Saturday, January 30, 2016
You be the state sentencing judge: how much prison time for former state official guilty of (small-time?) marijuana dealing
The question in the title of this post is prompted by this local story from Michigan, headlined "Ex-state Rep. Roy Schmidt pleads, sold marijuana as 'source of income,' judge says." Here are the basics (with my emphasis added):
Former state Rep. Roy Schdmidt pleaded no contest Thursday, Jan. 28, to manufacture of marijuana. Schmidt initially fought charges as a registered medical marijuana caregiver and disputed the amount of marijuana he possessed.
But a police report, read by Grand Rapids District Judge Michael Distel to establish a basis for Schmidt's guilt, said he told police that he sold marijuana to 10 to 15 people who were not his registered medical marijuana patients. He told police that "he was operating his business as a source of income," Distel said.
Schmidt was charged last year with manufacture or delivery of marijuana after police raided his home on Seventh Street NW and a house he rented from his son on Myrtle Avenue NW. Police said Schmidt possessed nearly three pounds of marijuana and 71 marijuana plants. Caregivers are allowed to possess 2.5 ounces of usable marijuana for each of up to five patients. Schmidt has maintained that his drying marijuana was not considered usable.
He faces up to four years in prison when sentenced on March 22 in Kent County Circuit Court.... Under the plea, Schmidt admits no guilt but the plea is treated as such at sentencing. He was allowed to plead no contest because he could face civil forfeiture proceedings related to his marijuana operation.
Schmidt is free on bond. Kent County prosecutors will drop a second charge of manufacturing marijuana.
His arrest followed an ill-fated scheme to switch parties while he served in the House of Representatives. After being elected as a Democrat in 2008, he lost his seat four years later after a controversial switch to the Republican Party. He had spent 16 years on a Grand Rapids City Commission on the West Side of town.
I am cross-posting this story on my Sentencing Law & Policy blog because this case raises interesting classic "offender-based" sentencing issues: e.g., (1) should Schmidt's history as a relatively prominent politician be viewed as an aggravating sentencing factor (because it makes him more culpable as someone who was involved in making the state laws he broke) or as a possible mitigating sentencing factor (because he would seem like the type of person unlikely to be a serious recidivist); (2) should the prospect of Schmidt losing his home and/or his son's home through civil forfeiture proceedings significntly influence what criminal sentence he receives?
But, of course, what really captured my attention in this case is the different ways this defendant's offense might be viewed by a sentencing judge. His lawyers could perhaps claim, given the legalization of medical marijuana in Michigan, that Schmidt's crime is essentially a regulatory violation comparable to a liquor store owner who would often sell to underage college students. But prosecutors likely will assert that Schmidt should be viewed and sentenced like any other greedy drug dealer.
Thoughts, dear readers?
Thursday, January 28, 2016
Extra credit (for my students) and lots of admiration (for anyone else) for on-the-scene reporting on Ohio medical marijuana discussions
As highlighted by this local article, headlined "Medical marijuana hearings to be held around Ohio: here's how to share your thoughts," there is now a lot of on-going legislative activity in the Buckeye State concerning potential medical marijuana reforms. Here are the basics:
State lawmakers will hold several meetings early this year, including one this Saturday at Cleveland State University, to learn more about medical marijuana and where Ohioans stand on the issue. Here's a schedule of the meetings and information about how you can share your thoughts and stories with lawmakers.
Senate listening tour
State Sens. Dave Burke, a Marysville Republican, and Kenny Yuko, a Richmond Heights Democrat, will hold events in Cleveland, Cincinnati, Toledo, and Columbus to gather input about medical marijuana.
The forums are open to the public, and people who wish to speak are asked to submit written testimony to Burke or Yuko at Burke@OhioSenate.gov or Yuko@OhioSenate.gov. A spokeswoman for Yuko said the senators plan to be at each event all day.
Cleveland: 10 a.m. Saturday (January 30) in the Gerald H. Gordon Conference Pavilion, Wolstein Center, Cleveland State University, 2000 Prospect Ave E
Cincinnati: 11 a.m. Thursday, Feb. 4, Kresge Auditorium in the Medical Science Building, University of Cincinnati, 231 Albert Sabin Way
Toledo: 11 a.m. Thursday, Feb. 11, Scott Park Campus Auditorium, University of Toledo, 2225 Nebraska Ave.
Columbus: To be announced
House task force
House leaders have assembled a 15-member task force that will report its findings and possibly make recommendations by March 31.
The first meeting on Thursday will be an informational meeting, according to Rep. Kirk Schuring's office, where rules will be set. Task force members will be asked to refrain from making statements during the meetings, except during the first meeting, and instead ask questions of those testifying.
People who are interested in testifying at a future meeting should email Schuring's office at rep48@OhioHouse.gov.
The task force will meet in Columbus at the Statehouse on the following Thursdays:
- 3 - 4:30 p.m. Jan. 28 (informational meeting, no testimony taken)
- 3 p.m. Feb. 4
- 3 p.m. Feb. 11
- 7 p.m. Feb. 18
- 7 p.m. Feb. 25
- 7 p.m. March 10
An additional meeting will be held in April, if needed.
Because I teach on Thursday afternoons and due to other commitments, I am unlikely to be able to attend many (or perhaps any) of these medical marijuana events. For that reason, I am hopeful that some helpful readers (or my students) might be interested in sending me on-the-scene reports about these various events. I will blog these reports, and be grateful for the help. Relatedly, I urge folks to alert me to other websites or blogs or related resources keeping up with all this notable Ohio legislative action.
As reported in this new AP article, a "proposed constitutional amendment to allow medical use of marijuana will be back on the ballot in November, and organizers said Wednesday that growing public support and a larger voter turnout in a presidential election year should help pass the measure that narrowly failed in 2014." Here is more:
The group organizing a petition drive to put the issue on the ballot now has 692,981 certified voter signatures, nearly 10,000 more than it needed to put the proposed amendment on the ballot. “We feel very good that 60 percent plus of Florida voters will finally approve a true medical marijuana law,” said Ben Pollara, who is organizing the effort for United for Care.
The state requires that constitutional amendments receive at least 60 percent approval from voters. In 2014, 57.6 percent of voters supported a medical marijuana initiative. Pollara said at the time that supporters hoped lawmakers would recognize that most Floridians wanted to legalize medical marijuana and pass a bill to approve it.
But the Legislature has been tepid on the issue. In 2014, lawmakers did approve the use of non-euphoric marijuana to treat seizures. But the product is still not available to those who need it because the state has had problems establishing regulations overseeing its production and distribution. “We got nowhere, so here we are back on the ballot,” Pollara said. “Current law has helped no one.”
Personal injury lawyer John Morgan has spent more than $6 million between the 2014 and 2016 efforts to legalize medical marijuana. He says his brother, a quadriplegic who uses marijuana to control muscle spasms, is one of his inspirations behind the campaign. In an email to supporters Wednesday night, Morgan said, “We’re back. We’re going to win for the patients. BELIEVE!!!”...
