New Marijuana Laws: Just a Smokescreen

Flickr/Rupert Ganzer

A medical marijuana dispensary across the border in Portland, Oregon. 

Before Washington state voters legalized marijuana in the 2012 election, pot was easy enough to access on the black market. Five percent of state residents have used the drug in one form or another while burning through a remarkable 187,000 pounds per year, according to estimates by Washington’s Office of Financial Management. Getting high without getting arrested wasn’t much of a problem, either. Washington decriminalized medical marijuana 15 years ago, and today dozens of dispensaries are operating under protection of state law. In addition, Washington’s biggest city, Seattle, had instructed its police force to treat personal possession of marijuana as the lowest law-enforcement priority.

So what’s the big deal about legalization in this already weed-friendly state? The new law doesn’t end the legal battle over marijuana so much as it changes the rules of engagement: Growers and dealers can look forward to a bona fide business license at the end of the year, but to get it they may need to undergo an FBI criminal background check, opening up the risk of arrest under federal law. And while users can say goodbye to petty drug busts, they’ll continue to face dubious charges of driving under the influence of drugs.

Participating in Washington’s legal marijuana market is going to take a leap of faith. Even now, police and prosecutors have the tools to keep treating people who buy and sell marijuana as criminals. The question is, will they set aside those tools in deference to the will of Washington voters? Here’s a little advice from Jeffrey Steinborn, a Seattle-based criminal lawyer who defends marijuana cases: Don’t kid yourself.

Medical marijuana laws across the country have not stopped the U.S. Justice Department under President Barack Obama from regarding dispensary operators as illicit drug traffickers. In California, police acting on a federal search warrant seized almost 2,000 marijuana plants and 40 pounds of processed marijuana from Matthew Davies, who ran his business according to state permitting rules. A federal grand jury indicted Davies on marijuana cultivation charges last summer. He’s facing a five-year mandatory minimum prison sentence. There’s no reason to believe the federal government won’t take the same approach toward legal marijuana suppliers in Washington. Applications for state-issued licenses to grow and sell marijuana might give federal prosecutors cause to open an investigation. “We put out the red carpet for the Trojan Horse,” Steinborn says.

Washington’s law also leaves users vulnerable to arrest. Steinborn says that in the past 6 months he’s taken on more marijuana-related driving-while-intoxicated cases than he did in the previous 44 years. He attributes the increase to a provision in the new marijuana law that lowers the burden of proof in these cases. Before legalization, prosecutors had to show that a driver was impaired by drug use and that the impairment affected the driver’s performance behind the wheel. Steinborn says these cases were exceedingly rare because prosecutors had a hard time proving that drivers were actually impaired. Now all that’s needed is a test showing at least 5 nanograms per milliliter of THC, marijuana’s active ingredient, in an adult driver’s blood or any amount of THC in a younger driver’s blood.

“Officers and prosecutors are very much tuned in to this,” Steinborn says. “To imagine police and prosecutors would ignore a tool that makes their lives so easy borders on the delusional.”

Washington voters dived straight into the deep end of marijuana-law reform in November when they approved the legalization initiative by an 11-point margin. They instructed state leaders to license and regulate marijuana so anyone over age 21 can grow it, sell it, and enjoy it. They approved a 25 percent sales tax on the drug and specified how the tax revenues should be spent. The bulk of the proceeds will pay for public-health programs, substance-abuse prevention, and contributions to a state general fund. Voters also did away with the state’s marijuana-related criminal and civil penalties.

Decriminalization goes to the heart of the initiative’s intent. The first words in the text of the law say, “The people intend to stop treating adult marijuana use as a crime.” But the effect of the law is not so black and white because of the federal prohibition against marijuana and the DUI provision added to Washington statute. Alison Holcomb, who led the marijuana campaign, known as Initiative 502, says that the DUI provision was included to tamp down opposition based on public-safety concerns. Fears about drugged driving played a significant role in hindering California’s bid to legalize marijuana in 2010, says Holcomb, who is the drug policy director for the American Civil Liberties Union of Washington State. That measure did not have the same tough stance toward DUIs, and it went down in defeat.

During Washington’s legalization campaign, Steinborn saw so much potential for government crackdowns on legal marijuana that he encouraged people to vote against it, making himself a pariah in marijuana-reform circles. “We took this great opportunity to do something earthshaking, and we blew it,” he says.

Judging if someone has been driving under the influence based only on a drug test uses a “per se” legal standard, the same one that applies in alcohol-related DUI cases. Under the per se standard, there can be no quibbling about whether and to what extent marijuana actually influences the way a driver operates a vehicle. If an adult driver exceeds the THC limit of 5 nanograms, or a young driver has any amount of THC in the blood, that is by definition illegal. Recent medical research on marijuana has pointed out problems with this approach. One study released by the National Institutes of Health in 2010 shows that the effects of marijuana vary more between individuals than the effects of alcohol because of differences in tolerance, smoking technique, and absorption of THC. The NIH report also notes that while there’s no dispute alcohol increases traffic safety risks, marijuana studies have been inconclusive.

With no proven link between impairment and THC concentrations in the blood, the National Organization for the Reform of Marijuana Laws (NORML) opposes “zero tolerance” per se standards like the one that applies to minors in Washington. NORML does not endorse the 5-nanogram standard, either. (Colorado, which also legalized marijuana for adult recreational use in November and is the only state besides Washington to have approved such a measure, has debated per se laws in its legislature but not passed them into law. About a dozen other states in addition to Washington use the per se standard. The rest follow an effect-based standard that requires prosecutors to show how drugs undermined a driver’s performance behind the wheel.) It’s known that THC levels in the blood peak quickly after inhalation. It’s also known that maximal impairment occurs 20 to 40 minutes after smoking, when THC levels are declining. Paul Armentano, deputy director of NORML, says what’s needed are better tests for impairment, not THC.

By the same token, Armentano says he’s not so troubled by Washington’s adoption of the per se standard because he doesn’t expect it will change police procedures. Police had the power to order blood draws in DUI cases before marijuana legalization. As an expert witness, Armentano says he has seen cases where a toxicology report reveals no THC and prosecutors still move forward with other evidence, such as results from a field sobriety test and testimony from a drug-recognition expert. “The toxicology report is the cherry on top of the state’s case,” he says.

Holcomb stands behind the scientific basis of the 5-nanogram THC limit and the zero-tolerance policy toward young drivers, but she also points out some exceptions that provide leniency for youths. These include a separate legal statute for minors, as compared with adults, and a decision by the state toxicology lab to only return THC test results when the level is 1 nanogram or higher. “From ACLU’s perspective, marijuana use shouldn’t be a crime for anybody,” she says.

If DUI arrests occur only when traffic safety is at risk, and not just because the police spot a Burning Man-bound stoner (easy prey), marijuana-related DUI cases should remain a relative oddity. Driving under the influence of drugs is reported as a contributing factor in less than 1 percent of collisions and less than 3 percent of fatalities on state roads in Washington. This includes all drugs that were illegal in 2011, including but not limited to marijuana (the Washington State Department of Transportation does not collect information on driving under the influence of marijuana specifically). Drunk driving is far and away a bigger problem, accounting for more than 4 percent of collisions and 20 percent of fatalities on state roads.

Ending federal prosecutions against state-sanctioned marijuana growers is a tougher nut to crack. Take no consolation from President Obama’s recent statement that he has bigger fish to fry than recreational marijuana users in the Northwest. Coastal Washington is a popular destination for fishermen—with 187,000 pounds of marijuana in the supply chain, landing a big drug bust in this place ought to be like shooting fish in a barrel.

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