Cannabis Law Prof Blog

Marijuana breathalyzers may soon revolutionize how law enforcement detects impaired drivers

Proponents for legalizing marijuana often argue that marijuana is safer than alcohol, and thus should be similarly regulated. But opponents have maintained a strong rebuttal: law enforcement is unable to detect with certainty whether people are impaired enough that they cannot safely operate a vehicle. But a company called Hound Labs is currently developing a solution to this problem: a marijuana breathalyzer. Lauren Silverman of Marketplace reports: 

The Hound device is a small, black breathalyzer that has a tube sticking out of it — you blow through it a few times, and... it’s able to analyze and detect the amount of THC in someone’s breath in minutes.

If Hound Labs is successful, this will revolutionize law enforcement's strategy for cracking down on impaired drivers, regardless of whether the state has legalized marijuana in some form. Currently, standard breathalyzers cannot detect marijuana, and urine and blood tests are not sophisticated enough to show whether someone consumed marijuana minutes or weeks ago. Further, results of such tests can take days or weeks to confirm through lab tests.

This current time delay is problematic because law enforcement officers want to prevent actually-stoned people from operating vehicles, not those who may have consumed the drug weeks ago. The Hound product solves this problem by recording the person's current level of THC within minutes. The company explains the effectiveness of this method through research showing "the level of THC in someone's breath rises right after smoking, and then trails off after a few hours."

Although police officers have shown an interest in such a marijuana breathalyzer, some are still concerned because they measure an amount, not a behavior. Sergeant Marc Vincent, a Drug Recognition Expert in Texas, voiced his concerns:

“Just because there’s marijuana [in their breath] — I need to be able to show, prove impairment that they can’t safely operate a vehicle[.]” 

While some legalized states like Colorado and Montana have determined the limit for marijuana impairment as five nanograms of THC in blood, scientists still disagree on what amount indicates someone is too impaired to safely operate a vehicle. This causes a problem for companies like Hound Labs because law enforcement departments are unlikely to purchase marijuana breathalyzers until a reliable measuring-system standard is in place. 

 --Zachary Ford

 

New Yorkers seek to legalize marijuana through a state constitutional convention

Some New York citizens are attempting to hold a state referendum to convene a state constitutional convention. They hope to accomplish state-goals like dismantling campaign finance laws, enacting term limits, and ending gerrymandering. But other supporters are seeking a state constitutional convention for a very different reason: the legalization of adult-use marijuana. Tom Precious of The Buffalo News reports:

Stymied in their efforts to get the Legislature and Gov. Andrew Cuomo to go along with their idea, these advocates see a convention of delegates brought together to consider changes to the constitution as a means to loosen marijuana laws.

It's not an easy sell. Nowhere on the statewide ballot is there any guarantee that any issue, whether it’s marijuana or anti-corruption ideas, would even be considered in a convention…. Recent polls reveal that 49 percent of New Yorkers support adult-use legalization of marijuana, compared to the 47 percent who remain opposed.

This referendum, known as Proposal 1, is seeking support from left-leaning citizens like proponents of Senator Bernie Sanders and Black Lives Matter. Such support is crucial because of the appeal that a constitutional convention could lead to sweeping changes in the law which would create more equal opportunities and treatment for the state's citizens.

Surprisingly, this effort is not inducing the support of pro-legalization groups like the Washington, DC-based Marijuana Policy Project. These groups are hesitant to support Proposal 1 because of their alliances on broader policy agendas with various groups that actively oppose the referendum.

Opponents of Proposal 1 fear the uncertain outcomes that could result from a constitutional convention—the United States last held one in 1787, and it led to the creation of an entirely new constitution. And while voters in New York consider whether to hold a state convention every twenty-years, the last one actually held was in 1968 and produced no changes to the state's constitution. 

Another problem facing proponents of a state constitutional convention involves being badly outspent by their opponents:

[T]he one anti-Proposal 1 group, funded almost exclusively by an array of labor unions, has raised $1.5 million for its campaign to stop the convention. Four main groups backing the convention question have brought in under $400,000.

Meanwhile, pro-legalization supporters have raised less than $150,000 and spent just $9,700 in campaign expenditures since July. Raising money has proven difficult for supporters due to the overwhelming union opposition and the difficulty in convincing potential donors that the marijuana issue would even be decided if a convention was held. 

Labor unions maintain a firm opposition to Proposal 1 because of the possibility that it would strip away hard-won rights, like collective bargaining. Nick Reisman of Spectrum Local News asked New York's AFL-CIO President Mario Cliento his take on Proposal 1:

“With those strong labor protections comes a way of life. We want to be able to protect what we have for ourselves and our families well into the future and that's why the labor movement in this state is so adamantly opposed to a constitutional convention[.]”

While every state that has legalized adult-use marijuana has done so through legislation, some citizens in New York have grown impatient with their state's legislature and thus are pursuing legalization through a different avenue. But this road to legalization contains many uncertainties— the most prevalent being whether the marijuana issue will even be raised if a convention is held.

