Blue Byline

A cop's perspective of the news and South Sound matters

Current marijuana statute lacks clarity, adds danger

Post by Brian O'Neill on Jan. 8, 2012 at 12:52 pm with 23 Comments »
January 8, 2012 2:34 pm

The woman was a mess. Because she was shaking and crying so hard, she was barely coherent enough to answer questions about the events of the last hour. And it had been a pretty nasty one.

As the details finally emerged, I learned that four armed men had entered her residence and threatened harm to the woman and her sleeping children. They took cash, property and, she added almost as an afterthought, her marijuana. Specifically, they had taken her medicinal marijuana grow operation, about fifteen plants in all. It soon became plain that the home invasion had occurred because the woman, a medical marijuana permit holder, had sold some pot to a friend of one of the robbers, and people had talked. Fortunately, the robbers did not harm the woman or her children, but such is not always the case during drug rips.

Marijuana grow operation/ AP Photo

For anyone who keeps up on the news, it would be impossible not to recognize the danger involved in operating even a small scale marijuana grow. The plants bring respectable street profit, and there are no shortage of armed criminals ready to invade a home for such a lucrative target. The fact that many of these residences may now be growing the marijuana legally, under the auspices of a medical marijuana permit, matters little to armed and desperate individuals.

Therefore, it seems logical to conclude that many of these home invasion robberies may be the unintended result of the legislature’s failure to frame a workable marijuana statute.

Marijuana legalization is obviously a contentious issue. Advocates proclaim pot’s healthful properties and denounce what they view as our society’s fear-based prohibition against a drug that, by their estimation, is on par with alcohol. On the other end of the issue, conservatives view any loosening of restrictions as both a win for dope dealers and a degradation of our social values. When you throw in the federal government’s negative position, it’s no wonder our legislature is having such a tough time.

To see the problem further exemplied, one has only to peruse a single page of Saturday’s Trib. Page A3 contained two seemingly unrelated articles that in fact were intertwined because of Washington’s incomplete and faulty marijuana legislation.  The first was a brief report on a South Hill homicide, described in an earlier story as a possible home invasion involving a marijuana grow operation. The second was a lengthier piece on I-502, an initiative that seeks to completely decriminalize marijuana.

Though I have yet to read the initiative, I-502 would reportedly, “create a system of state licensed growers, processors and stores…” That model may be a better solution than our current statute, but only if it mandates that any growing, processing and selling be done through legitimate businesses in commercial storefronts. Anything less than that stipulation would encourage the current standard, the sketchy garage business enterpreneur. This phenomenon is the apparent cause of the regional increase in home invasion robberies.

The I-502 article also highlighted the unexpected opposition to this initiative: medical marijuana patients. At least a few of these folks became concerned about the “overly strict blood-test limit for driving under the influence under I-502.” In response, they are suggesting a counter idea entitled the “Safe Cannabis Act.” Both of these proposals merit a thorough read, but it definitely points out the splintered shape of the movement to legalize pot. It also begs the question why a so-called patients’ group felt the need to tweak a signed initiative based on a concern about getting busted for DUI (though Cheech and Chong would give it a thumbs up).

However this saga plays out, it’s too late to put the marijuana genie back in the bottle. The violent consequences of ineffectual legislation have become plain, and there is a vital need to fix the problem. Even the status quo of the last few decades of pot “prohibition” might be a better scenario, if only from a public safety standpoint. Either way, taking a half step towards legalizing marijuana could be described as ineffectual at best, and dangerous at worst.

In the case of legalizing marijuana, it will eventually be all or nothing.

Leave a comment Comments → 23
  1. wyecoyote says:

    Got no problem with legalizing it. No I don’t use I just don’t care what someone else does. It could also take money away from gangs/cartels and give police one less thing to worry about.

  2. rivitman says:

    The civil war settled the issue of states rights, forever.

    Action to legalize on the part of individual states is therefore moot.

    The counter initiative by medical users fretting over allowable blood THC limits for operating a vehicle is silly also. You shouldn’t drive when using ANY prescription narcotic.

    Distilleries, breweries, and wineries can be made secure. A pot farm? I don’t think so. Pot is vastly easier to transport, conceal, and package. Will the tribes sell untaxed dope? Why not? Will there be untaxed bootleg pot? Oh yes.

    Who sets the standard for strength, or will we have what you have in the so called “medical” pot dispensaries, selling different sorts of weed with various attractive brand names? What happens to drug paraphernalia laws? Advertising?