Pollara noted that millions of dollars were spent opposing the 2014 initiative and it still received nearly 58 percent support. As more people approve of the idea of medical marijuana and with more voters expected to turn out this year, he said he’s confident it will pass despite any campaigns mounted against it. “One thing that we learned is that we don’t have to respond to everything they say; we don’t have to match them dollar for dollar. We just have to get out the message that marijuana helps people who are sick and suffering,” he said.
As was true in 2014, it will be interesting to watch how a medical marijuana campaign in Florida, and this time around we will have the added excitement of presidential candidates being asked to weigh in whenever they campaign in this significant southern swing state.
Saturday, January 23, 2016
The question in the title of this post is prompted by this local article from Maine, headlined "Sales of medical marijuana jumped 46 percent in Maine last year: The state's pot dispensaries took in $23.6 million as the social stigma faded and more patients seeking relief from chronic pain tried the drug." Here are excerpts:
Mainers spent $23.6 million on medical marijuana from dispensaries last year, a 46 percent increase driven by multiple factors, including patients seeking alternatives to prescription painkillers and more doctors certifying people to use the drug, according to dispensary operators.
Operators say the increase in sales illustrates the growing willingness of patients and doctors to consider alternatives to traditional medicine, and a reduction in the social stigma surrounding the use of medical marijuana.
But an official for the Maine Medical Association said Wednesday the big jump also shows why the medical community has resisted opening the program to more patients with different medical conditions, citing a lack of research that demonstrates medical marijuana is effective in treating them.
The $23.6 million in 2015 dispensary sales generated $1.29 million in sales tax, according to Maine Revenue Services. In 2014, the dispensaries sold $16.2 million worth of medical marijuana products and collected more than $892,000 in sales tax, a 40 percent increase over the previous year and more than triple the tax revenue collected in 2013. The sales figures from Maine Revenue Services do not include numbers from the state’s 2,255 caregivers, who are small-scale growers authorized to sell marijuana to up to five patients.
“There are a number of factors at play here. The first would be that Mainers are becoming more used to the idea of therapeutic cannabis,” said Becky DeKeuster, director of education for Wellness Connection, which operates four of Maine’s eight dispensaries. “We’ve had a very successful dispensary program for five years now and people are becoming used to this option.”
Maine is one of 34 states that allow some form of medical cannabis. Maine legalized medical uses in 1999, and the state’s first dispensaries opened in 2011. Last year, Maine’s program was voted the best medical marijuana program in the country by Americans for Safe Access, a national group that advocates for legal access to the drug.
The state cannot provide an exact number of patients because it does not keep a registry, but doctors have printed more than 35,000 certificates required under state regulations to certify patients. That number could include duplicates and replacement certificates and is likely higher than the actual number of patients, said Samantha Edwards, spokeswoman for the state Department of Health and Human Services, which oversees the medical marijuana program.
About 340 medical providers certified patients to obtain medical marijuana. Patients qualify for certification if they have one of a dozen specific conditions, including cancer, glaucoma, chronic pain and Crohn’s disease. Tim Smale, operator of the Remedy Compassion Center in Auburn and president of the Maine Dispensary Operators Association, believes there has been about a three-fold increase in the number of doctors certifying patients in the past couple of years. Maine law has been amended so that nurse practitioners and physician’s assistants also can certify patients....
Gordon Smith, spokesman for the state medical association, said the large increase in sales illustrates why the association has lobbied against efforts to expand the medical marijuana program to include more qualifying conditions or eliminate them altogether. “We don’t want to put Maine’s medical community in a position where it’s being asked to be a front for recreational use of marijuana,” Smith said. “We acknowledge marijuana helps a small number of medical conditions and there is good evidence of that, but for many of the (conditions) on the list, there’s not scientific data to establish marijuana is helpful.”
One condition that has been debated is post-traumatic stress disorder, which Maine added to the list of qualifying conditions in 2013. The Mayo Clinic defines post-traumatic stress disorder as a mental health condition that’s brought on when a person sees or experiences a severely traumatic event. A person suffering from PTSD may have uncontrollable thoughts about the event and also experience flashbacks, nightmares and severe anxiety.
Although several other states have authorized medical marijuana sales to people with PTSD, the U.S. Department of Veterans Affairs describes the practice as a growing concern because some veterans are using the drug to relieve symptoms of PTSD, yet there is a lack of medical evidence of its effectiveness.
DeKeuster said Wellness Connection, which serves about 11,000 patients across the state, is seeing more patients who want to use medical cannabis as a first option for treatment instead of as a last resort. The top three qualifying conditions among Wellness Connection patients are chronic pain, post-traumatic stress disorder and cancer. “Physicians and patients both are looking for a pain relief solution that is natural,” DeKeuster said....
Another factor contributing to the rise in the use of medical marijuana is that dispensaries have dozens of strains, as well as pills, tinctures and edible forms that make taking the drug easier, DeKeuster said. Smale said dispensary operators across the state report similar trends among all their patients, including seeing more elderly people who want to use medical cannabis for treatment of chronic pain. The Remedy Compassion Center, which Smale owns and operates in Auburn, now primarily serves patients between ages 50 and 70, he said. “The other things we’re finding is folks are looking for an alternative to their opiates,” he said. “We hear many anecdotal reports of people reducing or eliminating opiate use through medical cannabis.”
In addition to anecdotally answering some questions about what is going on with medical marijuana in Maine, it raised for me a bunch of questions about whether these developments in the Pine Tree State are also playing out in a bunch of other medical marijuana states. In particular, I would love to know if dispensary sales are up similarly in a number of other states and also whether there is any reliable data about "people reducing or eliminating opiate use through medical cannabis."
Thursday, January 21, 2016
As reported in this local article, headlined "National marijuana group plans Ohio medical marijuana amendment for 2016 ballot," big and notable marijuana reform news keeps on coming in the Buckeye State. Here are the basics and the context:
A major national player in the marijuana legalization movement plans to put an Ohio medical marijuana measure on the November ballot.
Marijuana Policy Project, based in Washington D.C., plans to propose a constitutional amendment establishing a medical marijuana system similar to those in 23 other states and the District of Columbia, according to the organization's website. The Ohio amendment would allow people with certain "serious medical conditions" to purchase marijuana from retail stores or grow their own after obtaining physician approval. The state would license businesses to grow, process, test, and sell marijuana to approved patients.
MPP led successful recreational marijuana initiative efforts in Colorado and Alaska and medical marijuana measures in Michigan, Montana, and Arizona. The organization has also worked with state legislatures to write medical marijuana laws.
Grassroots marijuana legalization efforts have struggled to qualify for the ballot in Ohio because they lack the money to hire signature gatherers and run a robust education campaign. Ohio has not been on the radar for MPP and other major funders looking to expand legal marijuana. Last year, MPP quietly supported Issue 3, Ohio's failed recreational marijuana amendment, but did not advertise its support or contribute to the campaign.
