Posts Tagged ‘I-502’

What will the marijuana stores in Washington State really be like? The stores as authorized by Initiative I-502 are scheduled to open in June of 2014. Here is a discussion of some of the unknowns.

1. Will people really pay $12 per gram?

The State Liquor Control Board has indicated that marijuana will be sold at $12 per gram by state licensed stores. Who will pay that? At first the marijuana stores will be a novelty, but then only yuppies and tourists would pay that much. The bulk of marijuana is not consumed by the infrequent casual user. Many heavy users smoke 3 grams per day. They won’t be willing to pay $1000 a month to continue their habit; they will just continue their home gardening or will buy it in bulk on the black market.

2. Will the State prosecute home gardens?

For the State to maintain its monopoly, they will have to prosecute home marijuana gardens just as vigorously as they did pre-I-502. Except now, the State won’t be jailing you to prevent the scourge of drugs, they will prosecute you to protect their monopoly. Will the public accept this? Will jurors accept this when I-502 supposedly made marijuana “legal.”  Will local prosecutors jail backyard marijuana growers just to protect the state run cartel?  Wasn’t part of the motivation behind Initiative 502 to end the incarceration?

3. Will the State allow dispensaries to still exist?

It is not likely that the State will tolerate the marijuana dispensaries once the dispensaries become their main business competitors. Will the medical cannabis doctors cease to exist? Will the collective gardens likely cease to exist?  Will medical cannabis have any meaning when the I-502 stores open up?  Should patients be asked to spend the same for marijuana as recreational users? State legislator Chris Hurst has stated: “These dispensaries are absolutely illegal, criminal operations…What’s it going to take to shut all these down?”

4. Who will give the store’s legal advice?

Up until now the lawyers who have advised marijuana sellers or dispensaries have done so at their peril. The bar association frowns on lawyers assisting with the functioning of an illegal enterprise, and up until now the lawyers who have assisted are a few daring individuals who have assisted more on ideological grounds then business acumen. While it sounds exciting, the work of such a lawyer consisted mainly of reviewing business contracts, leases, assisting in payroll, personnel issues, taxes, copyrighting logos, and reading tea leaves to discern when the next federal bust might occur. Will the legal work now go to more mainstream corporate attorneys that have previously turned their nose up at such clients?

5. Will the stores sell to out-of-state users?

Will the I-502 stores attract tourists? How will Idaho feel about cars full of kids driving back from Pullman and Spokane with marijuana? Will Canadians come to Seattle to buy marijuana. Will the proximity of legal marijuana change the way the neighboring states handle marijuana criminal cases? Should the stores only sell to people with Washington drivers licenses or identification (similar to the way firearms are sold)?  Will Idaho resent Washington not supporting

6. How will the marijuana stores function on the financial side?

There has been much discussion in the news about the fact that banks will not receive proceeds of a marijuana store out of fear of violating federal banking laws. Will this change? Will the stores really need to function on a cash basis?  They can’t accept credit cards, or order items online? What has not been discussed is the effect of IRS section 280e. This code section means that persons in the “drug trade” cannot take business deductions for any business expenses. Think of it like this: If you run a retail store, you might sell $250,000 worth of goods in one year. However, you may just pay taxes on $50 because you have $200,000 worth of expenses from inventory, personnel, rent, supplies, and rent. IRS section 280e says that you cannot take any such deductions for selling marijuana.

7. Will all stores open on the same date?

Many local jurisdictions are imposing moratoriums on marijuana stores in their jurisdiction.  These cities include Vancouver, Richland, Issaquah, Pasco, Kent, and Pullman, Washington.  Other cities, like Seattle, are asking for more stores. The end result is that the first stores to open their doors could be flooded with customers from neighboring jurisdictions that prohibit the sale. After novelty of legalized cannibis wears off, the second waive of entrepreneurs could face a different market place.

8. Who will apply for licenses?

On November 18th, 2013 the State of Washington will begin accepting license applications for marijuana stores. Who will apply for these licenses?  There are many backyard gardeners who have spent their lives hiding from the law and have dreamed about finally legally growing and selling marijuana.  However, I-502 and the implementing regulations of the Liquor Control Board make it clear that entrepreneurs with business experience and large financial back will have the advantage.  And a criminal record will hurt the chances of those applying for licenses.  Will these small-time growers turn to the black market for sales? People with the marijuana grow know-how are in long supply.  It is clear that these people will be working for corporations (if they are to be involved at all).

