Marijuana advocates in Washington state have had a long, hard battle to get as far as they’ve come in the 13 years since voters legalized cannabis for medicinal uses back in 1998. But I-502, a new tax-and-regulate initiative — which appears to have enough signatures to be on the November 2012 ballot — is apparently not a banner under which all legalization proponents are willing to unite.
So while a bemused public wonders exactly what to think, the legalization movement, yet again, appears to be dashing itself against the perilously rocky shores of political reality. A community divided against itself — particularly one that is battling such huge public perception problems, which are almost entirely left-overs from 20th Century myths and superstitions about cannabis — remains unable to flex its full potential at the ballot box.
It’s a really unfortunate situation, particularly because if the schism should lead to I-502’s defeat, it will be (misleadingly, of course) spun by mainstream media as “yet another rejection of marijuana legalization by the voters.”
And even should the initiative pass, it will bring with it a host of its own new problems, possibly including a potential flood of spurious DUI charges against medical marijuana patients who aren’t even impaired.
I-502 “does not legalize marijuana,” according to activist attorney Douglas Hiatt
of Sensible Washington, who co-wrote I-1149, a more far-reaching legalization plan which, for the past two years, failed to gather enough signatures to make the ballot.
According to Hiatt, 502 would allow a narrow exception under the law for up to an ounce of marijuana, and then creates “a ridiculous regulatory scheme” and overtaxes it.
Those caught with more than 1.5 ounces of cannabis could still be charged with a felony. All home growing (for everyone except authorized medical marijuana patients) would still be illegal, and subject adults to felony charges, as well.
|Alison Holcomb, New Approach Washington: “For now, let’s err on the side of caution”
I-502’s regulatory system is comparable to the way the state treats alcohol. A state board would oversee licensing of marijuana growers, processors and retailers, and a 25 percent excise tax would be imposed at each step along the way to consumers.
The marijuana stores would be privately owned and operated; they’d be the only places to legally get marijuana, unless you were a patient, since you wouldn’t be allowed to grow your own. So if the state-licensed pot store didn’t have the strain or the quality you were looking for, your only alternative would be to break the law by growing your own or going to the black market.
Who or what is to blame for this situation? And what can be done about it?
Well, to answer the second question first, not a lot at this point. The language of I-502 is set in stone at this point, since its language has already been finalized. What this means is that, if it passes, 502 certainly won’t be the end of marijuana prohibition in Washington state, but at the same time it will be the beginning of legalization — only the barest beginning, but a beginning nonetheless.
When New Approach Washington
, the group backing I-502, was working on the language in the initiative, the state chapter of the American Civil Liberties Union (ACLU-WA) and other backers were rightly concerned with the viability of their proposed legislation. In short, they wanted to make it as likely as possible to pass muster with Mr. and Mrs. Suburbia.
Towards that end, NAW made what some see as some major tactical errors, as a result of their polling-driven approach.
Since their polls told them the public is most worried about increased automobile accidents if marijuana were legalized, a provision to institute a per-se cutoff point for marijuana DUI, according to blood level, was included in I-502 — even though there are no compelling scientific studies supporting either 5 ng/ml nor any other THC blood level as a reliable measure of impairment.
|Denver Westword pot critic William Breathes got his blood drawn to test THC levels in his blood. He wasn’t high at the time. But he still tested three times over the proposed legal limit for Colorado
Drivers would automatically be guilty of DUI-marijuana if the amount of THC, a primary psychoactive compound in cannabis, is above 5 ng/ml in the blood. Currently, drivers must show impairment to be charged with driving under the influence of cannabis; 502 would make an arbitrary reading on a blood test the standard, rather than impairment itself.
But, you see, there’s a big problem with tests which measure THC levels — active or inactive — in the blood. That being, those tests measure THC levels just fine, but they don’t do shit when it comes to measuring actual impairment — which is why those tests are a piss-poor way to enforce a law against driving while impaired on cannabis.