ResponsibleOhio, the political action committee backing Issue 3, was the first pro-marijuana group to collect the large number of signatures required, spending more than $20 million on its campaign. But the amendment limited the 10 commercial growing licenses to groups of campaign investors and would have legalized recreational marijuana, which divided Ohio's pro-pot advocates and attracted hundreds of opponents statewide.
MPP has not formally announced its 2016 effort, but it posted a job opening Wednesday evening for an Ohio-based campaign manager. The posting says much of the campaign will be subcontracted through a consulting firm in Columbus. It was not known Wednesday evening whether that firm would be the Strategy Network, which collected signatures for and ran the Issue 3 campaign. Strategy Network founder Ian James co-founded ResponsibleOhio and was the face of the campaign.
James' co-founder Jimmy Gould and Issue 3 author Chris Stock said last week they are not working on any ballot initiatives this year and instead want to work with state lawmakers to legalize medical marijuana.
This job posting on the MPP website provides additional information on what MPP has in mind for Ohio in 2016, and here is a paragraph from that posting:
The 2016 campaign — which is formally led by the new “Ohioans for Medical Marijuana” (OMM) that’s coordinated by MPP’s headquarters in Washington, D.C. — is focusing only on medical marijuana, which enjoys a high level of support among Ohio voters. If passed by a majority of Ohio voters on November 8, this initiative would legalize medical marijuana in a manner that’s similar to the laws in 23 states and the District of Columbia.
The development strikes me as HUGE news in the marijuana reform arena, not just for Ohio but also for various nationwide interests. My sense has always been that MPP will not get involved in a state initiative effort unless and until (1) it has significant funding to support its work, and (2) it feels pretty confident it can and will prevail at the ballot. So the fact MPP now had resources and confidence for an expensive marijuana reform effort in a swing state in 2016 suggests it believes the Buckeye State is very ready to move away from blanket prohibition.
Not to be overlooked, a big medical marijuana reform initiative effort in swing state Ohio could (and perhaps would) impact voter turn out in significant ways in a state that Prez candidates always want to carry and that has a significant Senate seat in play. Indeed, I am inclined to guess that MPP got at least part of its funding for this Ohio effort not only from traditional marijuana reform supporters, but also from deep-pocketed supporters of Democratic candidates. Interesting times!!
Recent related post:
Monday, January 18, 2016
I was supportive of the failed (and very far from ideal) marijuana reform initiative campaign in Ohio in 2015 in part because the Ohio General Assembly had never before shown any serious interest in even considering any serious marijuana reform in the Buckeye State. But, as this local article highlights, the legislative times they are a-changing in 2016 already in Ohio. And the article, headlined "Strange Bedfellows Are Part Of New Medical Marijuana Task Force," reports that some folks involved in the failed 2015 initiative are being included in the new year developments:
Ohio lawmakers who have been signaling they want to consider medical marijuana legalization have taken an unexpected step. Republican House Speaker Cliff Rosenberger stood in front of an interesting group of people when he announced there will be a task force to study medical marijuana in Ohio. “There’s a lot of groups that are going to have interest in this topic and what we have tried to do is put together a group of interested parties that can represent a broad swath of different interest groups throughout the state with different aspects and different varieties with an open mind to hear out this issue and talk about this issue before us in medical marijuana.”
That diverse group on this task force includes representatives from the Ohio State Medical Association, the Ohio Children’s Hospital’s Association, the Fraternal Order of Police, the Buckeye State Sheriffs' Association, the Ohio Chamber of Commerce and former Ohio Attorney General Betty Montgomery. And there are two somewhat surprising members: Chris Stock and Jimmy Gould, former leaders of ResponsibleOhio, the group that brought forward the pot plan that voters overwhelmingly rejected last fall. Gould says he's glad to be working with the groups that had fought against Issue 3 last fall.
“Ohio needs medical marijuana, first and foremost and needs it for everything….for chronic pain, for conditions, but it needs to be regulated properly. It needs to be done the right way. We went from probably zero to 250 miles an hour in a state that it is a little difficult to go from zero to 100. I’m prepared to accept 100 right now and that is to pass a legislative action for medical marijuana.”
Gould says he’s agreed to put any effort to legalize marijuana on hold for now. And he says the Fresh Start plan, the initiative that would allow people with past non-violent marijuana offenses to clear their records, is dead for now. “You can’t expunge without having legalization. The voters knew that. They knew exactly what they were doing when they voted the way they voted. I had to hear them. We spent $25 million, we got defeated. And when you lose, you get back up on your feet and you take the best path that is available to you. When we were approached by several people and I approached several people, you know we want a victory out of this thing and the victory we want is what is good for Ohio and we have always wanted that.”
Just last month, Ian James, the man who headed up the failed ResponsibleOhio campaign, said investors of it wanted to go back to the ballot this fall with another legalization plan. The ResponsibleOhio campaign had been renamed Free Market Ohio and James said it was full speed ahead to collect petition signatures to put medical marijuana legalization on the ballot this fall. But Gould says moving forward with that right now is not the answer. “We didn’t just lose 51 to 49. We got beat. And I come from a competitive sports family and world and we got beat. And when you get beat that way, you come back and figure out, ok, what’s the next best way? FreeMarket Ohio was not the answer."
Republican State Representative Kirk Shuring will head up the task force. And he says while it will meet several times between now and the end of March, there is no promise of specific legislation. He says this task force is an opportunity for different groups of people with different ideas on the subject of marijuana to get together to try to find some common ground. “We have a time out and we are going to have a conversation and we are optimistic that it will lead to something we can point to at the end of March.”
Meanwhile, Ohio Senators plan to approach the issue of medical marijuana differently. Republican Senate Caucus Communications Director John Fortney says Republican Senator David Burke and Democratic Senator Kenny Yuko plan to hold a series of town hall meetings on medical marijuana in public forums throughout the state. “The people of Ohio are not interested in seeing the pill mill equivalent of medical marijuana on every street corner in the state of Ohio. That said, we understand that there is some support for what it can do for people who are suffering from chronic illness and I think that’s going to be part of the conversation from these public forums.”
I am encouraged (though not especially surprised) not only that (1) Ohio's elected officials now understand that they cannot and should no longer ignore the significant interest in marijuana reform amoung the citizenry, but also that (2) some state leaders are trying to co-opt into the effort persons who previously raised tens of millions of dollars to support reform in 2015. Thoughtout the 2015 reform effort in Ohio, I had an inkling that, even if the ResponsibleOhio's full legalization efforts went very badly (and it did), the conversations engendered and the monies raised through the reform effort would garner significant attention from significant public officials.