    But the main thing holding back legalization is the perception, largely true in my experience, that pot smokers tend to have a scofflaw mindset, and disrespect for the law in general. If you are upstanding otherwise, and smoke in your own home, my apologies, but that’s my personal experience.

    An UN-intended consequence will be employers instituting drug testing en mass, leading to a lot of unemployed pot smokers. Their perception is that pot use makes you a problem, and unreliable, otherwise none would do it now.

    The Governing body could require a license to buy dope, and that database can be made public. Want your name on THAT list? A list that employers, insurance companies and credit bureaus could view?

    To be sure, the dope culture has made great strides recently. But not a lot of thought has been given to potential legalization, and the fallout thereof.

    If you want to get high in the privacy of you own home, fine.

    But I don’t want you working for me, or me for you, or have you driving. I don’t want TV ads, billboards, or stylish names applied to pot. I want untaxed grows and bootleggers jailed. I want harsher punishment for DUI’s of ALL sorts.

    I don’t want to smell it wafting over the back fence.

    And if you supply dope to the under-aged, I want you locked up for a long time, served nutraloaf, and have you bankrupted in fines.

    So to everyone on every side of the issue, you had best think it over carefully.

  3. notSpicoli says:

    Rivitman. Though marijuana is not a narcotic, nor is it available as a prescription, your valid questions and concerns are addressed in I-502, (e.g., advertising, etc).

    I-502 is not a pro-marijuana measure. It seeks to tax and regulate the huge and dangerous underground, tax-free marijuana market.

    I-502 is not a “pro-marijuana bill.” It is a anti-prohibition measure. It is not being sponsored by the “marijuana culture!”

    The 10 sponsors of I-502 include a current court officer (Seattle Prosecutor Peter Holmes), a law professor and former federal prosecutor (John McKay), an ACLU lawyer specializing in drug policy, and the past 2 presidents of the Washington Bar Association. The other 5 sponsors (including 2 physicians and a chemical dependency expert, and travel guru Rick Steves, provide compelling reasons from their professional vantage for leading this movement to reform the marijuana laws in our state.

    I would encourage you get check out the New Approach Washington website for more information. Particularity helpful are the FAQ’s and “Factsheets.”

    I-502 will appear on the ballot in November.

    By the way, yesterday’s Herald.net contained an an article, A Practical Approach to Marijuana Control by sponsors Rick Steves, John McKay, and addiction specialist, Dr. Roger Roffman.

  4. notSpicoli says:

    “…the splintered shape of the movement to legalize pot. It also begs the question why a so-called patients’ group felt the need to tweak a signed initiative based on a concern about getting busted for DUI…”

    My comments under the linked story on I-502 above in Mr. O’Neill’s article summarize the positions of the two groups.

    However, the patients against I-502 is a vocal minority and it is highly doubtful that it will gather the required signatures for the ballot.

    I-502 does not change or replace the state’s medical cannabis laws.

    It must be noted that under I-502, the privately owned retail shops would provide safe and affordable access to those who use cannabis recreationally or medicinally.

    This will make the quasi-legal or illegal dispensaries–tolerated out of necessity for lack of other options–that operate as money making businesses, unnecessary. Is it any wonder that there would be push-back? Or a campaign to scare “patients?”

    We must remember that California’s Prop 19 was rejected by many of those who were profiting from the marijuana industry, from growers to dispensaries, who did not welcome the demand that they become a regulated, tax-paying industry. But when those engaged in an illegal industry grow large enough that they are able to impact public policy to maintain their illegal status, we are on dangerous ground.

  5. rivitman says:

    notSpicoli,

    I’m not impressed by endorsements.

    Medical cannabis is a joke. The ease of getting a pot card, with virtually no bona-fides is self evident.

    And you cannot get past the fact that you cannot put state employees in the way of federal narcotics laws.

    You know what would impress me? a little forthrightness on the part of the legalization crowd.”We just want to get high, so lets find a way to do it that everyone can live with” would be a start.

    Because the legitimate medical use folks are a tiny minority, the tax revenue and crime reduction theorists are few. But the recreational users make up the bulk of the movement.They can gain ground with me by dropping all the canards, false flags, and leafy green logic, and focus on how to get it done with the minimum of impact to society, meaning me. Stop trying to justify pot, rationalize pot, and excuse pot.

    Just show haw it can be done without causing problems for non-users.