--Zachary Ford

 

Does the Legalization of Marijuana Actually Increase Property Values?

Despite worries that an increase in dispensaries would decrease the value of the homes nearby, there seems
 to be an opposite effect. Reporting on a recently released study by researchers at University of Wisconsin Madison and California State University Sacramento, Colorado Springs Independent revealed that the prices of homes in Denver increased in 2014 after Colorado’s Amendment 64 was passed, which legalized recreational marijuana:

In particular, the report found that single-family residences within .1 mile[s] of [recreational dispensaries that were newly converted from medical dispensaries] increased in value by over 8 percent more relative to comparable properties farther away (between .1 and .25 mile away) over that year. That’s an average of almost $27,000 in added value, whereas homes more than .1 mile away from a [dispensary] weren’t impacted.

Although great news for Denver, and possibly an incentive for legalization in other states that are debating on whether to legalize the drug, researchers also caution that that the increase in property values could also be due to other factors such as “a surge in housing demand spurred by marijuana-related employment growth, lower crime rates, and additional amenities locat[ed] in close proximity to retail conversions.” Nonetheless, all of these changes were related, at least in part, to Colorado’s legalization of recreational marijuana.

These findings are in stark opposition to concerns voiced by opponents of legalizing marijuana, who have constantly cited increasing crime rates and decreasing property values as an anticipated result of legalization. And while the study was fairly small, another study in 2016 by researchers at the University of Mississippi found similar, positive results. The study found that in municipalities that passed ordinances to allow for the sale of marijuana in response to Colorado’s legalization of recreational marijuana in 2012, those municipalities experienced a 6% increase in housing values on average. Both studies even went as far as to consider retail dispensaries as amenities that could be included in the estimation of property values.

With the increase in the number of states legalizing both medical and recreational marijuana, we will soon be able to determine whether the effect of increasing property values is a trend among these states or only a stroke of luck for Colorado.

--Taylor Wood

Former Regan-Era Official Disagrees with Trump and Sessions’ Stance on Marijuana

 Ever since being appointed by President Trump, Attorney General Jeff Sessions has clearly stated his opposition to the Rohrabacher Medical Marijuana Amendment (RMMA.) Essentially, the RMMA would protect states that have legalized medicinal marijuana from any federal intrusion. However, former Associate Deputy Attorney General Bruce Fein (whom was appointed during the Ronald Regan Administration) has recently voiced his regarding Trump and Session’s hypocrisy.

Fein accuses both Trump and Sessions of hypocrisy for their opposition to the amendment. He points out that Trump promised to “make medical marijuana widely available to patients, and allow states to decide if they want to fully legalize pot or not," while on the campaign trail in 2016. And he notes that as a senator, Sessions repeatedly opposed the federal government intervening in states' rights on issues such as voting rights and immigration, and as Attorney General has instructed the Department of Justice to institute less oversight of local police departments.

In Former Justice Department Official Under Reagan Says Jeff Sessions Is Wrong on Marijuana, writer Joseph Misulonas goes onto critique portions of Fein’s argument.

While Fein makes excellent points in those regards, his op-ed also delves a bit too much into hyperbole. He says that every dollar spent on investigating medical marijuana is a dollar not being spent on national security, which is true. But then he writes, "Every federal dollar expended investigating or prosecuting medical marijuana businesses is a dollar unavailable to detect and prosecute international or home-grown terrorists.  In other words, to oppose the Medical Marijuana Amendment is to provide material assistance to ISIS and other international terrorist organizations."

Unattenuated terrorism arguments aside, Fein’s criticism of the Trump administration seems a bit counterintuitive. Despite Regan’s infamous “Just say No” program and the everlasting war on drugs, it appears former Regan appointees are beginning to turn the corner on their views regarding medical marijuana. More importantly, Trump and Session’s response to such criticism will likely speak volumes on how the Trump administration will view medical marijuana differently from previous GOP-backed administrations.

Las Vegas Dispensaries Struggle to Meet Tourists’ Demand

Las Vegas Dispensaries Struggle to Meet Tourists’ Demand

              Marijuana dispensaries for adult use have been operating throughout Nevada since July 1rst of this year. According to the Nevada Department of taxation, Marijuana sales have generated over $3.6 million in taxes during July month alone. Tax officials estimate that Nevada can generate up to $120 million in revenue by July of 2019.  As expected, the immense tourism industry in Nevada has largely played a role in the massive economic success surrounding the legalization of adult use. However, with success comes new problems.

The biggest challenge many dispensaries are facing right now is a supply shortage. Dispensary employees are essentially waiting for marijuana plants to grow, so they can re-stock their shelves with fresh product.

According to Stacy Castillo, the General Operation Manager at MYNT Cannabis dispensaries:

"A lot of companies are having an issue with just being able to create production products because there's not a lot of source flower out there; so a lot of companies are moving in the direction of creating more square footage so they can create more grow space and creating more product; so that's why if we do experience any kind of delay in product it's because we're waiting for the product to be made."