Notably, though, as this other local article details, the emergence of a medicial marijuana reform task force in Ohio is unlikely to completely quash interest and efforts for initiative-based reforms in the Buckeye state in the months ahead. The article is headlined "Ohio marijuana legalization supporters still push for 2016 ballot issues," and here are excerpts:
ResponsibleOhio won't be back with another marijuana legalization amendment this year, but marijuana advocates said Friday they will push forward with ballot measures for November as well as work with state lawmakers studying medical marijuana legalization.
Legalize Ohio 2016, also known as Ohioans to End Prohibition, plans to continue to try to collect the 305,591 signatures of registered Ohio voters necessary by July 6 to qualify its issue for the November ballot. Its proposed constitutional amendment would legalize recreational and medical marijuana, as well as allow farmers to grow hemp.
Legalize Ohio 2016 President Sri Kavuru said his group will encourage its supporters to be involved in discussions at the Statehouse on the medical marijuana issue.... Kavuru said his group will encourage advocates to testify at the task force meetings and in town hall meetings state Senators plan to hold across the state.
Kavuru said he's hopeful the legislature will enact good legislation that establishes an industry and serves many types of patients. "At the end of the day, we do want reform for patients first," Kavuru said. "If they pass the right medical marijuana law, then it's not worth going through a ballot initiative. If they don't or we hear they're passing something we don't like, we'll continue with the initiative. The citizens' initiative process is there in case the government doesn't do what you want."
The group has collected about 80,000 signatures, Kavuru said, but many petition books are still in the field. Kavuru said the group, which has relied on volunteers thus far, will have the money to hire paid signature collectors. Legalize Ohio 2016 is the only recreational marijuana measure in motion....
Ohio Rights Group, which had been collecting signatures for a medical-only measure until it backed Issue 3, could still qualify for the November ballot. ORG President Mary Jane Borden said the group does not have the money to pay signature collectors or run a campaign and instead will focus on educating lawmakers about the benefits of medical cannabis....
A new, medical-only measure was filed Thursday with the Ohio attorney general. The Ohio Medical Cannabis Amendment, backed by longtime marijuana advocates Tonya Davis and Carlis McDerment, would allow people with a qualifying condition such as glaucoma or multiple sclerosis to purchase and use marijuana. If the proposed summary is cleared by the attorney general, the group will have to collect 305,591 signatures of registered Ohio voters to put the measure on the ballot.
Disconcertingly, while the folks involved with Legalize Ohio 2016 pushed for a no vote on full legalization proposed by ResponsibleOhio in 2015 with promises that they would bring much better reform to voters in 2016, it now sounds as though the Legalize Ohio 2016 folks are suggesting they would be content now with just medical marijuana reform. Moreover, with the challenges posed by collecting hundred of thousands of signatures and a new Ohio constitutional restriction on ballot access for initiative, my deep fear that the Legalize Ohio folks would face an uphill battle to give voters another chance to consider full legalization seem to be coming to fruition.
January 18, 2016 in Campaigns, elections and public officials concerning reforms, Medical Marijuana Commentary and Debate, Medical Marijuana State Laws and Reforms, Recreational Marijuana Commentary and Debate, Recreational Marijuana State Laws and Reforms | Permalink | Comments (2)
Tuesday, January 12, 2016
The title of this post is the headline of this notable new Vice article. Here are excerpts:
New York state lawmakers voted to legalize marijuana for medical use in 2014, and Governor Andrew Cuomo signed the bill into law last June. The new law just took effect on January 6 — but it hasn't made it any easier for sick New Yorkers to get high. Among the 23 states that now allow some form of legal weed, New York's law is among the most restrictive. Only a handful of serious conditions qualify for a prescription, and so far there are only 71 patients in the entire state. The patients are only allowed to use tinctures and oils, which can be vaporized, inhaled, or consumed orally in capsules. Smoking or growing marijuana is still strictly forbidden.
Advocates for the palliative use of marijuana contend that New York's law is far too narrow. While medical marijuana has become increasingly mainstream over the past decade, Keith Stroup, a DC-based attorney and founder of the National Organization for the Reform of Marijuana Laws (NORML), said there's still a lingering suspicion by some lawmakers that patients just want to use the drug recreationally. "State legislators tend to think that getting high is something to be avoided," he said. "And they're trying to avoid the appearance of someone enjoying themselves when they were meant to be taking their medicine… They don't want to see it turning into another California, where anyone can get a prescription."
New York wields considerable influence over national policy, and Stroup thinks the new law could be bad news for patients in states that have yet to legalize medical marijuana. Stroup noted that when New Jersey set a precedent by becoming the first state to prohibit patients from cultivating their own plants, Delaware, Illinois, and Washington, DC followed suit. Stroup said he expects states in the Midwest and South to follow New York's model by outlawing edibles and smoking when they eventually pass their own medical pot laws. Pennsylvania is currently finalizing a bill that includes those same tight restrictions....
In a letter sent to the New York state legislature, New York Physicians for Compassionate Care — a group that represents more than 650 doctors who support medical marijuana — stressed that numerous scientific studies have shown that smoking cannabis is generally safe and can be beneficial in some cases. The letter also voiced concern that tinctures or extracts — which have higher levels of THC, the psychoactive compound in weed — might prove too potent for patients accustomed to self-medicating by smoking....
Even the few patients who do qualify and are willing to go through the hassle will have a hard time finding a doctor that can write them a prescription. Only licensed physicians whose expertise includes [certin limited medical] conditions ... can prescribe medical marijuana in New York. To do so, the doctors have to complete a special course that lasts up to four hours and costs $250.
Saturday, January 2, 2016
There are many reasons I have been telling colleagues and students that 2016 is likely to be a HUGE year in the marijuana law, policy and reform space, and I am obviously not alone in looking toward this new year as defining a dynamic and likely historic year in this arena. To that end, here are links to (and brief excerpts from the start and headings of) two notable recent articles sounding these themes:
From Rob Kampia, executive director, Marijuana Policy Project at The Huffington Post, "2016 Will Be the Biggest Year Yet for Marijuana Policy Reform":
I don't often use superlatives, but it's easy to say that 2016 will be the most significant year yet in the battle to repeal marijuana prohibition in the United States. Up until now, the two biggest years were 1996, when California became the first state to legalize medical marijuana, and 2012, when Colorado and Washington became the first two states to legalize marijuana for adults 21 and older.
2016 will likely comprise a cornucopia of cannabis policy advances, which I'll enumerate in the form of predictions.
Federal Policies ...
State Ballot Initiatives ...
State Legislation ...
On-site Consumption ...
From Sean Williams at The Motley Fool, "Here's Why 2016 Could Be Marijuana's Most Important Year Yet":
Although marijuana remains illegal at the federal level, many aspects of how marijuana is treated have changed dramatically over the past two decades.
In 1995, there wasn't a single state that allowed marijuana to be prescribed by doctors, support for marijuana's legalization stood at around 25% in Gallup's national poll, politicians avoided the topic like the plague, and the idea of recreational marijuana amounted to nothing more than a joke.
