Washington State voters legalized pot last week. It was not just a gesture. It was not simply a statement. Starting on December 6, adults 21 and older may legally possess up to one ounce of pot, and the city's prosecutor says there's nothing the Feds can do about it.
This alone is the biggest blow to prohibition in 85 years. Before Initiative 502 passed here and Amendment 64 passed in Colorado last Tuesday, 90 percent of all pot arrests were solely for possession—so this will end thousands of pot arrests every year.
Still, lots of folks are spreading misinformation, and even fear. "You can't under this initiative have an ounce of marijuana that doesn't come from a state-issued provider," Jack Driscoll, the chief criminal deputy for the Spokane County prosecutor, claimed last week. The Spokesman-Review credulously printed that statement, misleading readers to believe that until the state licenses stores, you can't possess marijuana. Meanwhile, a friend complained to me that he heard police were going to use "mouth swabs" to test drivers for marijuana intoxication, and everybody who wants a driver's license will now be piss-tested at the DMV.
That's all horseshit.
Possessing pot will be legal in three weeks, it doesn't matter where you got it, and officers cannot subject drivers to roadside marijuana tests (they couldn't do that before and they still can't). If you hear something that sounds impossible about I-502, it probably is.
But there are legitimate questions. In additional to legalizing possession, I-502 triggered a complex process to create an above-board marijuana market. For the first time in US history, we'll establish state procedures for growing, licensing, and selling marijuana. Some legal experts say those regulations may potentially create a conflict with federal law, others say they won't. But put that out of your head for just a second. We'll start with the most important stuff:
This is why Driscoll, the county prosecutor in Spokane, was wrong when he said you need to purchase pot from a state store to possess it legally. Section 20 of I-502 states unequivocally that "possession, by a person twenty-one years of age or older, of useable marijuana or marijuana-infused products in amounts that do not exceed those set forth in section 15(3) of this act is not a violation of this section, this chapter, or any other provision of Washington state law." Those amounts, specifically? Up to one ounce of bud, 16 ounces of solid-form marijuana in food products, and 72 ounces of cannabis in liquid form (such as lotions or, like, a shocking volume of hash oil)—no matter where it came from. You can also have pot paraphernalia.
This portion of the law, explains Seattle city attorney Pete Holmes, who is a prosecutor and was a cosponsor of the initiative, "is simply not preemptable." In other words, Holmes says that the Feds may challenge the future pot stores—but not the possession portion of the law. Furthermore, "The Feds cannot make the state criminalize that kind of conduct."
Marijuana possession technically remains a federal crime, but as a practical matter, Feds don't arrest or prosecute people for small-time possession, unless people do it on federal property. Nor can the Feds make local cops or prosecutors in Washington bust people under federal law.
Sergeant Sean Whitcomb, a spokesman for the Seattle Police Department, says: "For us, the law has changed, and people can expect no enforcement for possession."
Again, just because some people will claim otherwise, Whitcomb reiterates: "What you can expect is no enforcement on possession—that is a reasonable expectation." Prosecutors in King and Pierce Counties have already dismissed 220 pending pot possession cases.
A few caveats: Pot remains illegal for people under 21. You can't smoke pot in public or have an open package of marijuana in public (just like you can't drink in public, which is a dumb rule, but that's parity with alcohol law). Using pot in public will be a $50 infraction, just like drinking whiskey on the sidewalk. You also can't drive high. These parts of the law can't be challenged by the Feds, Holmes insists.
Growing and Selling Marijuana
Anyone who tells you that they know how marijuana is going to be grown and sold—it's gonna be farmed by Monsanto, it's gonna be packaged by Marlboro, it's gonna be taxed till grams cost $100—is full up to their ears in shit. How do I know this? Because regulations haven't been made yet.
The law stipulates that the Washington State Liquor Control Board must license marijuana growers, distributors, and sellers. A rule-making process is under way and won't end until December of 2013. They'll decide things like the location of stores, hours pot can be sold, where it can be grown, rules for advertising, standards for quality, and other details. They'll be holding public hearings, so if you want a say in the outcome, go to those hearings.
But be warned: I-502 did not legalize home growing or the unlicensed selling of pot—both remain a felony. This means that until the state sets rules for a marijuana market, there's no legal way to obtain it. But let's be honest here, buying pot has never been difficult.
Again, anyone who tells you they know what's gonna happen with the Feds is bluffing.
The US Department of Justice may challenge the part of I-502 that concerns licensing the legal marijuana market. They could file a lawsuit that seeks an injunction, thereby preventing the regulations for marijuana growing and sales from taking effect. But is their case a slam dunk? Will they file a lawsuit next month, next summer, next December when the new rules for growing and selling go into effect? Nobody knows.
Governor Chris Gregoire of Washington and Governor John Hickenlooper of Colorado have both begun talking to federal prosecutors. "Our goal is to implement the law according to the will of the voters," says Gregoire spokesman Cory Curtis, adding, "If the US Department of Justice has any clarity on their position, we'd like to know it."
If there is legal challenge, all we can be certain of is this: A federal case over how to legalize marijuana is exactly what this country needs to make marijuana legalization a mainstream issue. A federal challenge is a political opportunity.
Driving under the influence of marijuana remains illegal. I-502 says that adults 21 and older who are driving with more than five nanograms of active THC per milliliter of blood are automatically guilty of DUI. Of the handful of available scientific studies, most show people below that level after a few hours. Not one peer-reviewed study shows even the heaviest pot user above that level the next day. Officers would still require probable cause to stop someone and test their blood (just like now); blood tests could only be conducted at a medical facility.
Can an average Joe buy pot from a medical marijuana dispensary now? Does I-502 create new rules for those dispensaries? Do authorized patients lose their right to grow pot at home? Has anything changed about medical marijuana—at all?
No, no, no, and no.
I-502 doesn't touch the state's Medical Use of Marijuana Act, passed in 1998, so the rules for dispensaries, patients, and health care providers remain the same.
But things will get better for medical marijuana patients. Before I-502 passed, patients had zero legal protection from arrest (only a defense in court). Now they won't be arrested for possession of up to an ounce, while retaining all their other rights as a patient, such as the right to grow marijuana at home.
All That Other Shit
What's gonna happen when people go to the airport? Will Washington someday be a state for marijuana tourism? How would the Supreme Court vote? Stay tuned. But tune out blowhards who claim to know the answers.