Attorney Prosecute?

The Wichita Municipal Court prosecutes between 750 and 850 people annually for misdemeanor marijuana offenses. 

Sedgwick County District Attorney Marc Bennett told the council that his office does not have the infrastructure to absorb those cases. He pledged to look at any case on its merits but emphasized that the county does not have the capacity to absorb all the cases.

In the aftermath of the council vote, some members of the county commission have suggested that the county bill Wichita for the cost of prosecuting offenders that the city has declined to charge.

Councilman Brandon Johnson said that removal of marijuana from the municipal code will send a strong message to Topeka that the will of the people of Kansas is that marijuana be decriminalized in the state. He said he believes that Wichita’s action will result in action in the next legislative session.

Conflict over fentanyl test strips

The combination of removing fentanyl test strips from the city code at the same time marijuana possession was removed spurred some conflict in the council, with some members wanting them separated.

Mayor Whipple made an emotional appeal for test strips to be decriminalized because they can save lives and can be a way for parents to protect their children.

The strips allow testing of a substance to determine if it contains fentanyl which is responsible for a steep rise in drug overdoses and deaths in Wichita and across the nation.

The mayor talked about his own family’s experience with addiction and said that the current law would require that the person in possession be required to undergo rehabilitation treatment. He said that standard would require his mother to undergo rehab even though she has never used any drug and only had the strips to try to protect his addicted sister.

“The assumption is that the person in possession is testing drugs to determine if they contain fentanyl in order to avoid ingesting that drug,” he said. “I see that as a good thing. With fentanyl being a major killer right now, does it really make sense to criminalize a tool to keep people safe?” he asked.

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