Yet, here we stand 21 years later with 23 states having legalized marijuana for medicinal purposes, more than half of all respondents in Gallup's national poll sharing a favorable view of marijuana, politicians freely taking a stance on marijuana, and four states -- Oregon, Washington, Colorado, and Alaska -- all legalizing the recreational use of marijuana since 2012. To opine that marijuana is gaining steam might be an understatement.
For marijuana supporters, access to new treatment pathways and the potential to use the drug recreationally without the fear of federal prosecution are the ultimate goals. For the states, it's all about the money. Tax revenue generated from the retail sale of marijuana can be critical to funding education, law enforcement, and even securing jobs within a state. Colorado's Proposition BB, which passed in a landslide in the November elections, secured $40 million in marijuana retail tax revenue for schools within the state.
But as exciting as marijuana's last two decades have been, the coming year could be its most important yet. The way I see it, there are three events in 2016 that could shape the future of the drug and marijuana businesses.
1. The 2016 elections ...
2. A look back at Oregon's first year of sales ...
3. Can Epidiolex deliver? ...
January 2, 2016 in Campaigns, elections and public officials concerning reforms, Federal Marijuana Laws, Policies and Practices, Initiative reforms in states, Medical Marijuana Commentary and Debate, Medical Marijuana State Laws and Reforms, Recreational Marijuana Commentary and Debate, Recreational Marijuana State Laws and Reforms, Who decides | Permalink | Comments (0)
Wednesday, December 16, 2015
Though there are a number of federal marijuana reform bills kicking around Congress, it seems very unlikely any of these bills will be moving forward anytime soon. In the meantime, though, marijuana reform issues and proposals keep coming up in debates over government spending bills. And, in the wee hours last night, Congress passed a big new spending bill that included (and failed to include) some notable marijuana reform provisions.
Representative Earl Blumenauer, a supporter of federal marijuana reforms, issued today this press release summarizing what appears and does not appear in the omnibus bill. Here is part of the text of this release:
Representative Blumenauer is pleased to see the inclusion of the following provisions in the omnibus package:
- The policy championed by Representatives Dana Rohrabacher (R-CA) and Sam Farr (D-CA) that prevents the Department of Justice from interfering in the ability of states to implement legal medical marijuana laws (Division B, Title V, Section 542)
- Language that supports industrial hemp research allowed under Section 7606 of the 2014 Farm Bill (Division B, Title V, Section 543 and Division A, Title VII, Section 763)
Representative Blumenauer is disappointed, however, that the bill falls short by not including provisions that:
- Make it easier for banks to do business with state-legal marijuana businesses
- Allow Veterans Health Administration providers to recommend medical marijuana to their patients in accordance with state law, a provision he championed in the House
Representative Blumenauer is also disappointed to see the continuation of a rider that interferes with Washington, DC's ability to pass laws dealing with the sale of marijuana for adult use.
Tuesday, December 1, 2015
While on the road last week, I did not get a chance to blog about various interesting marijuana reform stories I noticed over the long holiday weekend. Making up for the time away, here is a round up of some of the notable medical marijuana pieces from various states that emerged over the past week:
From Alabama here, "Epileptic mom who used marijuana raising funds to fight charges"
From Connecticut here, "One year later, patients swear by medical marijuana"
From Florida here, "Medical marijuana back in Florida political spotlight"
From North Dakota here, "Medical marijuana petitions to begin circulation in North Dakota"
- From Wyoming here, "Medical marijuana proposal in peril as pro-pot group suffers from infighting in Wyoming"
From the AP here, "In Medical Marijuana States,' Pot Doctors' Push Boundaries"
Friday, November 20, 2015
The title of this post is the headline of this AP article providing an effective review of the state of tribal affairs concerning marijuana reform roughly a year since the US Department of Justice issued notable guidance concerning federal law enforcement priorities in this arena. Here are excerpts (with links from the source):
Tribes across the U.S. are finding marijuana is a is risky business nearly a year after a Justice Department policy indicated they could grow and sell pot under the same guidelines as states.
Federal raids on tribal cannabis operations in California followed by a South Dakota tribe's move this month to burn its crop amid fears it could be next have raised questions over whether there's more to complying with DOJ standards than a department memo suggested last December.
The uncertainty — blamed partly on thin DOJ guidelines, the fact that marijuana remains an illegal drug under federal laws, and a complex tangle of state, federal and tribal law enforcement oversight on reservations — has led attorneys to urge tribal leaders to weigh the risks involved before moving forward with legalizing and growing pot.
"Everybody who is smart is pausing to look at the feasibility and risks of growing hemp and marijuana," said Lance Gumbs, a former chairman of the Shinnecock Tribe in New York and regional vice president of the National Congress of American Indians. "But are we giving up on it? Absolutely not."
At a conference on tribal economic development held in Santa Fe, tribal leaders and attorneys said Wednesday that the raids have shown there may be more red tape for tribes to negotiate when it comes to legalizing cannabis than states have faced. That's especially the case for tribes that are within states where marijuana is not legal....
"Industrial hemp, medical marijuana and maybe recreational marijuana present a lot of opportunity. But for now, the best advice is to proceed with caution," said Michael Reif, an attorney for the Menominee tribe in Wisconsin, where tribal leaders filed a federal lawsuit Wednesday after federal agents recently seized thousands of hemp plants grown for research. "We're seeing the ramifications of things being unclear in a way states didn't."
The Flandreau Santee Sioux in South Dakota — a state where marijuana isn't legal — was the first to approve recreational pot under tribal law with a vote in June, and was one of the most aggressive about entering the industry, with plans to open the nation's first marijuana resort on its reservation north of Sioux Falls.
But after weeks of discussions with authorities who signaled a raid was possible, the tribe announced last week it had burned all of its marijuana plants. Anthony Reider, the tribe's president, told The Associated Press the main holdup centered on whether the tribe could sell marijuana to non-Indians, along with issues over where the seed used for planting originated. He suggested that by burning the crops, the tribe could have a clean slate to relaunch a grow operation in consultation with authorities.
In California, the Alturas and Pit River Indian rancherias launched tribally run marijuana operations that were raided by federal authorities, with agents seizing 12,000 marijuana plants in July. The regional U.S. attorney's office said in a statement that the two neighboring tribes planned to distribute the pot off tribal lands and the large-scale operations may have been financed by a foreign third-party foreign. It's not clear if the two tribes have plans for a new marijuana venture, and calls from the AP were not immediately returned.
The California and South Dakota tribes are three of just six so far this year that have legalized medical or recreational marijuana on their reservations. The Squaxin Island Tribe in Washington state is another, and just opened a store last week for retail sales of the drug. But most expect the tribe to face fewer legal challenges because Washington allows for recreational marijuana use and the tribe entered into a compact with the state that sets guidelines for taxing pot sales.
