Memorandum

City of Lawrence

Legal Services

 

TO:

David L. Corliss, Assistant City Manager & Director of Legal Services

 

FROM:

Scott J. Miller, Staff Attorney

 

Date:

November 15, 2005

 

RE:

Proposed Marijuana Ordinance

 

At the City Commission’s request, I have drafted two versions of Ordinance 7938.  Each version imposes a minimum fine of $300 for a violation of the ordinance, but provides for a suspension of part of or the entire minimum fine in certain circumstances.

 

The two competing versions are similar in structure.  They both provide that the court must find that there are substantial and compelling reasons for the suspension of all or part of the minimum fine.   The substantial and compelling reason standard was chosen because it is identical to the standard used to justify sentencing departure under the Kansas Sentencing Guidelines Act, K.S.A. 21-4701 et. seq., which applies to felony convictions in the district courts.  The term compelling when used in this context means that a court is forced by the facts of the case to leave the status quo or go beyond the ordinary.

 

The first of the two proposed ordinance versions stops there, leaving it entirely to the court to decide what factors to consider in determining whether this test is met.  The second version goes a step further by listing some factors that the court may consider in deciding whether a portion of the fine should be suspended. These include:

1.       The financial status of the defendant.

2.       The amount of controlled substance or contraband possessed.

3.       The lack of criminal history of the defendant.

4.       Any drug treatment or educational program voluntarily completed by the defendant before sentencing but subsequent to being charged under this article.

5.       The defendant’s level of cooperation with law enforcement including the truthful identification of the source of the controlled substance or contraband possessed by the defendant.

 

In addition to these factors, the court may consider any other factors present in the case to determine whether it is appropriate to suspend some of the minimum fine.

 

Please let me know if more clarification of these issues is needed, or if additional modification of the ordinance language is desired.