    This has not been accomplished.

  6. modyfied says:

    Rivitman: EXACTLY! No one has adressed THC limits on impairments, L&I claims or how to tax it fairly, when we all know most of it will be bootlegged. Show me an employer that wont be wary of a “casual” user, and I’ll show you a workplace lawsuit just waiting to happen. I am not on board with this, not because I do not use, but because there are too many variables a “stoned” person has not yet contemplated…

  7. DevilDog2019 says:

    (peeking out from behind Refer Madness) Rivitman & Modyfied, you two are completely led by your noses over this. A lazy individual on Pot is still a lazy person SOBER! A hard working responsible person will only cosume on off time. You are just ignorant on the topic, because you refuse to get educated!!!

  8. PatientsAgainstI502 says:

    Just a few points to clarify:

    – We don’t consider hundreds of patients, doctors, lawyers, caregivers and other Washington state voters to be a “vocal majority.”

    – We do not support or endorse driving while impaired. We simply ask that changes to existing law be based on science and ethics, rather than polling. Political expediency is not a reasonable explanation for wrongfully imprisoning innocent, unimpaired drivers.

    – The group which filed the “Safe Cannabis Act” initiative is not affiliated with Patients Against I-502. They are an independent organization which happens to be comprised of individuals who oppose I-502. Those individuals are also patients. However, the mission of these two groups does not coincide. Patients Against I-502 exists solely to educate the public about the unscientific DUIC proposal buried in the 66-pages of text that make up I-502. While we support her idea, Mimi Meiwes’ initiative is independent and separate from our intended goal.

    – There is ZERO financial motivation driving Patients Against I-502. Our opposition is strictly ethical and is centered around an unfortunate clause that will cause unimpaired drivers to be arrested, jailed and convicted of DUI when they are actually sober. The vast majority of our group have actively worked for legalization in the past and will continue to do so in the future. To imply that we are opposing legalization for financial reasons is patently untrue.

  9. Brian O'Neill says:

    Patient- Thanks for your comment. I’m glad you clarified the position of those who share your views, because clearly the Trib did not delineate between your group and Ms. Meiwes’.

  10. rivitman says:

    DevilDog2019, sorry, but that’s my personal experience with pot users. They are less than reliable. So thinks every employer out there that drug tests. I suggest proponents mount a scientific campaign to prove us all wrong.

    PatientsAgainstI502

    Absent any standard for measuring THC intoxication you propose what? Let em’ drive till we figure it out? I presume that the medical pot proponents are sufficient in number to generate their own irrefutable hard data. In the mean time, I hope patients get what they need, and everybody else gets together and presents us all with a detailed plan, addressing the myriad possibilities for social and legal difficulties. Every plan I’ve seen is lacking in depth and foresight, just concentrating on superfluous theoretical benefits like a reduction in gang violence or more prison space for violent offenders or the biggie, TAX REVENUES. And I think Tax revenues are grossly overstated for a product that can be produced easily in a walk in closet. If this were not so, there would be no Indian smoke shops or roll you own smokes outlets.

    And these so called “medical dispensaries” are making the legitimate medical pot crow look bad, as they will sell to anyone with the card, which an be obtained quite easily, by any adult, with little or no evidence to support their ….illness. I mean really, go into one of these places and the pot is branded like something out of the heroin sales scene in pulp fiction.

    Think this out, and if the bill isn’t 200 pages long, it’s probably not well considered. We don’t even do medical pot right at this time. Fix that first, and show the rest of us that the production, processing, sale and use of pot for the masses can be sufficiently managed and controlled.

  11. notSpicoli says:

    The TNT article did not mention the group Patients Against I-502 nor any other specific opposition group in the article mentioned above.

    It stated that (small “o”) “opponents of Initiative I-502 filed…”

    Ms. Miewes qualifies as she is a vociferous opponent of I-502 and its supporters. (For example, Ms. Miewes in commenting on I-502 and ALCU lawyer and I-502 director Alison Holcomb writes, “I believe Adolph Hitler was quite adept at criminalizing the innocent. Did he get resurrected as an attorney for the ACLU?”)

    The Miewes initiative would permit retail outlets to dispense and sell medical cannabis.

    Of particular note, the act states, “The State of Washington is ordered to protect and defend all provisions of this Act from any and all challenges or litigation, whether from individuals, officials, cities, counties, the state or federal governments.”

    Sounds expensive for the taxpayers. I-502, on the other hand, has its cadre of lawyers.