"The tribes are not going to be immune to what the local attitudes toward marijuana are going to be," Trueblood said. "If there's one 30,000-feet takeaway from this year, it's that you're not going to be successful if you don't work with you local governments or U.S. attorneys."
Prior related posts:
November 20, 2015 in Federal Marijuana Laws, Policies and Practices, Medical Marijuana Commentary and Debate, Medical Marijuana State Laws and Reforms, Recreational Marijuana Commentary and Debate, Recreational Marijuana State Laws and Reforms, Who decides | Permalink | Comments (1)
Thursday, November 19, 2015
As reported in this local article, headlined "Pennsylvania House panel advances medical marijuana legislation," the Keystone State had a key legislative development yesterday with respect to marijuana reform. Here are the basic details:
Pennsylvania is one step closer to legalizing medical marijuana, following a successful committee vote Wednesday in the House that positions the bill for final passage. Before any proposal becomes law, however, it is subject to an amendment process that legalization advocates fear could dilute it.
Senate Bill 3 received an affirmative 25-8 vote in the House Rules Committee. The proposal would legalize marijuana use for patients with certain illnesses and establish a regulatory framework for growing, processing and prescribing.
“We believe that it can benefit a significant number of Pennsylvanians, but if the House waters it down with arbitrary restrictions, then we fear that it will be a medical cannabis bill in name only,” said Patrick Nightingale, executive director of the legalization advocacy group Pittsburgh NORML. The vote is a victory, Nightingale said, but he's cautious about what comes next.
All eight votes in opposition came from Republicans, who control the majority in the chamber. House Republican spokesman Steve Miskin said amendments are being prepared and the bill could be voted on by the full House as early as next week. Feared changes could include a cap on the amount of THC that can be used in the medicine. Under the current proposal, patients with select illnesses — such as cancer and seizure disorders, among others — could receive a prescription. Smoking marijuana would not be a permitted treatment, and delivery methods would be limited to oils, edible products, ointments and tinctures.
Gov. Tom Wolf favors legalization for medical purposes and called on the Legislature to send a proposal to his desk. “It's past time for them to act on it,” said his spokesman, Jeff Sheridan....
The Senate passed the legalization in May by a 40-7 vote. House Majority Leader Dave Reed, R-Indiana County, then convened a bipartisan committee to vet the bill and consider changes. Reed voted for the bill on Wednesday. State Sen. Daylin Leach, D-Montgomery County, is a co-sponsor of Senate Bill 3 and began pushing for a legalization proposal in 2010. “We hope the entire House acts quickly to pass our bill without amendment,” said Leach's Chief of Staff Steve Hoenstine.
Wednesday, November 18, 2015
I am giving a lecture this afternoon to a local bar association about the state of marijana reform in Ohio and throughout the United States as of Fall 2015. Helpfully, this recent article from BloombergBNA provides a useful national overview with a number of state-level specifics. The piece is titled "Marijuana in America, 2015: A Survey of Federal And States' Responses to Marijuana Legalization and Taxation," and I recommend it for those looking to get up to speed on a lot of the legal and tax basics ASAP.
November 18, 2015 in Medical Marijuana Commentary and Debate, Medical Marijuana State Laws and Reforms, Recreational Marijuana Commentary and Debate, Recreational Marijuana State Laws and Reforms, Taxation information and issues | Permalink | Comments (0)
Saturday, November 7, 2015
The question in the title of this post is prompted by this interesting Baltimore Sun article headlined "Maryland's nascent medical marijuana industry already booming." The article suggests a number of reasons why the Old Line State could and should be the new hot state to watch in the marijuana reform movement. Here are excerpts:
More than 350 applicants for licenses to grow, process or dispense medical marijuana were filed with the state's Medical Cannabis Commission by Friday evening's deadline as entrepreneurs try to get in at the ground floor of the newest pot market. The applications cover every county in the state. "It's very busy, and we're very excited," said Dr. Paul Davies, the commission's chairman. "There's an awful lot of excitement buzzing around."
State officials said they had counted only some of the applications received. Already, they have processed nearly three times more applications than there are grower licenses available and at least twice as many dispensary applications than they can award.
The huge demand is typical of a new medical marijuana market, said Troy Dayton, CEO of ArcView, a cannabis industry research firm. Apart from the District of Columbia, Maryland is the first jurisdiction south of the Mason-Dixon line that has a medical marijuana industry, he noted....
"The biggest opportunity in the cannabis industry is the opportunity to be a limited license holder in a state that is likely to expand," Dayton said. "It makes a lot of sense that people would put a lot of time and resources into their applications and really swing for fences." And because Maryland set up its industry to award licenses on a merit-based system with high fees to apply, Dayton said, it is likely that the businesses that ultimately win licenses will be successful. "You have people really vested in the success of that effort," he said. "And they have a protected market. They're guaranteed a flow of customers."...
Maryland's medical marijuana program has stirred much interest in the industry, said Taylor West, deputy director at the National Cannabis Industry Association. Not only are there few medical marijuana programs on the East Coast, she said, but Maryland's approach to treating a broad range of conditions and awarding a fair number of licenses makes it an attractive place to invest. "This is a brand-new market where there really isn't an established set of businesses there," West said. "So getting in at the ground floor, treating patients and building a reputation has a lot of value."
The breadth of Maryland's medical marijuana program attracted Dr. Greg Daniel and his associates to the state. They plan to build what he calls a "seed-to-sale" operation that grows the marijuana, processes it and then sells it at a dispensary. Daniel said he has talked to officials in Easton about converting an old Black & Decker factory into a growing and processing plant, and he applied to operate a dispensary near Baltimore-Washington International Thurgood Marshall Airport. The total cost to build the operation would be about $10 million.
For more than a decade, Daniel ran a doctor-staffing business before getting into the medical marijuana industry. He said he narrowly missed the cutoff to be awarded one of the few licenses available in New York, where he is based, but sees a bigger potential market in Maryland because of the way the program is set up. "We could be very successful here," said Daniel. "The number of patients that we would be able to treat would be greater in the Maryland marketplace."
In 2013, Maryland lawmakers approved a medical marijuana program that relied on academic institutions to distribute the drug, whose sale is prohibited under federal law. No university volunteered to participate, so the legislature retooled the program in 2014. The program authorizes physicians in the state to recommend the drug for a specific set of conditions, with 15 growers and as many as 94 dispensaries to supply it.
The Maryland Medical Cannabis Commission spent months crafting regulations on how to implement the law, and even longer developing the complicated application that stretches more than 60 pages. Most of the questions require an essay answer, plus proof that the applicant can pay for the operation. The commission plans to have an independent third party review and score all of the applications — with names of applicants redacted — to determine which ones make the first cut.
The commission came under fire last year for setting some of the highest fees in the medical marijuana industry, charging $125,000 to growers for a two-year license and $40,000 for a dispensary. But the cost apparently did not scare off many applicants.