              But never fear, hopeful Nevada tourists! According to 3 Months into Recreational Marijuana Sales, Nevada Dispensaries Experience Pot Shortages by Olivia DeGennaro, there have been no reports of any Nevada-based dispensaries completely running out of marijuana and marijuana derivatives. Rather, dispensaries have been reported to have run out of select products. An additional problem Nevada-based dispensaries face in meeting demand is the legal battle of the distribution right of products intended for adult use. As the adult use market continues to thrive thanks to the tourism industry, representatives from established cannabis business like Castillo will continue to push for fully integrated dispensaries. By allowing full integration, dispensaries will be able to distribute marijuana products in a more cost-effective manner. In theory, these savings will be passed on to consumer (mainly tourists) which will thus continue to give Nevada a competitive edge in the tourism industry.

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Nevada sold $27 million dollars worth of weed in the first month it was legal in the state

Atlanta Unanimously Votes to Decriminalize Marijuana Possession

Atlanta has joined a host of cities and states throughout the country which have drastically reduced the penalties for marijuana possession that the federal government established decades ago. Atlanta's unanimous decision to decriminalize marijuana possession has inspired legalization advocates nationwide due to its breaking away from both the federal government and the state its located in. Carl Willis of WSB-TV reports the impact of Atlanta's new law:

The current law allows for a penalty of up to $1,000 and up to six months in jail for anyone caught in possession of less than 1 ounce of marijuana. The new legislation would lower that to just a $75 ticket and no jail time.

Councilman Kwanza Hall proposed this legislation during his current run for Atlanta's mayor. State Senator Vincent Fort, another candidate for mayor, also supported Hall's decriminalization efforts. They have both stated their motivation behind their efforts involves how the former law unfairly punished African-Americans.

Citing studies that show whites and blacks use marijuana at virtually the same rate, they reveal that 92 percent of Atlanta's arrests for marijuana possession under an ounce are African-American. 

Stanley Atkins, an Atlanta citizen, supports the new law because a marijuana arrest as a teenager caused him to lose his employment. Atkins explains how the former law ruined lives:

"I have associates who have completely lost jobs. They've lost careers. I know students that have lost scholarships," Atkins said. "That cancels an internship, which later on cancels a potential job opening."

Opponents of the ordinance fear that removing jail time from marijuana possession offenses will be a disservice to young people because "it could encourage them to take more risks with marijuana, which some consider to be a gateway to harder drugs."

Another worry stems from increased driving fatalities. Police believe this law will "contribute to an increased possibility of folks driving under the influence of marijuana."

While this may be a big step towards Georgia pursuing similar laws statewide, the new city ordinance does not supersede state law. Thus, Georgia could withhold funding or send in state police to compel Atlanta to adhere to its state's law, if it so chooses.

Alternatively, Atlanta's Chief of Police could ignore the ordinance and continue making marijuana possession arrests. However, State Senator Hall believes this is an unlikely outcome due to police desiring stronger community relations. And when a community unanimously passes such legislation, Atlanta's police may find itself reluctant to go against the public's wishes.

 

--Zachary Ford

 

Will Hemp Soon be Excluded from the Controlled Substances Act?

Will 2017 be the year for hemp? Congress may open up the doors to the cultivation of hemp in the United States very soon, according to independent news provider Truthout who reported that:

Industry advocates have spent years lobbying Congress for a bill which would completely legalize industrial hemp and remove it from Drug Enforcement Agency oversight and interference. Though deeply flawed in its current form, there's hope that the Industrial Hemp Farming Act, currently making its way through Congress, could be an important step in that direction.

Although the Farm Bill of 2014 allowed the cultivation of hemp to resume for the first time since the early 1900s, the bill was very narrow in that it only legalized the growth of industrial hemp for purposes of research and development and only in states that regulated the crop. Currently, there is little clarity on what is considered to be Farm Bill compliant, in part due to the bill’s conflicts with the Controlled Substances Act (CSA). Furthermore, the bill is set to sunset in 2018 and there is no guarantee that the new bill will include the same provisions that narrowly allow for the cultivation of hemp. If passed, the recently proposed Industrial Hemp Farming Act of 2017 would make these issues moot.

Under the proposed Act, industrial hemp would be specifically excluded from the definition of marihuana under the CSA. Explicit exclusion of hemp from the CSA would allow cultivators to grow the crop without worrying whether they were completely compliant with the DEA requirements for growing the plant because hemp would then be out of the DEA’s purview. Permitting nation-wide cultivation would allow the U.S. to cash in on the cash crop. Even the Congressional Research Service (CRS) has referred to hemp as an agricultural commodity. A CRS report issued in March of this year estimated that the U.S. spent over $78 million in 2015 importing hemp and hemp products. Given the various goods that hemp can be used to create, cultivation of the crop in the U.S. could prove to be very profitable if the country can just get past the legislative hurdles.

 

--Taylor Wood