    The act also contains the following, “In determining impairment in regards to DUI levels, cannabis patients cannot be considered impaired by testing blood level THC. Impairment arrest/conviction must utilize an alternate and valid impairment assessment.”

    In contrast, I-502 allows only active THC measurements (delta-9) to be used in determining impairment.

    Currently, if an officer has probable cause for an arrest plus reasonable grounds to believe the driver is impaired, the driver can be required to submit to a blood test or refuse which results in an automatic, one-year license suspension. The results can be used as evidence at trial, even if only the inactive metabolite THC-COOH is discovered, and no active THC.

    The Miewes initiative greatly expands the already problematic medical cannabis industry.

    The complete 825 word text of The Washington State Safe Cannabis Act 2012 can be found at the website of the Secretary of State’s Office.

  12. notSpicoli says:

    Mr. O’Neill

    The link to “piece on i-502″ in your article has 2 comments by me. One notes the NAW position. The other is a neutral statement of the concerns by some users of medical cannabis:

    “Those who use cannabis as a medicinal herb hold that users can have very high levels of delta-9 THC (over the proposed legal limit) but are not impaired. Because of their high levels of THC the law would “per se” make it illegal for them to drive. They fear that under I-502, police will stop and even target them without probable cause and without evidence of impaired driving and demand that they submit to a blood test. This would result in arrest and possible loss of driving privileges.

    Plenty of lawyers have weighed in on both sides. But the big concern really boils down to police behavior. And this your area of expertise.

    And so, I welcome your comments on this. Under I-502, in your estimation, would police target people for blood draws in the absence of probable cause and unrelated to evidence of impaired driving?

  13. seawonpr says:

    IMHO, these legislative fixes would not be enough to counter the right to a defense that I-502 will take away for innocent unimpaired drivers who consume cannabis in our state.

    In the real world the cops and pros won’t have any trouble getting around any of these exemptions to the DUIC part of 1-502, even if any of them pass.

    As an example, one local Criminal Defense attorney says, “in defending alcohol Dwis, I see very few cases that are pure .08 and over cases, the cops always add that the driver showed impairment by:

    Bad driving
    Bloodshot watery eyes
    Bad coordination (“stumbled exiting his vehicle “)
    Incriminating answers to Qs
    Failed field tests

    Etc.”

    Notspicoli, you live in a fabricated dream land, very much removed from reality. Get a clue, your misinformation is not your fault, you are being spoon fed it one sip at a time at the NAW website through their “fact sheets.”

  14. PatientsAgainstI502 says:

    notSpicoli says, in regards to our organization, that we fear “police will stop and even target them without probable cause and without evidence of impaired driving and demand that they submit to a blood test.”

    Most acknowledge that probable cause for a blood draw is as simple as the real or percieved smell of marijuana, whether one is a terminally ill patient using cannabis under a doctor’s supervision or having just bought a ‘legal’ ounce under the planned commercial distribution scheme I-502 lays out. Patients need to be able to travel with their medicine and recreational users should be allowed to transport their ‘legal’ ounce from the point of sale to their home.

    Under I-502, if a driver is stopped for something like a tail light being out and police ‘smell’ marijuana, legal or otherwise, they will be forced to submit to a blood test. If that driver is over 21 and has more than 5 ng/ml of THC in their blood (a fraction of a microscopic amount), they will automatically found guilty of DUI with no legal standing to defend themselves in court. Research consistently shows that patients and frequent users will likely be over this limit at all times. This is why notSpicoli is admitedly pushing for an amendment to the medical use of cannabis act which addresses this precise fear. He knows that patients stand to be wrongfully convicted when they are not impaired in any way.

    What’s worse is that there’s an entirely seperate class of individuals who will suffer even more. Those who are under 21 are held to a next-to-impossible standard of ZERO ng/ml. Under I-502, if you are under 21 and have even the most miniscule amount of THC in your system, you will be automatically found guilty of DUI. Again, with no legal ability to defend yourself in court. The downright scary part of this scenario is that one can exceed a 0 ng/ml limit simply by being around secondhand smoke. This does nothing to protect the public and quite possibly puts us all in more danger when designated drivers are held liable for the behavior of others.

    New Approach Washington has said that probable cause will no longer include the smell of marijuana, which is patently untrue. Since I-502 does not legalize all forms of possession (for example, possessing a single plant will still be illegal, as well as possessing a crumble over one ounce), police will still be able to use the smell of marijuana as probable cause because they have no way of knowing if you have one ounce, one plant or more than one ounce.

