The Passing of Initiative 502 – A Defense Lawyer’s Perspective

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?Initiative 502 Pass  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.

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8 Responses to “The Passing of Initiative 502 – A Defense Lawyer’s Perspective”

  • Richard Cheimison:

    Well, there’s one upside: no revenue. The less money the government has to lie and kidnap people, the better.

  • How much is 5 nanograms of THC per milliliters of blood exactly?

  • Dlm:

    I believe the current UA for failure is also 5 nanograms/milliliters. It is my experience that If you take 4 puffs of 20+% thc marajuana, enough to feel it. It will take you at least 2 weeks to pass the above requirement. I have a Perscription for this and I have tested it repeatedly, to find out how long it takes to clear. This part of the law is going to cause it to be recended, or at least modified. Unfortunately the part of marajuana that they test is not the part that makes you goofy. I am certainly not under the influence of this after 2 weeks of not partaking.

    • Dlm:

      OOPS, current UA cutoff is 50 nanograms/ml, 10 times greater than the above mentioned 5ng/ml. Need to research further…

      • Emily:

        They are also only testing for the Psychoactive component in THC not just THC levels them selves. The NON-psychoactive component(Carboxy-THC)cut off level is 50 nano grams. I’ve done a little research into the 5 nano gram “active” level issues and the most recent research test there were run was back in 2009. I’ve seen excerpts from that report saying a woman smoked 4 “blunts” and was high when tested and she was the only one who tested over 5ng for the psychoactive THC, and all the other were deemed “heavy” long-term smokers of similar amounts. Now I personally don’t think I have EVER sat down and smoked that much. There are also uncontrolled aspects that need to be consider ie. weight or exercise levels. THC active AND non-active store in fatty cells so there are a lot of different aspects that are inconclusive to say the least. I think as long as you’re not “blazed out of your mind” you are probably okay. The active components of THC usually wears off in about 2-5 hours after consumption. My suggestion would be to stay home watch some movies or play games and make sure you have all your munchies and drinks on hand. Take the same approach with pot as you would with alcohol. Most people I know wouldn’t drink 1/2 a bottle of vodka then get behind the wheel. Ultimately there needs to be more research into the active nano grams levels and driving impairment before a limit should be set, who knows maybe NORML will use some of the left over campaign funds to get more legitimate research done. But, I would use caution in the mean time. As Mr Graham has stated especially in Eastern Washington.

  • Thanks for the information, Mr. Graham.

    We placed your Washington State image on our website, http://www.peacelovecannabis.com, along with your link.

    Take care.

  • Thats cool PeaceLoveCannabis, glad you like it. Thanks for dropping by.

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Photo of Steve Graham Steve Graham is a criminal defense lawyer who works in eastern Washington, including Spokane, Grant, Ferry, Stevens, Lincoln, and Okanogan, and Whitman counties. Visit his website by clicking: www.grahamdefense.com
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