Tony Toskov said he became interested in the business because his wife suffers from migraines and he hopes medical marijuana might alleviate her symptoms. "I hope everyone's doing it for the right reasons," said Toskov, a restaurateur who owns several Anne Arundel County locales and has applied to operate a dispensary in Baltimore, Washington or Anne Arundel. "It's not a pot store; you're getting into the medical business."
November 7, 2015 in History of Marijuana Laws in the United States, Medical community perspectives, Medical Marijuana Commentary and Debate, Medical Marijuana State Laws and Reforms | Permalink | Comments (1)
Wednesday, November 4, 2015
I am pleased and intrigued to see from this local Ohio article reporting reactions to the overwhelming defeat of a controversial recreation marijuana reform ballot proposal that some important Ohio legislators are now talking about considering moving forward with medical marijuana reform in the state. Here are the encouraging quotes for those interesting in medical marijuana reform in the Buckeye State:
Although Issue 3 was handily defeated, the debate and conversations about the issue have convinced House Speaker Cliff Rosenberg, R-Clarksville, and other state lawmakers who were staunchly opposed to legalization to now say it may be time to move ahead with medical marijuana. “After going through this process, myself and many of my colleagues realize there’s tremendous support for medical marijuana and something we should have a bigger discussion about,” said Rep. Ryan Smith, R-Bidwell, a leader in the House.
That could be in the form of a pilot program or some other narrowly written legislation, Smith said. He noted that Rep. Wes Retherford, R-Hamilton, already has proposed a medical marijuana bill. “In talking to people, it was surprising to me how many said they support medical marijuana,” Smith said. “We obviously want to help the parents with children that are ill and the elderly that are suffering. We just want to make sure the scientists tell us it will help and we write it in a responsible way.”
Monday, October 19, 2015
The title of this post is the title of this effective piece from Stateline, the news service of the Pew Charitable Trusts that provides reporting and analysis on trends in state policy. Here is an excerpt:
Montana is among several vanguard states whose voters eagerly legalized medical cannabis by passing broad ballot initiatives as many as 19 years ago, but left lawmakers struggling to regulate an industry that grew quickly with few rules.
Today, states like California, Montana and Michigan are still attempting to clean up their laws with bills that would develop licensing systems for growers, create a fee structure for providers and product, or legalize all marijuana use.
It’s a legislative and regulatory pitfall that lawmakers warn other states they could face as public demand for legal medical and recreational marijuana grows, and more states allow it.
Maryland opened the door to medical use last year, and Georgia, Oklahoma, Texas and Wyoming passed laws legalizing access to less-potent medical cannabis products for certain patients this year. At least 20 initiatives to legalize medical or recreational marijuana could be on the ballot in 16 states next year. And in November, voters in Ohio will decide whether recreational marijuana should be legal in that state.
Proponents of using marijuana as medicine say ingesting the drug can ease chronic pain, stimulate appetites for the very ill, soothe nausea caused by cancer treatments and prevent seizures in children with epilepsy. Detractors say the research surrounding medical marijuana isn’t conclusive, the drug poses significant public health risks and those who advocate for it use medical marijuana to trick voters into sanctioning an illegal drug for recreational use....
And unless state lawmakers get ahead of their constituents on legalization, they face a potential regulatory nightmare, said Washington state Sen. Ann Rivers. Rivers, a Republican, should know. Medical marijuana was legalized in Washington by voter initiative in 1998, leaving gaping regulatory holes and hazards that lawmakers like her have spent years trying to fix.
Friday, October 16, 2015
Terrific (wonkish?) blogging at Canna Law Blog about new rules and regulations, especially in California
In part because I have been paying close attention to the marijuana legalization debate playing out in my home state of Ohio, I have not yet had a chance to closely consider or assess the big new medical marijuana laws enacted earlier this month in California. Fortunately, Hilary Bricken is all over this topic (and many others) at the Canna Law Blog. Here are he two recent big posts on the new regime:
Here is an excerpts from how the first of these two lengthy posts gets started:
Governor Brown signed into law the three bills that comprise the California Medical Marijuana Regulation and Safety Act (MMRSA) [which is] big news for California and especially for its medical marijuana operators. These bills mean California will soon be moving away from an unregulated gray marijuana marketplace to a state law regulated medical marijuana regime. These bills mean that California will be getting the “robust regulations” the federal government requires from states for the Department of Justice to be even minimally disengaged from what goes on with cannabis within the state. These bills also mean that California will be entering a new era where the Department of Justice will (hopefully) finally cool its heels in the Golden State.
Wednesday, October 14, 2015
As reported in this Ohio local news piece, headlined "POLL: How Ohio voters really feel about legalizing marijuana," the first ballot-issue-specific polling of Ohio voters indicates fairly significant support for an issue that would legalize both medical and recreational marijuana. Here are the basic details:
Kent State's Survey Research Lab and experts from the Department of Sociology and Department of Political Science in Kent State's College of Arts and Sciences fielded a survey of 500 registered voters in Ohio....
The WKYC/Kent State Poll also asked respondents how they plan to vote after providing them with a bit of information about Issue 2 and Issue 3 using summaries of actual ballot wording from the Ohio Secretary of State website.
54 percent of Ohioans plan to vote yes on Issue 2 (plus or minus 4 percent). 26 percent said they did not know how they would vote....
On Issue 3, 56 percent of Ohioans said they plan to vote yes (plus or minus 4 percent) and only 10 percent said they did not know how they would vote.
That means that, if the election were held today and nearly all registered voters participated, both Issue 2 and Issue 3 would likely pass, leading to a constitutional crisis, since Issue 2 contains a provision that is designed to nullify Issue 3....
Issue 2 would ban amendments that create marijuana monopolies and embed them in Ohio's Constitution. Issue 3 is ResponsibleOhio's plan to legalize recreational and medical marijuana for Ohioans ages 21 and older. It would create 10 growth sites owned by the campaign's investors that would be the exclusive source of commercial marijuana. But if both Issue 2 and 3 pass, there's a good chance the question of which takes precedence could wind up in court....
For Issue 2, partisanship matters relatively little. 57 percent of self-identified Republicans, 53 percent of self-identified Democrats, and 56 percent of self-identified Independents say they will vote yes on Issue 2.
However, for Issue 3, the party divide is wider. 45 percent of self-identified Republicans, 67 percent of self-identified Democrats, and 50 percent of self-identified Independents say they will vote yes on Issue 3.
In the WKYC/Kent State Poll sample of registered voters, about 30 percent are Republicans and 40 percent are Democrats. If turnout is higher among Republicans, it will pull the number of "yes" votes down from the 56 percent that said they would vote "yes" in the WKYC/Kent State Poll.
