Maine legalized the medical use of marijuana but it’s still contraband when crossing the secure perimeter of the state’s jails and prisons, and illegal in the eyes of the federal government.

Now, dealing with a person’s medical marijuana when they are arrested for another offense is posing a sticky legal issue for Maine law enforcement. Several sheriffs and jail administrators say they want no part of the problem and have left it in the hands of arresting officers.

“I’ve tried to insulate us. I’m not going to be the only one collecting medical marijuana,” said Cumberland County Sheriff Kevin Joyce, who oversees the state’s busiest jail.

Storing the marijuana in jail is problematic because jails lack secure evidence lockers. But jail officials are more worried about how they would return the marijuana to a released inmate without technically running afoul of federal laws that prohibit dispensing marijuana even if the state allows it.

Joyce recently informed the police chiefs in Cumberland County that the jail would not be accepting medical marijuana along with inmates’ other property, including medication that is transferred to the infirmary. “We’re going to give it back to the officer and they have to destroy it.”

Or not, though police agencies haven’t gotten there yet.

Acting Portland Police Chief Michael Sauschuck said his department’s lawyer is studying the issue.

“It’s certainly an interesting problem that puts us in the middle of state law and federal law, so we’re currently looking at all our legal options before we make a final policy decision,” Sauschuck said.

Col. Mark Westrum, administrator for the Two Bridges Regional Jail serving Lincoln and Sagadahoc counties and chairman of the state Board of Corrections, was the first to encounter the problem about six weeks ago.

An inmate was dropped off for violating probation and among his possessions was a jar of marijuana. The marijuana was taken to the jail’s infirmary, where it could be stored securely. In a few days, the extremely pungent aroma quickly spread through that area of the jail.

Westrum said he was faced with a dilemma as he saw it: violate federal law by returning the marijuana or violate state law by destroying it.

He opted for the latter, though neither the inmate nor anyone else has taken any action.

Even though it is medicinal, the jails are not obligated to provide it and it is still illegal inside the jail because of exemptions in the law, according to a letter from Assistant Attorney General Diane Sleek.

Westrum concedes it may be unlikely that the U.S. Attorney would go after law enforcement for giving medical marijuana back to someone who is entitled under state law to possess it, but that’s in the current political climate. In October, the Obama administration announced it would not prosecute medical marijuana users and caregivers.

“Administrations change. Rules change. I would like to think we would not be prosecuted for giving somebody’s medical marijuana back to them, but who knows?” Westrum said. “I’d rather take my chances and see what the state of Maine is going to do.”

In cases where a person is arrested at home, the marijuana can be left there. Police officials have suggested returning the marijuana to licensed dispensaries, though that would not work if a person’s supplier is a registered caregiver.

Roy McKinney, director of the Maine Drug Enforcement Agency, said his agents have come across suspects who have permission to possess medical marijuana. In those cases, he said agents have seized the illegal drugs — including as much as 10 pounds of marijuana — while leaving behind two and a half ounces, the legal maximum for a person who has a doctor’s note.

According to a state report, as of March 16, there were 1,100 patients who had been issued registry identification cards or had them pending, cards which allow them to possess medical marijuana.

Like most sheriff’s in the state, Joyce not only oversees a jail, he has deputies performing law enforcement and who must abide by the new policy.

“What I’ve advised patrol deputies is someone who has medical marijuana can secure it at their residence, then do that. It makes it much simpler,” he said. “Otherwise, we are going to have to take it for safekeeping then try to figure out how we deal with giving back or not.”

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