Washington state's marijuana law creates a hazy border

MCCLATCHY NEWSPAPERSMarch 22, 2013 

Northern Border

U.S. Customs and Border Protection officers inspect vehicles and interview travelers at the Peace Arch Port of Entry in Blaine on Sept. 8, 2011.

PHILIP A. DWYER — THE BELLINGHAM HERALD

— Perhaps nowhere is the disconnect between state and federal marijuana laws more evident than on the nation's northern border.

Canadians traveling south from British Columbia — where pot is illegal, but the law lightly enforced — are finding that before they can reach weed-friendly Washington they must first reconcile with the U.S. government, which controls the border and outlaws the drug.

Canadians are regularly busted at the border with quantities of weed small enough to be considered legal in this state, yet illegal in any amount under federal law.

In the past, U.S. Customs and Border Protection (CBP) officials would seize the drugs and block the individuals from the country, requiring them to then seek an immigration waiver if they want to enter the U.S. in the future.

Additionally, they would either be fined civilly by CBP or cited for possession by local law enforcement in the U.S. towns and counties along the border and prosecuted in the courts there.

But with marijuana now legal in Washington under Initiative 502, local law enforcement officials are no longer citing anyone 21 or older for possessing up to an ounce of marijuana, leaving border officials with no other option but to issue civil fines, in addition to the immigration penalties they impose.

"The state initiative did not change federal law," CBP Border Chief Thomas Schreiber said.

And the violations, he said, "are actually not that rare; we see them on a weekly basis."

It's happening much the same way at the state's seaports for those entering on ferries or on the Victoria Clipper.

At Vancouver International Airport, where CBP has pre-clearance operations for people traveling into the states, officials are referring violators to local law enforcement or fining them. Non-U.S. citizens are blocked from entering.

In all instances — whether it's a felony-level quantity over 40 grams of marijuana or misdemeanor amounts less than that — border officials usually contact Homeland Security Investigations officers to inquire if it's the type of case the federal government might pursue.

Invariably, federal prosecutors don't pursue drug cases unless they involve large-scale criminal or drug-smuggling organizations.

Regardless of whether pot is legal in Washington, people who travel back and forth across the northern border usually understand two things: "Going north, the kiss of death is (drunken driving); coming south, it's marijuana," said Len Saunders, an immigration attorney in Blaine.

Brian Fowler, of Surrey, B.C., learned that hard lesson in September when he tried to come to Washington to visit friends, as he's done once a month or so for years.

"They had dogs out sniffing and asked me about it," the 32-year-old said.

He'd completely forgotten about the three joints he had in his pocket until the dog stopped at his car and started pulling on its leash.

A judge in Blaine reduced Fowler's $1,000 fine to $700 and he walked away without a drug conviction on his record.

"I assumed everything was OK, but I still need a waiver" to enter the U.S. again, he said, a fee-based process in which immigration officials use discretion to reconsider cases of those it previously excluded from entering.

The Obama administration hasn't yet decided how the federal government will formally respond to the laws passed in November by voters in Colorado and Washington allowing recreational use of marijuana.

It's still illegal here for those under 21 to possess pot or for anyone to possess more than an ounce.

Driving under the influence of marijuana is also still illegal.

Before the change, many local prosecutors were willing to cut deals, particularly for those with no prior offenses. In cases involving small quantities of pot for personal use, such individuals could often walk away without a drug offense on their record.

Jim Wright, a private practice attorney who is also the prosecutor for municipal court in the border town of Sumas, said he has not prosecuted any cases since the new state law took effect.

"When the law was initially passed, there were a lot of Canadians who didn't know (possessing pot) was still a problem," Wright said. "Obviously the feds have not changed."

Violations at the Peace Arch border crossing, the most popular crossing in the state, are handled by the Blaine Municipal Court, which has prosecuted no Canadians since I-502 passed, although it has handled the cases of two underage Americans possessing marijuana.

Rajeev Majumdar, that court's prosecutor, who is also a private practice attorney in Blaine, said:

"Because many Canadians crossing the border tend to be honest, upstanding folks, they may simply admit to having a few joints."

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