Initiative 502: What to Expect the Next Day in Washington for Marijuana Cases

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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19 Responses to “Initiative 502: What to Expect the Next Day in Washington for Marijuana Cases”

  • Vera:

    I really have mixed feeling about this law. I don’t know which way I will vote on I 502 Tuesday. I guess I don’t have any idea whatsoever how much weed I will have to smoke to have 5 nanograms. Is there a calculator similar to .08 for alcohol. Also, what makes you so sure this will pass? All the supporters might end up being to high to bother to show up and vote?

  • DEE:

    Initiative 502 is not perfect. It is a baby step. The federal
    Government does not want competing interest for a divided issue and the
    money that it generates for less than good, black market interest. Vote your conscious.

  • asher:

    ” Mr. Graham predicts that the federal authorities would never permit such activity even on the state level.”
    What do you mean by that?..Has any one read the bill of rights in this country?.. the 10th amenment clearly dose not give the federal government say so over the states or the Peoples rights,it’s not delagated to the federal government..they try the nazi crap but they are clearly in the wrong.
    ever scince Bush and before and now Obama they think they can write any darn law they want or corrupt any rights of WE THE PEOPLE!!
    Im sideing with WE THE PEOPLE and like the people that live around me say
    “They can have our guns when the take them from our cold dead fingers!
    if the people say no to 502 cool if the People say yes to 502 cool it’s up to the People..not the darn corrupt federal corrupt lie cheat and steal government..I will back my fellow Americans in thier and our choice what ever we vote to do.I dont know how Im going to vote on 502,Im still thinking about it..but if the people do vote 502 in Im backing the People like it says in the Bill of Rights..My life is not for sale..I dont know if 502 is good or bad,if it dose get voted in and it dose not work we can vote it back out.Ya know what I just made up my mind after typing this out..Im going to vote yes,just to slap the federal government back a notch,and not for any other reason..

  • I like your way of thinking Asher. I will admire the first brave soul who opens the first marijuana store in Washington State after I-502 passes.

    • Lexy:

      As a medical patient, I am so confused by this law. What does it mean for me? I grow my own medicine and sell my extras to a state licensed dispensary. What is the economic prediction of I502 for those of us who help spread healthy, organic medicine to patients? Lower prices, will we now need a license to sell to the dispensary?

      • Under Initiative 502, medical patients can still grow their own 60 day supply under State law. The drafters of 502 seemed to go out of their way to preserve most of the rights of patients (except for the driving issue). Pete Holmes, in his public comments, touts the new law as allowing a marketplace for healthy, organic marijuana, but I still see this as being underground due to federal scrutiny and intimidation.

  • Asher:

    B>I>N>G>O The C.I.A and drug gangs really hate this. the hard drug use rate should start going down soon after this goes into law…we win. DO NOT SMOKE AND DRIVE..you can drive the next day after smoking and pass the blood test. it only stays active in the blood for a while after it stops working,Just be safe and don’t drive the same day you smoke.do the research..the pee test picks up on by-products stored in the fat cells
    the driving test is a blood test looking for the actual THC

  • Alison:

    Hi Mr. Graham,

    I have tried to read through this in my voters pamphlet and it is long and drawn out. Can you put into laymen’s terms? Like “I-502 For Dummies”? What does this mean for those of us who already purchase from a non-licensed retailer/grower? Does it mean we can use freely, in public, as one would enjoy a cigarette? You can’t drink in public, so I would assume there would be similar rules to when/where you can use. If I’m at the park, can I roll a joint from my stash and not be incarcerated? Even if a cop sees my bag? He wouldn’t take it, and I wouldn’t be cited? I can’t seem to find anywhere online that puts the whole thing into more of an essay rather than stereo instructions :) Thanks!

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  • Emily:

    Mr. Graham,

    Hello My name is Emily. I have a question as I live in Eastern Washington, in Spokane county. There is, of course, a lot of conflict on this Initiative.
    Namely our city’s Prosecuting Attorney and County Sheriff are telling the media, that this Initiative only pertains to “State Licensed/Regulated” marijuana. That “black-market” marijuana is still illegal. this is leading quite a few of us, Spokanities questioning our rights and liberties under I-502.
    I am highly concerned that we will still be prosecuted, regardless of new law passed, because they are extrapolating, only what they can to still consider us criminals. What are our rights pertaining ot “black-market” marijuana when NO state agencies are available to purchase form? And what can you do to protect ourselves from small minded rednecks (sorry couldn’t resist)??

    • I don’t think that that will be the official position of the prosecutor’s office in Spokane. I am thinking the prosecutor was just speaking off the cuff. I just got off the phone with an elected prosecuting attorney and he told me that all the prosecutors are thinking that all marijuana charges should just be dismissed. I think it really a strained reading to say that Initiative 502 reads that the marijuana has to come from a state-licensed store. The state-license stores are never going to happen because the federal government will threaten the State officials.

      • Emily, the Spokane prosecutors office DID reverse their position on this. The will NOT be prosecuting any one for marijuana irrespective of where marijuana was obtained. See http://www.spokesman.com/stories/2012/nov/14/spokane-county-reverses-pot-now-legal/

        • That above article makes it sound like there is only one marijuana possession charge pending in Spokane County. That can’t be right. Often times the prosecutors will continue the cases on the condition that the defendant will stay out of trouble for one year, and then dismiss it. I am not sure Jack Driscoll was including those pending cases.

          • Emily:

            Yes, I agree. They do “deferrals” and probation dropping the charges to not be in a felony class. Let us not also forget the charges that have to be dropped because the evidence “disappears” from the evidence room. Ha! I have Several friends that got arrested for possession of marijuana. Their pot and pipes were confiscated but by the time trial cam around the pot and pipe were “missing”. Most likely because johnny law took it home! Again I really appreciate your time and the effort you put into this site!

  • Emily:

    oOr is there absolutely no recourse we have? It seems pedantic. After more than half the state voted to “legalize” recreational marijuana, only to have law enforcement opposed the law We The People have approved.

  • Loretta Pirozzi:

    Marijuana was decriminalized in Seattle years ago. Police here don’t cite us for possession or smoking in public. They could if they chose to, but unless you’re being a complete jerk, they don’t.

    • I think that was why a lot of people in Seattle had mixed feelings about 502. The law contained the new 5 nanogram limit, but didn’t add anything new. The city made it the “lowest priority for enforcement” years ago, and then Pete Holmes came in as city attorney on 1/1/10 and made it “no” priority and used his discretion to dismiss all the pending marijuana charges.

  • Emily:

    Thank you for you time and response! It nice to know we do have legal recourse and protection from prosecution. It is sad that the state won’t get the MUCH needed funds from be unwilling to stand up to the Feds.

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Photo of Steve Graham Steve Graham is a criminal defense lawyer, and he splits his time between Spokane and Seattle, Washington. Visit his website by clicking: www.grahamdefense.com
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