  15. SensibleKitsap says:

    I-502 introduces two DUI(C) limits (driving under the influence of cannabis). One limit is 5 ng per mL of active THC in the blood stream for 21 and over. The other limit is 0.00 for under 21, known as zero tolerance.

    These limits are “per se”, meaning guilty until proven innocent. I-502 does not include a clause known as “rebuttable presumption”, or the right to rebut presumed guilt.

    Medical marijuana patients often test much higher than 5 ng/mL while completely sober, and days after use. For anyone under 21, use can be weeks prior, and still test higher than 0.00. Both scenarios can result in defenseless convictions, without proof of impairment.

    Science does not support setting an impairment standard for cannabis, as is done with alcohol. The two do not metabolize in the human body equally, and cannabis does not metabolize at consistent rates from person to person. Because of these differences, it is not conventional to write laws for cannabis impairment based on the blood alcohol content (BAC) model. Variances between users make it impossible to set a standard for impairment at this time.

    It is already illegal to drive impaired from marijuana under RCW 46.61.502. The law enforcement officer at the scene must determine if the driver is impaired, then the prosecution must be able to prove impairment. This process follows the American ideal of “innocent until proven guilty”.

    The reasons for the opposition of the DUIC provisions in I-502 are because they do not prove impairment. Instead, innocent people risk conviction from an arbitrary technicality. Not allowing people a defense will guarantee conviction rates, increasing potential for abuse of police powers to profile and target suspect cannabis users, especially medical marijuana patients.

    No one should suggest that driving impaired, from any drug, should ever be tolerated. Current law should be allowed to work, and no new laws should be written that falsely convict innocent people.

  16. SensibleKitsap says:

    The fact that marijuana is illegal is what drives up the street price. This is known as a “prohibition tax”, the price is established by the cost of doing business in an illegal black market. Demand being greater than supply, puts an even higher value on the product, which makes marijuana a lucrative commodity for criminal activity.

    The way to end this problem is to get rid of prohibition, and allow small home grows for recreational use. When supply balances with demand, the value of the product will go down. This will make home invasions and robberies less likely to happen.

    I-502 does not allow for private home grows, and it offers a three tier 25% tax rate at supply, distribution, and point of sale. This proposed tax structure, combined with lack of home grows, will keep street prices artificially high and do nothing to discourage black marketeers from continuing illegal sales.

  17. rivitman says:

    Now things are getting good, a judged by the last few comments.

    It’s a large can of worms, one not sorted out as easily as many seem to think.

  18. SensibleKitsap says:

    I-502 will be challenged at a federal level for two primary reasons. It violates the 5th Amendment of the U.S. Constitution, and Article 1 Section 9 of the Washington State Constitution on the basis of self-incrimination. States cannot make laws that conflict with federal law.

    As long as cannabis remains on the Controlled Substances Act, these issues will always be a problem. I-502 will suffer federal preemption.

    If I-502 were to pass, anyone seeking a business license would be admitting intent to commit a federal crime, this action constitutes self-incrimination, and will render 502 unconstitutional.

    If I-502 somehow escapes its unconstitutionality, and federal preemption, yet cannabis remains on the CSA; then any state regulatory agency, or tax revenue collected will be complicit of money laundering and conspiracy for a federally controlled substance.

  19. modyfied says:

    rivitman :

    as long as we stay off the stuff, we will think this process through clearly. As I stated previously, there are a LOT of issues not thought out, just proposed to “get it legal” and then worry about the fallout and loopholes later…

    @ DevilDog2019 …uneducated? Us? seems you are in the minority here….

  20. smokey984 says:

    What if both parties continue to fight the war on drugs just to give bureaucrats and cops bigger budgets and more jobs?

  21. Hi Brian, I’m writing from Law Enforcement Against Prohibition. I’ve been reading your columns and I would like to send you an invitation for you to review. Can you send me an email (shaleen at leap dot cc) so I have your contact information? Thank you.

  22. Brian O'Neill says:

    Thanks, Shaleen, but no.

  23. NewDragon says:

    502 is A sham! It’s written by LAWYERS! That says it all. They make money now defending mj patients. If 502 passes they will keep making money off the public. DUI thing is there for a reason. Money for LAWYERS AND THE REST OF THE THUGS aka prosecutors and judges.

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