New marijuana law creates maze of legal questions

January 6, 2013 

As the clock struck midnight on Dec. 6, many supporters of Initiative 502, which passed a month before, lit up their marijuana to celebrate Washington's new pot law -- which one major newspaper described as "among the most liberal in the world."

Outside the Space Needle in Seattle, as people openly smoked pot, one man yelled gleefully, "I'm not breaking any laws!"

However, I'm saying, "Not so fast!"

As a former prosecuting attorney with a legal background of almost 40 years, I'm concerned our state could be on the path of a new maze of legal and social problems as the result of I-502's approval.

Is pot now legal in Washington state? The new state law allows adults over the age of 21 to possess up to an ounce of marijuana for personal use. People possessing that amount might not think they're breaking any laws, when in fact, they have likely broken the law to obtain the drug.

Selling, growing and distributing cannabis (with some limited exceptions for medical marijuana patients) remains illegal in Washington. The state's Liquor Control Board has one year to adopt rules regarding legal licensing and sales of marijuana. Until that happens, purchasing pot in Washington is a crime.

Also consider this: Marijuana remains illegal under federal law. And federal law trumps state law.

How the Department of Justice will react remains to be seen. After the initiative passed, U.S. Attorney Jenny Durkin in Seattle issued this statement: "The Department's responsibility to enforce the Controlled Substances Act remains unchanged. Neither states nor the executive branch can nullify a statute passed by Congress. Regardless of any changes in state law, including the change that will go into effect Dec. 6 in Washington state, selling, growing or possessing any amount of marijuana remains illegal under federal law."

President Obama said enforcement would not be a top priority. However, he added, "I head up the executive branch; we're supposed to be carrying out the laws. And so what we're going to need to have is a conversation about, how do you reconcile a federal law that still says marijuana is a federal offense and state laws that say it is legal?"

Clearly, the president and Justice Department are conflicted. There's also speculation the federal government may sue Washington and Colorado, which approved a similar initiative, to force the states to adhere to federal law.

Indeed, the court battles are just beginning. In Thurston County, a judge rejected a request for an injunction that would have blocked new penalties from being imposed for driving under the influence of marijuana.

The initiative changes the state's DUI laws and imposes a threshold of five nanograms of THC per milliliter of blood as impairment, even if there is no evidence of impaired driving. Since THC, the active ingredient in marijuana, is stored in the user's fat tissue and can linger in the body, medical marijuana patients fear they may have to give up driving. There will undoubtedly be more court challenges regarding impairment behind the wheel.

In fact, drug tests can detect THC for weeks after it has been inhaled. Jobs could be on the line as employers seek to maintain safe, drug-free workplaces. Last year, the state Supreme Court upheld the right of employers to fire people for using marijuana. The new law offers no protection for employees and potentially puts employers at risk of having to further defend their drug-free policies in court -- all of which could be another strike to our state's economy.

Aside from the legal nightmares is the question, "Are we ready to address new social problems from increased access?"

Experts say state legalization of pot could double its usage, and that could lead to addiction, especially among youth. Last year, more than 4,200 young people in Washington were treated for marijuana addiction, more than any other drug.

In August, outpatient admissions for marijuana treatment among Washington's youth jumped 23 percent. And on the day the initiative took effect, two 13-year-old middle school students in Walla Walla were arrested for marijuana possession. This arrest is not surprising, given the message we're sending to young people about marijuana.

Law enforcement officers worry more marijuana will be crossing state lines in areas like the Palouse, where about 33,000 college students live. Transporting marijuana across state lines is a federal felony. How many parents are ready to receive that phone call from Idaho or Oregon?

Supporters sold the initiative as a way to free up resources for law enforcement and the courts, taking profits away from organized crime and providing billions of new revenue for the state. Yet organized crime is ramping up to sell more pot than ever before. Our courts will be bogged down with new legal challenges. And we won't see those billions of new state revenue for quite some time.

Nevertheless, the voters have spoken. As we proceed into this uncharted territory, I urge restraint among users and careful consideration among all while we navigate a new course of legal questions and social issues created by passage of Initiative 502.

w State Rep. Terry Nealey, R-Dayton, represents the 16th Legislative District and serves on the House Judiciary Committee. He is a former prosecuting attorney for Columbia County.

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