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Initiative 502 FAQ

By on Nov 12, 2012 | 3 comments

November 6, 2012 was a historic day for the United States. Besides re-electing Barack Obama to a second term in the White House, states around the country had a variety of criminal and civil rights issues on the ballot. One of the biggest issues on the public’s radar occurred in my home state of Washington: Initiative 502, the legalization of marijuana. In the brief time since it has been approved by the votes, I-502 has received a lot of press, as well as lot of questions. Today’s post is a resource to answer some of those frequently asked questions surrounding I-502.

 What is the text of the law?

The complete text of I-502 can be found here but because the entire bill is 65 pages, some highlights are presented on this post.

Although initiatives are only permitted to be based on “single issues,” I-502 does a few things with current state marijuana laws. It legalizes it of course, but also creates additional DUI penalties. Furthermore, I-502 restricts the location of where people can ingest marijuana, how it can be bought and sold, and new revenue disbursements. More on that below.

Does this mean marijuana is completely legal?

Yes…to a point. I-502 completely legalizes on the state level a person possessing 1oz of useable marijuana, 16oz of solid product containing marijuana, and 72oz of liquid product containing marijuana. Numbers above those are still criminalized because they imply an intent to illegally distribute.

I-502 doesn’t change anything on a federal level. But we’ll get to that in a bit.

Where can I ingest marijuana?

Where you can’t ingest marijuana, in any of its forms, is anywhere considered public. This is similar to the laws on drinking alcohol. However unlike alcohol laws, which permit bars and taverns, I-502 doesn’t create pot houses, cafes, or similar places where you can ingest in public. That means users of marijuana must do so in the privacy of someone’s home.

That being said, while it is unlawful to ingest in public, it’s not a criminal act. You cannot be arrested or sent to jail because of public consumption. Instead violators are subject to a Class 3 civil violation, which carries a $50 fine. 

Where and when can I purchase marijuana?

Although passed by the voters, I-502 doesn’t go into effect until the results are certified by the Secretary of State, 30 days after the election. That means it won’t be legal to possess marijuana in any quantity until December 6, 2012.

However, the State-run stores that sell marijuana will not be operating by then. I-502 gives the state a year to establish the rules to license those stores. Expect the sale of marijuana to be heavily taxed.

So where does one get marijuana on December 6. I dunno, most people have a guy. Keep in mind I-502 does not change the legality of growing your own marijuana. Which, if you don’t have a medical marijuana license, remains illegal. So be careful about buying and selling marijuana, even after December 6.

What about the DUI (Driving Under the Influence) provisions?

The DUI provisions were probably the most contentious part of the initiative. The DUI laws will indeed change because of I-502, but not as much as people think.

Before I-502 it was illegal to drive while impaired by drugs, and that hasn’t changed. If someone drives a vehicle and their driving is appreciably affected by a drug, that person can be charged with DUI. In that event, the person should probably call an experienced criminal defense attorney.

Now, under I-502, a person can also be charged with a DUI if the active THC in their blood is 0.05 nanograms or higher. This somewhat mirrors the alcohol provisions of DUI, which allows a person can be charged if their driving is affected by alcohol or if their blood alcohol content is 0.08 or higher. Why 0.05 for marijuana? The number was a compromise among proponents of I-502. It’s not based on a lot of science.

Opponents of I-502 raised fears of massive “sweeps” of drivers where blood can and will be drawn willy-nilly, and if anyone had smoked marijuana in the last month they would run afoul of the 0.05 limit. How long someone will show 0.05 THC or higher is an interesting question and could indeed be longer than a few hours after smoking. Frankly, marijuana and its effect on the body simple hasn’t been studied like alcohol has been. However the “sweep” fears are not based in reality.

Police cannot stop a car for any reason and especially for no reason. This isn’t based on I-502, but rather the state and federal constitutions. As I describe here, police need a reason to initiate a traffic stop. This can be impaired-seeming driving or even a traffic violation. But it has to be well above a “hunch.” Similarly, while the police can request a warrant for a blood draw, that warrant must be based on real, articulable facts too. That could be the smell of marijuana, or someone admitting to smoking pot recently. So, you know, when the police ask about your drug habits, keep your mouth shut.

What about Federal law?

Yes, the Feds…that’s a bit of a sticky wicket. Before we get into I-502’s relationship to Federal law, let’s talk about what laws currently exist.

As of today, marijuana is listed as a “schedule 1” narcotic under the Controlled Substances Act (CSA). A schedule 1 narcotic is defined as a drug that

  1. Has a high potential for abuse;
  2. Has no currently accepted medical use in treatment in the United States; And
  3. Has a lack of accepted safety for any use of the drug under medical supervision.

Other schedule 1 drugs include Ecstasy and Heroin. Cocaine is a schedule 2 drug since it has some medical benefit as a topical anesthetic (people used to hurt their sinuses a lot and would need such a treatment).

It was President Nixon who signed the CSA in 1970 which listed marijuana as a schedule 1 drug, and that hasn’t changed since. Each state also passed a Uniform Controlled Substance Act (UCSA) which closely mirrored the federal CSA. Now with I-502 passing, Washington has amended their UCSA, directly opposing the CSA. This leaves a bit of a conflict.

The answer to the conflict is complex and not at all clear, dealing with preemption and supremacy and other fun topics. That’s not really the question. The question is 1) whether the Feds are going to intervene in Washington’s business, and 2) how does that affect the average citizen?

I’ll start with the second point first, although from here on out these are merely my guesses, so take it with a grain of salt.

My guess is that DEA agents or other federal dollars will not be used to start hunting down and arresting ordinary users of marijuana under I-502. It simply makes no economic sense. And we have some proof of this because the Feds have been mostly hands off on states’s medical marijuana users. I wouldn’t take marijuana on a plane or bring it into a federal park, but as far as ingesting in the privacy of your home, you should feel pretty safe in assuming that DEA agents won’t come breaking down your front door. Although if they do

The more interesting question to me is whether the Feds intervene, and that means whether the Department of Justice (DoJ) is going to sue Washington to block the law from going into effect. I don’t know the answer to this and it is possible the DoJ doesn’t either. The DoJ may be looking to see what the national or worldwide response is to legalization before deciding to intervene. Because of this uncertainty, I wouldn’t invest my life savings into opening a dispensary. But for the casual user, it is very unlikely federal agents are a threat.  

Are there any other I-502 resources?

You bet. The Seattle Police put out an excellent FAQ on the subject which you can read here.

Just remember these are uncharted waters, and no one is quite sure how it will all play out, which makes it both dangerous and exciting. However, if you do end up charged with a crime, either a federal possession charge or the new DUI provisions, feel free to give me a call. No matter what the new laws are, you should have an experienced advocate working on your behalf.

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  • Dean Swanson

    Very interesting Noah! This topic does make me wonder whether troopers will pursue pot DUIs they otherwise would have ignored for lack of evidence of impairment.

  • tokidoki

    can you still get charged after dec 6th if you have previous possession charge pending?

    • Noah_Weil

      Good question and attorneys are split on whether legally a dismissal must be granted. King and Pierce counties sidestepped the issue by dismissing all the possession charges on their books last week.

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