With the latest polls showing that marijuana decriminalization Initiative-502 is highly likely to pass, many people are asking about the practical effect of  I-502 in the short term.  As a criminal defense lawyer who handles a lot of marijuana cases, here is my opinion on what to expect, and what not to expect in the short term.

Voters are expected to pass a marijuana initiative on 11/6/12 decriminalizing the possession of marijuana under 40 grams.

1.  Pending Cases

I-502 does not mean that all pending marijuana possession charges will be dismissed.  By its terms, I-502 doesn’t apply retroactively.  However, prosecutors will be left wondering whether there is any point in continuing prosecutions of simple possessions of marijuana.  Jurors are already ambivilent about having to come to court for small, seemingly-harmess marijuana cases.  If Initiative-502 passes, jurors will really be confused about why the government is even bothering to prosecute.  However, you can expect many police officers to continue to cite people for marijuana possession right up to December 6th when the law goes into effect.

2.  Traffic Stops

The passage of I-502 will not mean the end of harassment for marijuana users.  Rather, the battleground for the war on drugs will merely shift.  If you are pulled over for traffic infractions (such as speeding or broken tail light), you can expect an increased interest by the police in determining whether or not you are “under the influence” of marijuana.  Initiative 502 places a legal limit of 5 nanograms per milliliter for THC in a person’s blood.  When I first started working as a lawyer in criminal courts in 1994, “marijuana DUI” were almost unheard of.  However, I have defended more and more such cases in the last few years, and the WSP has requested 2 million dollars in extra funding just to enforce I-502’s new 5 nanogram limit.  Many of the arrests for Marijuana DUI will be based on such spurious evidence as the “green tongue” phenomenon.

3.  Medical Marijuana Cards

The passage of I-502 will likely be of some help to medical marijuana patients involved in battles over the legitimacy of their medical card.   Many people charged with possession of marijuana have out-of-state medical cards that aren’t being recognized in Washington.  Likewise many medical marijuana patients find themselves in court because their medical card was expired.  I-502 is likely to help patients fight their legal battles.  This is particularly true in more conservative jurisdictions that have been construing medical marijuana laws very narrowly.

4.   Selling Marijuana / Buying Marijuana

Pete Holmes, the city attorney for Seattle has promised that the passage of Initiative 502 will mean that “adults will be able to buy an ounce of marijuana at a retail store confident that it was produced in Washington free of herbicides pesticides, mold or other contaminants.  502 will thus be a boon to Washington agriculture.”  This will not happen in the short term, and will never occur until the federal government liberalizes its policies toward marijuana.  Despite the limited decriminalization in Washington, the possession or selling marijuana is still illegal under federal law. Anyone attempting to open up a “state-licensed” store will face overwhelming legal obstacles, and will face federal prosecution.  If you have a current pending charge for the delivery of marijuana, I-502 will likely not be of much assistance to you.

5.   Marijuana Possession at the U.S. Border

When travelers are searched at the border entering from Canada, the possession of marijuana can lead to charges in state court, and this can be an absolute nightmare for travelers.  Although it it is a felony under federal law to import even small quantities of marijuana, these charges are almost always referred to State court for prosecution. With the passage of Initiative 502, the State courts will have difficulty prosecuting such cases. It is unlikely that the federal prosecutors will bother with such small amounts. People caught with small amounts of marijuana at the border will likely face a small civil penalty and will be served with papers barring the person from ever re-entering the U.S.

What do you think the immediate practical effect of Initiative – 502 will be?  If you are a marijuana user, does this 5 nanogram limit concern you?  How do you think prosecutors will react to this new law?

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