Attorney On New Approach Washington: ‘This Is Not Marijuana Legalization’


Photo: Douglas Hiatt
Douglas Hiatt: “It is not legalization, and it is going to criminalize patients in this state”

​The New Approach Washington initiative, which has gained financial support and big backers for relaxing Washington state’s marijuana laws, is not real cannabis legalization, according to Seattle-based activist/attorney Douglas Hiatt of Sensible Washington.

“It is not legalization, and it is going to criminalize patients in this state,” Hiatt told Toke of the Town Monday afternoon of New Approach Washington. “They’re using polling to justify their positions, saying we have a ‘nervous public,’ and that we have to win at all costs.”
The New Approach Washington initiative would authorize the Washington State Liquor Control Board to regulate the production and distribution of marijuana for sale to adults 21 and older through state-licensed stores. A new marijuana excise tax would be earmarked for prevention, research, education and health care. State and local retail sales taxes would be directed to the general fund and location budgets.

Unfortunately, the initiative would not allow the cultivation of marijuana by recreational users (medical marijuana patients in Washington are already allowed 15 plants). Recreational cannabis users would be required to buy their supply at state-licensed stores. 

Photo: THC Finder

​Adults would be allowed to possess only one ounce of marijuana at the time; possession of more than that amount could still result in criminal charges. The limit for marijuana-infused foods would be 16 ounces in solid form, and 72 ounces of cannabis-infused liquids.
Another sticking point is the codification of a THC blood level of five nanograms per milliliter (5 ng/ml) as per se driving under the influence of marijuana. Such a rule could criminalize any driving by most medical marijuana patients, although very few daily medicinal users would be impaired at that level.
Medical marijuana patient advocates say that such a low — and arbitrary — cut-off point would in effect ban patients from driving, since many of them never drop below 5 ng/ml, even when completely unimpaired.
“They are trying to defend something for which there is no scientific support,” Hiatt said of the 5 ng/ml cut-off point. “The science is not there — it’s not there to support a 5 ng/ml limit for THC. It would criminalize every patient in the state.”
Hiatt told us that criminalizing patients is not the way to get recreational marijuana for everyone else.
“If you could get marijuana legalized, but you were going to have to shoot your grandma in the head, you wouldn’t do it,” Hiatt said. “This ‘end justifies the means’ thing is totally wrong.
“They’re talking about how close we are to the tipping point,” Hiatt told me. “Well, we don’t get past the tipping point by criminalizing patients.
“This isn’t real legalization, anyway,” Hiatt claimed. “It’s bullshit. I’d never work with them, because you can see they’re operating on the lowest common denominator. ‘Let’s stick our finger up in the air and see what could win.’ That’s it. They don’t care if they criminalize patients.”
According to Hiatt, if New Approach Washington does pass, patients would be stuck with the cannabis DUI law for at least two years, and maybe forever. “When something like this DUI rule gets in, good luck getting rid of it,” he told Toke of the Town.
“They’re going to waste all the money real reform work could have been done with — and waste it on a measure that, if it passes, would criminalize every goddamned medical marijuana patient in Washington state,” Hiatt said.

Photo: AP
Alison Holcomb, New Approach Washington: “I’d also add that advocating for proposals that Washington voters will not pass … is not a viable path to legalization”

​According to Alison Holcomb of New Approach Washington, fact sheets found on the FAQ portion of New Approach’s website [PDF] address Hiatt’s objections.
The fact sheets assert that a 5 ng/ml THC level “is analogous” to a .08 blood alcohol content, but that assertion is unproven and quite debatable — with possibly hundreds of patient DUI arrests hanging in the balance.
Cited as evidence on the NAW site [PDF] is a scientific study which, crucially, measured THC levels of recreational — as opposed to medicinal — marijuana users. Typically, medical marijuana users, especially those dealing with heavy nausea and pain, smoke much, much more than recreational users, resulting of course in higher acute and residual THC blood levels.
For example, Denver Westword medical marijuana dispensary critic William Breathes  tested three times over the proposed legal limit of 5 ng/ml while completely sober and unimpaired.
Breathes took the test when an identical limit of 5 ng/ml was proposed for Colorado. The Colorado Legislature backed away from the DUI limit when presented with the scientific evidence.

The lab’s serum/plasma test showed Breathes’ THC count to be at 27. The “active” THC ng/ml count, which is what the proposed Washington DUI test would measure, is about half that total, or around 13.5 ng/ml, according to Dr. Alan Shackelford, who ordered the blood work and evaluated the results.
According to Dr. Shackelford, Breathes was “in no way incapacitated” at the time of the test.
“In short: If this bill passes and I was pulled over by the police, I would be over the limit by 8.5 nanograms,” Breathes wrote. “By that logic, I would be more likely to have mowed down a family in my car on my way to the doctor’s office that day than actually arriving there safely.
“But I didn’t — because I wasn’t impaired,” Breathes wrote.
But New Approach Washington is insisting that marijuana use impair all users at the level of 5 ng/ml, and that it will be OK to criminally penalize anyone who drives over that level.
Holcomb of New Approach Washington characterized other legalization efforts in the state as untenable.
“I’d also add that advocating for proposals that Washington voters will not pass — like I-1149, now co-opted by Don Skakie [Yes End Penalties (YEP)] as I-505 — is not a viable path to legalization,” Holcomb told Toke of the Town Monday afternoon.
“Washington voters will not pass a measure that proposes to make it legal for 18-year-olds to grow and sell as much marijuana as they want to 16- and 17-year-olds, which is what I-1149/I-505 would do,” Holcomb claimed. “See Sec. 6(5) of I-1149/I-505, and the I-505 ballot summary: ‘It would prohibit persons over 18 from delivering m
arijuana to persons under 18 who are at least three years younger.”
“That is completely wrong, as I-1149 would NOT have made it legal to sell to someone 16 or 17; the language specifically changes NOTHING in regards to the minor laws and adults who distribute to them, whatsoever,” Sensible Washington’s King County director Anthony Martinelli told Toke of the Town Monday night.
Meanwhile, Hiatt took issue with the notion that we should “take what we can get now” when it comes to marijuana law reform.
“If this is really the only thing that could pass, then we should wait,” he said. “We should wait until we could get something better.
“This is not the way principled people do reform,” Hiatt said. “It’s not the way to do it. You don’t throw your principles out the window.
“I’ve been doing this my whole career,” Hiatt said, “and I’ll be goddamned if I’m going to stop running my mouth about it now.”