Washington medical marijuana patients have a big decision coming next year. T
hat decision comes in the form of New Approach Washington (NAW) – a legalization initiative that has prominent backers, plentiful funding, and an excellent shot at the ballot.
“So what’s to decide,” you may be thinking. “I favor legalization. Patients will never be safe in their homes until cannabis is legal for everyone. It seems a pretty obvious ‘Yes’ vote to me”.
Trouble is, it’s a little more complicated than that. As is usual in life we’re being asked to give up some things to get other things, and some of the things we’re being asked to give up shouldn’t ever have been put on the table in the first place.
Driven heavily by polling and focus groups, NAW’s language is the way it is because its backers – including the Washington state chapter of the American Civil Liberties Union (ACLU) – don’t want their initiative to fail. What they’ve done is include provisions designed to make “marijuana legalization” more palatable to mainstream voters. They want to make the specter of legal pot non-threatening enough so that soccer moms and suburban dads won’t vote a kneejerk “no” on it.
That’s a valid enough idea on the face of it. But they’ve unwisely included a Driving Under the Influence (DUI) provision that is not at all based on science.
NAW’s proposed blood limit of five nanograms per milliliter of active tetrahydrocannabinol (5 ng/ml THC) is unrealistic, and worse than useless – it would effectively criminalize driving by most patients, even when they’re completely unimpaired by cannabis.
If NAW passes, 5 ng/ml of active THC will be defacto DUI. But more than a year before Washington’s voters will decide the issue – if it qualifies for the ballot, as is likely – there are already horror stories.
For instance, there’s the story of a Skagit County grower who shall remain nameless. She was stopped for a taillight being out, after a day spent trimming her crop.
Naturally, she reeked of fresh cannabis, so the cop accused her of driving under the influence. A Drug Recognition Expert who was called to the scene later told her lawyer that she had not been impaired, and he would not have taken her in for a blood draw.
But the first officer on the scene insisted on a test. She tested at 18.5 ng/ml active THC, about 1.5 to 2 hours after the initial traffic stop, due to processing at the scene. She had to pay a lawyer $5,000 so that she could take a plea bargain – admitting guilt, which she didn’t want to do – because she said her lawyer had threatened to drop her case if she took it to trial.
Her 18.5 active THC reading was just the background level from being a patient. The only reason she reeked of marijuana was that she’d been trimming her flowers. Her inactive readings were above 70 ng/ml, which incidentally discredits the popular truism that active THC is fully half of inactive levels.
If our unnamed Skagit County grower had taken her case to trial, she would at least have stood a chance of clearing her name. She was not, in fact, impaired; she just smelled like fresh marijuana. But if NAW passes, every single time any patient or recreational user gets pulled over and the cop decides, for any reason, that he or she suspects they are under the influence – or maybe they just decide to hassle you – any reading 5 ng/ml or over will get you a criminal record, a hefty fine, and possibly jail time after repeated infractions.
That’s a high price to pay for a decrim measure that only covers up to an ounce. Think about it. Almost every time, the fine would have been less for possession of the ounce of pot before NAW than it will be for driving if NAW passes.
Even without considering the other major drawbacks of NAW – chiefly among them, the zero tolerance for drivers under 21 and the prohibition on home growing.
Zero tolerance under 21 means that minor drivers caught with ANY amount of THC in their bloodstream will be charged with DUI. If a teen is sitting across the room from someone who smokes a joint, they could conceivably catch a DUI charge.
If that kind of legislation is to protect the youth, who’s going to protect them from their protectors?
The prohibition on home growing, while it wouldn’t affect the ability of medicinal cannabis users to grow 15 plants, is very unfortunate in that it would force all recreational users to buy from state-licensed stores which may or may not have marijuana of acceptable quality.
Sure, it pays to be a political realist and to be willing to horse-trade when it comes to legislation. But when I see these glaring flaws in NAW, part of being a political realist is knowing a bad trade when you see one.
-Steve Elliott – Founding Editor, TokeoftheTown.com and author of Seattle Weekly’s Toke Signals column.
Thank you Steve!
