New Mexico medical marijuana patients won't face prosecution for traveling through U.S. Customs and Border Patrol checkpoints according to New Mexico United States Attorney Damon Martinez. But they could still have their pot seized by U.S. Customs and Border Patrol agents.
Rep. Bill McCamley, D-Mesilla Park, tells SFR that Martinez called him last week to assure him that federal prosecutors here are following Department of Justice enforcement guidelines outlined in an August, 2013 memo prepared by US Deputy Attorney General James M Cole.
Martinez again confirmed his office policy in a letter delivered to the freshman representative on Monday.
"My Office has not initiated any federal prosecutions in this District, originating at a CBP checkpoint or elsewhere, involving persons who claimed that the marijuana in their possession was possessed in accordance with a lawfully-obtained prescription issued in the State of New Mexico," writes Martinez.
Still, patients who are caught drugged-driving, Martinez says, could face arrest.
Last summer, in SFR's cover story No Easy Ride, then-pot courier Josh Zapata said he was forced to drive miles out of the way to deliver medication to patients in Southern New Mexico. To avoid running afoul of the law, SFR watch Zapata plot his delivery routes along back roads, often driving up and down steep mountain passes or cruising alone through nearly deserted mesas to avoid these Border Patrol checkpoints.
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In May, McCamley sent a letter to U.S. Customs and Border Patrol Commissioner Gil Kerlikowske asking why Border Patrol officers continue to seize patients' medical marijuana.
While the Cole Memo gives prosecutors discretion on prosecution, Customs and Border Patrol still considers all marijuana illegal. Patients, even with program cards, could still have their medication taken away.
Martinez suggests that remains a reality, “Certain agencies, including the CBP, require their officers to seize any marijuana they come across while acting in the scope of their official duties because federal criminal statutes prohibit the possession of marijuana, regardless of quantity.”
McCamely wants that agency to adopt the DOJ's guidelines so patients hemmed in behind checkpoints can travel north, often for medical appointment in Albuquerque and Santa Fe, with their legal marijuana.
“It is up to the Homeland Security Department and Border Patrol to change their policies and end geographic discrimination against medical marijuana patients that live in areas landlocked by their checkpoints,” says McCamley. “Not only does this policy hurt cancer patients, veterans with PTSD, and other sick people, it is fiscally irresponsible as they are using public resources holding people who will not be prosecuted.”
McCamley would like to see federal agencies, including the Federal Deposit Insurance Corporation that regulates banking, have a uniform approach on marijuana issues.
“A lack of consistency with federal agencies makes it very difficult for the NM State Legislature to discuss any new marijuana policy,” says McCamley referring to state tax and regulation models that have been implemented in Colorado and Washington after those two states’ voters legalized marijuana for recreational use.
In his July 7 letter, Martinez suggests his office will continue to prosecute residents who are suspected of distributing pot to minors and funneling marijuana money to criminal enterprises, gang or cartels. Medical marijuana, Martinez writes, cannot be "used as a cover or pretext for the trafficking of other illegal drugs or other illegal activity. The feds, according to Martinez, could still file charges against patients who are caught growing their medication on public lands or cultivating the weed while in the possession of a firearm.
For now, McCamley is encouraging the feds to get on the same page, “Or step completely out of marijuana enforcement and leave policy setting up to each state."