 9. Not enough marijuana?

The State of Washington plans on authorizing the sale of 40 metric tons of marijuana the first year.  The problem is no one knows if this is enough or too much marijuana. The black market marijuana trade was always a result of supply and demand.  Marijuana became scarce, there were “dry spells” in specific locales, prices arose accordingly, and the market corrected itself when new dealers moved in.  However, the new State regulated marijuana cartel (under I-502) will be operate through central planning rather than market forces.  Think Soviet Russia with its 3 hour lines for bread or potatoes.  When the State finally recognizes it is running short, the stores will have to order more marijuana from State licensed farms, and those crops could take a year to grow.  Just look at how much bureaucracy there is in implementing I-502.  The law pass almost a year ago, and the State hasn’t even printed the applications for the marijuana stores.

What do you think?  Will the stores run smoothly?  Will people be willing to pay $12 per grams.  Will the State be able to consistently meet the supply?  The truth is nobody knows just how the implementation will play out, but it will certainly be interesting to watch.

 

When does Initiative 502 go into effect?

The short answer is December 6th, 2012.  However, different prosecutors across the state are taking different positions.  For example, prosecutors in King County and Pierce County announced last Thursday that they would be dismissing all pending marijuana charges.

But in Spokane County, a lead prosecuting attorney gave the opinion that he felt that Initiative 502 only permitted the possession of marijuana if it was bought in a state-license store.  The Spokane prosecutor explained: “The only thing that is legal is selling marijuana through those stores. That will be regulated by the state. You can’t under this initiative have an ounce of marijuana that doesn’t come from a state-issued provider. You still can’t have black-market marijuana.”  If that is the case, there would be a significant delay until Initiative 502 goes into effect because the state stores will not be set up until 2013. Additionally it is highly unlikely that the federal government would even tolerate the existence of state stores.

The position of Spokane prosecutor seemed to be more of an off-the-cuff remark rather than a declaration of an official office interpretation.  Under legal traditions in the country, if a law is ambiguous, it is to be construed to favor the individual over the government.  In law, this is often called “the rule of lenity” that “penal statutes are construed narrowly.”  Several criminal defense lawyers across the state are currently making the argument that I-502 should be applied retroactively.

As Initiative 502 passes into law tonight, no one in our criminal justice systems will know for sure what it means.  Will the passage of I-502 be the first crack in the Berlin Wall that is nationwide prohibition?  Will the passage spread through to other States in 2013 and 2014?  To what extent will the federal government tolerate the open sale of marijuana?  Will the law be applied evenly throughout the state, or will eastern Washington continue to lag behind in the liberalization of marijuana laws?  Here are my predictions:

1.  The Feds adopt a wait and see approach.

Although the possession or sale of marijuana remains illegal under federal law, the federal government will likely take no immediate action against I-502.  As with our passage of medical marijuana 14 years ago, the federal government will be slow to completely invalidate a state policy decision on a controlled substance.  The federal authorities sat back until 2010 to begin action against the larger medical marijuana dispensaries in Washington, and we certainly won’t see any immediate action from the federal authorities now.

2. Increased marijuana DUI enforcement. 

Marijuana-related DUI charges have traditionally been rare in this country.  The effects of marijuana intoxication are more subtle than with alcohol, and the scientific studies indicate that marijuana does not have a predictable effect on a person’s ability to operate a motor vehicle.  However, I-502 has set a legal limit of 5 nanograms of THC per milliliters of blood.  I predict that the Department of Licensing and the law enforcement of the state will begin to enforce that new provision immediately.  Although I-502 will likely not lead to many new marijuana users, the perception of law enforcement will be that marijuana use will increase ten fold overnight.  Starting today, every law enforcement officer will feel he or she has a new job – standing as a bastion against “stoned” driving.

 3.  Zero tax revenue.

Initiative 502 was sold on the Washington voters as a good source of tax revenue.  While the voter initiative calls for such a regulatory structure, timid state officials will not license marijuana stores out of fear of being viewed as an “accomplice” to a violation of federal law.  If the state isn’t licensing the stores, they will find it difficult to collect any taxes.  My prediction is a net tax revenue for 2013 of zero dollars.  The more likely scenario is that sales of marijuana will continue on a gray market to people who believe they are buying marijuana legally because they voted for Initiative 502.

4.  Prosecutions continue in eastern Washington.

The legalization provisions of I-502 did not go into effect as of 8 p.m. tonight.  Rather, the law takes effect on December 6th.  As pointless as it may seem, hundreds of people will be arrested and cited for marijuana possession between now and then, particularly in rural eastern Washington.  Additionally, even after December 6th, prosecutors in eastern Washington will find ways around Initiative 502.  For example, during a traffic stop, if a person admits to sharing a little marijuana with a friend, or admits to intending to share, they will be charged with felony charges of delivery of a controlled substance, or possession with intent to deliver.  Likewise, people could be charged with possession if they admit to having possessed the marijuana in Washington State prior to December 6th.  This might sound silly if you have never practiced over there, but this is the difference between the Seattle area and the rest of the State, and this uneven and inconsistent enforcement will continue post I-502.