“Not a single medical marijuana patient that I know of would be able to drive legally,” according to Hiatt, who said the 5 ng/ml cutoff would be the toughest in the United Stat
The 5-nanogram standard has no basis in scientific research, according to Hiatt, who said it is a misguided attempt to produce a law that the public can understand and compare to the 0.08 blood-alcohol standard for DUI.
But it is “completely inappropriate to compare” marijuana to alcohol when it comes to driving impairment, because of different tolerances and the way THC is metabolized differently in each individual who uses it, according to Hiatt — especially experienced marijuana users, who have, in scientific studies, shown no change in task performance,
at much higher blood levels of THC.
Alison Holcomb, an attorney with ACLU-WA who is campaign director of New Approach Washington and co-author of I-502, acknowledges that “the science around the THC impact on driving is not as robust as alcohol,” but claims that the data available suggest the 5-nanogram limit is “a workable guideline.”
“That’s why we have earmarked funds to study that exact issue,” Holcomb said. “For now, let’s err on the side of caution.”
|Kris Hermes, Americans for Safe Access: “Studies have shown that marijuana may only have a minimal effect on driving performance”
Trouble is, subjecting hundreds of even thousands of seriously ill Washington medical marijuana patients to harassment and repeated arrest doesn’t really look much like “erring on the side of caution,” from where I stand.
“Studies have shown that marijuana may only have a minimal effect on driving performance
,” ASA spokesman Kris Hermes said. Some studies have shown the levels well in excess of 5 ng/ml can remain the blood for several hours, although impairment may no longer be an issue — for example, many medical marijuana patients wake up in the morning over the 5-nanogram limit, but are functionally unimpaired.
Holcomb claims law enforcement would still be required to have “probable cause” to arrest and “reasonable grounds” to believe a driver is impaired by drugs before administering a blood test. “The reality is we have had a medical marijuana law since 1998, and you just don’t see a lot of people getting pulled over and taken in for blood tests,” she said. (Who wants to bet that could change, right quickly, if her law is passed?)
But Hiatt believes that if you give law enforcement — many of whom have a deep dislike for both marijuana and those who choose to use it — a shiny new tool like a hard-and-fast DUI law, they aren’t going to be able to resist using it, early and often.
“I’ve been a criminal defense attorney for 20 years,” Hiatt said. “Don’t talk to me about probable cause to pull somebody over. (Police) can pull anybody over time, and everybody knows it.”
When the Colorado Legislature this year considered an identical cutoff point for marijuana DUI — 5 ng/ml — activists in that state, and eventually even the bill sponsor herself, Rep. Claire Levy, said that number may be too strict.
Denver Westword pot critic William Breathes
helped ignite the debate in Colorado when he publicly agreed to take a blood THC level test and not only flunked, but tested nearly three times over the proposed limit
of 5 ng/ml of blood — while sober
(which was confirmed by a physician in attendance).
After State Rep. Roger Goodman
proposed a similar bill in the Washington Legislature — except with a higher, 8 ng/ml cutoff — he incurred the wrath of many marijuana activists. But after hearing from a lot of constituents and checking out the available scientific information, Goodman realized there are no definitive answers
when it comes to defining 8 ng/ml, 5 ng/ml or any other particular cutoff level for blood THC as necessarily indicative of impairment.
“When I learned there was no good science on the subject, I actually withdrew that proposal, and I helped Colorado defeat that same marijuana DUI proposal,” Goodman told me last June.
Another sticking point many activists have with I-502 is that — once again, driven by polling, this time indicating public concern with youthful pot-smokers — the initiative would set a zero tolerance standard for everyone under 21 years old.
“So if you are a minority kid in the city, it’s open season,” Hiatt said.
Train Keeps Rolling Down The Track
Meanwhile, the well-funded ($250,000 from Progressive Insurance CEO Peter Lewis) New Approach Washington has plenty of high-profile supporters (including former U.S. Attorney John McKay) and plenty of signatures (312,000 names, with 241,153 required to qualify for the ballot).
In all likelihood, Washington voters will be looking at a “legalization measure,” I-502, on their ballots next November.