I thought that the THC level test for impairment was already proven to be nearly impossible for any patient to pass eve if they hadn’t used any Cannabis in a week or so? that effectively makes all MMJ patinets unable to legally drive even though they are not impaired in any way. This clause needs to be removed or the limit raised to a more acceptable level or a different way to test altogether!
That single clause would cause me to vote no. Just like CA’s Prop limiting the garden space per residence and not per legal adult. Automatic no vote, A big part of why CA’s prop 19 failed.
Can a lawyer threaten to drop a case if you take it to trial – and get away with it? That sounds completely unethical. What an ass of a lawyer, if true. Sheesh!
If only there were a way to get the state lawmakers to renegotiate these unnecessary & egregious clauses of I-502. But it seems that would require a whole lot more political will than the current spineless bunch tiptoeing about so as not to offend their “pat” voters.
I’m with you 100% on this. Good job, Steve!
I-502 is fatally flawed. I believe the flaws are driven by NAW’s desire to be “the first to legalize” regardless of the social cost of their plan. I can think of no other explanation for putting forth a plan that is so clearly doomed to fail. The NAW plan will not end cannabis prohibition and the unregulated black market that accompanies it. Nor will it protect patients, and, like our legislature’s previous attempt, it will wilt instantly in the face of the aggressive federal opposition that all legalization attempts must currently confront.
Regarding lawyers who threaten to withdraw: As my father once explained to me, if your client wants to drive off a cliff, you have to try to stop them. If you can’t stop them, it’s best not to drive over the cliff with them. Trial is often clearly not in a defendant’s best interest where the prosecutor intends to add more serious charges if you go to trial. A case can go from no jail time to 5 years in prison with a single wrong decision about trial. I’m not familiar with the particular case, so I can’t comment as to whether or not this was what was happening, but I have told more than one client that if they want a trial, they’ll have to find someone else to help them commit legal suicide.
I believe it is part of a lawyer’s absolute duty to try to keep their clients from making really bad choices regarding their defense.
That goes for voting too. I-502 is a really bad choice, and that’s tragic because NAW has the money and the backing to do it right and accomplish a goal we can all work towards and be proud of. Evidently they’d rather drive us off a cliff.
Jeff Steinborn
You are so right, Jeff, about them wanting to be “first to legalize” without realizing the social costs involved. I so much wish they would remove the whole nanogram limits and the age limit. As Jack Herer once told me when we were writing I-692 which became our law in WA state, “why would you add something to an initiative that makes it worse for cannabis consumers!” NAW clearly makes it worse for all cannabis users, and if this is TRULY a legalization initiative, it should not have any limits that would hurt cannibis users, period. The only way I would vote for this is if those two things are removed! Thank-you, Jeff, for your impressions, as a lawyer, and thank-you, Steve, for being brave enough to put this out!
Repeal of marijuana prohibition may be desirable, but marijuana is first a medicine, and we need not, in the name of State supplied party favors for recreational users, re-create injustices for the sick and dying by recriminalizing medical merijuana patients.
It’s the automatic “per se” conviction that gives prosecutors and police hard-ons for this law. It will be a Law Enforcement orgy. I do see roadside blood draws as the search and seizure problem for the next decade.
i agree with jeffrey, i dont see how it’s going to end the black market at all when people like to buy in bulk because it’s cheaper yet anyone with more than an ounce is still a criminal. and the feds wont let it stand at all so it wont be sold in stores anyone even if just for an ounce.
Thank you for stating the important facts that voters need to know. This bill seems like it was written ten years ago. Let’s not hand our opposition these concessions on a silver platter. We all know there is no similarity at all between the impairment potential of alcohol and cannabis. NAW is an abomination created by well meaning people.
Delta Niner,
I agree with you about this bogus initiative. But, I can’t agree these are well neaning people. I think they are SHILLS for Law Enforcement. I am calling the NARCS OUT!
I was recently thinking about the idea of legalized pot and how it would effect the recreational user. Quality of the product was the first question. Next how will government regulation effect how it is grown and how are the farmers treated-represented. Will ‘the good stuff’ stay underground? I remember stories about ‘revenuers’ chasing people around the woods in the South, is this the case in a updated version? What kind of shwag is going to be sold otc? Is my Grandma going to jail for driving to the store for Ice Cream? What are the trade-offs?