Initiative 502 may decriminalize the possession of small amounts of marijuana, but let’s face it, people don’t buy marijuana just to “possess” it.  The point is to ingest the marijuana.  But if you do use it, don’t go anywhere near a car for the next 4 or 5 days.  Because under Initiative-502, you can’t have over 5 nanograms of THC in your blood if your operating a car.  For those of you unfamiliar with the concept of a nanogram, it is one billionth of a gram!  For regular users or medical cannabis patients, you can never legally drive!  Here are few tips from a criminal defense lawyer on how to survive post-Initiative 502.

1.  Take Opiates Instead.  If you are a medical marijuana patient, go back to using powerful opiate painkillers.  We understand you gave up methadone, morphine or Oxycontin for medical cannabis because it is safer, cheaper, and it doesn’t leave you feeling like a zombie all the time.  But there is no per se legal limit for driving under the influence of Oxycontin.  None! And the state toxicology lab will also have a hard time proving you are impaired because drugs effect everyone in different ways.  (Disclaimer: This law firm is not legally responsible for overdoses or deaths, or robberies of Walgreens caused by this advice.)

2.  Drive absolutely perfectly.  If you have used marijuana in the last 4 days, don’t give the police any reasonable suspicion to pull you over.  Make sure your tail lights aren’t cracked, make sure your have mud flaps on your car even in July, make sure you license plate illumination bulb is functional, and don’t drive 56 mph in a 55 zone.  Don’t drive 54 mph in a 55 zone either, that is suspicious too.   “Whether you stand still or move, drive above, below, or at the speed limit, you will be described by the police as acting suspiciously should they wish to stop or arrest you.”  U.S. v. Broomfield (2005).

3.  Don’t go to eastern Washington.  It is not the marijuana itself that eastern Washington police hate, its the smug view of the west-side electorate and their voter initiatives that will put them out of work.  For the last ten years in eastern Washington, you were often worse off being caught with marijuana and a green card then with just marijuana by itself.  The police hate I-502 in eastern Washington, and they will be determined to fill their jail cells with new 5 nanogram DUI cases.

4.  Avoid the odor of Marijuana.  The police of Washington State have bionic noses.  Even if you smoked marijuana 10 hours ago, the state patrol can still manage to sniff that on a windy day along side the highway. And don’t even think about hanging a tree air freshener on your mirror.  The police consider that probable cause for arrest.

5. Don’t Toke until you are 21.  At one time in our nation’s history, it was socially acceptable to try marijuana when you were young and in college.  But under I-502 it is considered a marijuana DUI to have any level of THC in your system over 0.00. The FDA allows 30 parts per billion of arsenic in drinking water, and 23 parts per billion of lead in eggs for school lunches.  But if you are under 21 it is a DUI to have any THC in your system at all!   If you are under 21, find another drug!  Heroin, cocaine, MDMA, and huffing gas and aerosol containers all have no per se legal limit!

6. Take the fifth.  When asked by a police officer if you have smoked marijuana in the last 24 hours, take the fifth. Invoking this right was once associated with mafia dons and McCarthyism but it will need to come back in style if drivers are to avoid giving the police probable cause to arrest them for Marijuana DUI.

7.  Get used to an Ignition Interlock.  Under Washington DUI laws, if you refuse a blood test you will need to obtain an ignition interlock device on your car, even if you were arrested for driving under the influence of marijuana.

For the straight scoop on whether marijuana effects driving see here and here.  For more tips on surviving in an absurd society see here and here.

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Will Initiative 502 pass?  Yes it will.  The latest polls show that the law is ahead in the polls 53% to 44%.  It is true that California ran a similar ballot measure in 2010 that failed.  However, that measure in California (Proposition 19) was behind in the polls at the time of the election (45% for, 53% against, at the end of October).  The reason why Proposition 19 was defeated in California was because the opposition raised the specter of “stoned drivers” and because the law lacked a regulatory framework to convince the voters that the sales of cannabis would be tightly regulated.  Mothers Against Drunk Drivers ran opposition ads in October, 2010 to proposition 19.  In Washington, the opposition to Initiative 502 has not been well-funded.

Questions remain about the fairness of the law in the treatment of people accused of “Marijuana DUI.”  Many such charges will be based on spurious evidence as the “green tongue” phenomenon. The law also envisions a marijuana sales network regulated like state liquor stores.  It is questionable whether the federal government would ever allow such a regulatory scheme.   In eastern Washington the federal prosecutors essentially closed all the medical marijuana dispensaries.  It is hard to imagine them tolerating state-run marijuana stores.  At this point it seems like a foregone conclusion that the law will pass.  The question that remains is how will Initiative 502 be implemented?  We will have more on this later….