Age is also only slightly associated with voting on Issue 2. However, age is another important factor in voting on Issue 3. Here the WKYC/Kent State Poll estimates support for Issue 3 goes down about 6 percent for about every 10 years of age. Again, if turnout is low among young people -- and it will be compared to among older registered voters -- it will pull the number of yes votes down from the 56 percent that said they would vote yes in our survey.
In terms of other groups, women, blacks, and Hispanics are less supportive of both Issue 2 and Issue 3 than men and non-Hispanic whites, but the differences are only statistically significant for Issue 2.
October 14, 2015 in Initiative reforms in states, Medical Marijuana State Laws and Reforms, Polling data and results, Recreational Marijuana State Laws and Reforms, Who decides | Permalink | Comments (0)
Thursday, October 8, 2015
The title of this post is the headline of this notable new report from Tom Angell about notable developments on Capitol Hill. Here are the interesting and notable details:
A key Senate leader has included several pieces of good news for marijuana law reform advocates in a package of spending bills intended to keep the government operational for the next fiscal year.
Sen. Thad Cochran (R-MS), chairman of the Appropriations Committee, filed the bills on Tuesday, and they have just been uploaded to Congress’s website. Here’s what the bills’ language will do, if enacted:
* Prevent the Department of Justice and the Drug Enforcement Administration from spending money to interfere with the implementation of state medical marijuana laws. Similar language was enacted last year and is current law.
* Prevent the Department of Justice and the Drug Enforcement Administration from spending money to interfere with the implementation of state industrial hemp research programs. Similar language was enacted last year and is current law.
* Allow doctors with the Department of Veterans Affairs to recommend medical marijuana to military veterans, and prevent the V.A. from denying services to veterans because they are medical marijuana patients in accordance with state law.
* Prevent the federal government from punishing banks for doing business with state-legal marijuana providers.
Each of the provisions above were passed this year with bipartisan votes on the House floor, in the Senate Appropriations Committee or both.
The legislation also removes language from previous years’ spending bills that has prevented Washington, D.C. from spending money to implement a system of legalized and taxed sales of marijuana. If Cochran’s bill is enacted as is, the District of Columbia will be able to move forward with enacting marijuana sales regulations that the mayor and local lawmakers have indicated they support but have been stymied from moving forward with due to ongoing Congressional interference.
The provisions, and the overall spending proposals they are attached to, represent what Cochran believes can pass the Senate. He and other Senate appropriators are currently in negotiations with leadership from the House Appropriations Committee and are expected to arrive at a compromise spending package sometime before government funding under current legislation runs out on December 11.
October 8, 2015 in Business laws and regulatory issues, Federal Marijuana Laws, Policies and Practices, History of Marijuana Laws in the United States, Medical Marijuana State Laws and Reforms, Who decides | Permalink | Comments (0)
Wednesday, October 7, 2015
This local article, headlined "Marijuana legislation calls for DUI study," reports on a notable (and I think very valuable) element of California's recent new law concerning medical marijuana. Here are the details and the context:
Recent legislation awaiting Gov. Jerry Brown’s signature not only seeks to implement a statewide regulatory system on the medical marijuana, but also calls for a study on how law enforcement can better detect stoned drivers.
Nestled within one of the bills — Assembly Bill 266 by Assemblyman Rob Bonta (D-Oakland) — is a sentence that calls for the state to commission the UC San Diego’s Center for Medicinal Cannabis Research to develop a study that identifies how cannabis impacts motor skills. The language was written by Assemblyman Tom Lackey (R-Palmdale), a retired California Highway Patrol sergeant of 28 years who said he was motivated to coauthor the bill to give officers another tool to get impaired drivers off the street and to save lives.
“We’ve done a good job of reducing alcohol DUIs,” he said. “With drug impairment we have a long way to go. I believe this is a pioneering effort to allow that to take place.” Lackey — who made his first visit to Humboldt County on Tuesday along with two other bill authors to call on Gov. Brown to sign the bills — said that the study could provide data that he hopes will result in an improved field sobriety test specifically for marijuana impairment.
The three-bill package known as the “Medical Marijuana Regulation and Safety Act” is currently sitting on Gov. Brown’s desk. If signed, the bills would create a licensing and regulatory scheme for all aspects of the medical marijuana industry including cultivation, distribution, transport, dispensary sales, laboratory testing, environmental protections and storage.
Unlike with alcohol, where a legal blood alcohol concentration has been established, local law enforcement officials say they are currently limited in their methods of detecting drivers under the influence of the marijuana’s main psychoactive component, THC, with no set level of impairment and no easy detection method like a Breathalyzer.
“We do not have a cutoff point where we can say we know they are impaired,” Humboldt County District Attorney Maggie Fleming said. “The proof goes back to whether or not their driving showed they were impaired.” When prosecuting someone for driving under the influence of marijuana, Fleming said evidence usually includes patrol car dash cam videos, testimony by drug recognition experts and observations by a law enforcement officer.
Even if such a level were established, a local defense attorney and several studies state that THC processing by the human body is more complicated than alcohol and other drugs. A former president of the DUI Lawyers Association and current member of National College of DUI Defense, Eureka-based attorney Manny Daskal said some studies have shown that drivers actually exhibited safer driving habits and kept more room between themselves and other drivers to compensate for their impairment, though other studies refute the findings. “Right now the research isn’t there for them to accurately predict when impairment occurs or at what level it occurs,” Daskal said.
Regardless of what type of drug a California Highway Patrol officer suspects a driver is impaired by, Humboldt County CHP Public Information Officer Cy May said they will perform the same field sobriety test. “Usually we’re not sure it’s cannabis,” May said, adding there are certain giveaway signs. Such signs include marijuana odor emanating from the car or driver, bloodshot or dilated eyes, and a higher pulse rate....
Two studies by the National Highway Transportation Safety Administration released in February found that 12.6 percent of surveyed drivers had evidence of marijuana use in their systems — up from 8.6 percent in 2007 — while those driving under the influence of alcohol dropped by one-third in the same time period.
Another study by the administration found that marijuana users were 25 percent more likely to be in a crash than non-marijuana users, but that the increased risk “may be due in part because marijuana users are more likely to be in groups at higher risk of crashes” — such as young men. “When you take all the confounding factors into account there is not much of an indication that marijuana causes an increase of crashing,” Daskal said.
Speaking at Tuesday’s rally in Eureka, Lackey said a September 2015 report by the Rocky Mountain High Drug Trafficking Area showed a 32 percent increase in marijuana-related traffic deaths in Colorado in 2014 — the same year recreational marijuana use became legal — compared to 2013. “We will not stand for that in California,” he said to the crowd.
While these studies state the risk of a crash is much higher when THC impairment is factored in, others — like a 2010 study in the The American Journal on Addictions — state some experimental studies have shown it can have the opposite effect. “Several reviews of driving and simulator studies have concluded that marijuana use by drivers is likely to result in decreased speed and fewer attempts to overtake, as well as increased ‘following distance,’ ” the study states. “The opposite is true of alcohol.”