 

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.

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?

When Proposition 19 was rejected by the voters of California in 2010, I figured that would pretty much mean the end of any legalization initiatives in Washington.  However, a group called New Approach Washington was created, and they are now gathering signatures for a legalization initiative for the November ballot in 2012.  The group is challenging the assumption that California is the only testing ground for such proposals.  How can this possibly pass in Washington?  The groups campaign director, attorney Alison Holcomb pretty much explained her thinking recently at Hempfest in Seattle.  (See video below) She explains that there is polling data that supports the idea that such an initiative could win.  “We are in this amazing moment of opportunity and also precariousness – there is no state (other than Washington) in the country that has a 55% …percent majority support for legalizing marijuana.”  The problem that happened in California, Holcomb explains, is that right before the election, voters started to get scared by concerns like “stoned drivers”, and that moderate voters like centrist democrats, independents, and college-educated women, got nervous and abandoned their support.  Holcomb explains:  “With I-502 we spent a lot of time figuring out the most conservative, safe, secure sounding, marijuana legalization initiative that we can draft, and that will get us closest to what our public opinion data tells us people will hang on to and pass.”  Her vision is that once we get such an initiative passed, that voters nationwide will “see that the sky doesn’t fall” and it will snowball to broader legalization and reforms throughout the U.S.   Alison Holcomb explained:

We have to be as disciplined as possible, and pulling together, for example, the sponsers that signed on to it.  Seattle city attorney Pete Holmes, former US Attorney John McKay, Rick Steeves, two medical doctors, two former Washington state bar presidents, a Washington state legislator.  We need all the main stream messengers possible, because I think a legalization initiative  that looks like it is coming from the choir, that looks like it is coming from the usual suspects, has a much harder row to hoe then one that is coming from a former US attorney, for example.

Is it ironic that she explains the need to gather “mainstream messengers” when she is speaking at Hempfest?  I guess a little.  I did note that you can hear the psychedelic rock of the festival playing in the background as she speaks.

I-502 has some detractors.  Some question the proposed law’s provision that drivers (even medical patients) cannot driver a motor vehicle with a THC level over 5 nanograms per milliliter in their blood.  Others question why drivers under 21 would be defined as committing DUI if they have THC in their system in any amount over .000.  One such critic is Edward Agazarm, who started a Facebook page entitled Patients Against I-502.  He sent a press release out last week excoriating the sponsors of I-502.”  See article.  But Alison Holcomb fired back in the comment section of that article accusing Edward Agazarm of being disingenuous in his criticisms of I-502.  Agazarm is a professional signature-gatherer, and president of Citizen Solutions, Inc.   Holcomb explained that Agazarm called her and pitched his company (to collect signatures) after she held a press conference in June.  Holcomb writes: “When I told him we had already contracted with PCI Consultants, Inc., he insulted them and hung up on me. Now, Eddie’s spamming people with emails equating I-502 to rape.”  Agazarm isn’t the only critic.  Steve Elliot, a writer for Tokeofthetown.com also is very critical of the proposed law.

I guess the million-dollar question is whether the initiative will pass.  Can New Approach Washington gather enough moderate voters to off-set the critics?  We will have to see.

One of my disappointments in observing the marijuana reform movement over the last 10 years is how egos and dollar signs seem to damage any real chance of reform.  If I had the energy to collect 100,000 signatures, I would first seek a simple initiative removing the mandatory 24-hour jail time for all marijuana.  I blogged about this here last year. As a practicing criminal defense lawyer, I do have concerns about I-502.  I do worry that a driver under 21 could be convicted for DUI even for trace amounts of marijuana in his or her system.  I also don’t believe that all drivers would necessarily be impaired at .05 nanograms per milliliter, as I addressed here.   I do believe that the law would likely contribute to patient harassment, and an increase in unwarranted marijuana DUI charges.  The “probable cause” that an officer would have to establish an arrest for marijuana DUI is often based on subjective and spurious observations, such as the “green tongue” phenomenon.  I am already seeing an increase in marijuana DUI charges in my practice.  The problem with enforcement with these new laws isn’t going to be in King County; the problem will be greatest in the hick towns of eastern Washington (where I live and practice law).  In these towns the judges are often hostile to even medical marijuana, and the jury pools are conservative.  The prosecutors are less susceptible to public pressure and bad publicity, and  the defense lawyers often lack the specialized training and resources to defend such charges.

What do you think?  Will you be signing the petition for I-502?  Is it worth the restrictions on driving to get a marijuana reform law passed?  Does I-502 ask for too much of a sacrifice from medical cannabis patients?  Leave your thoughts in the comment section below.