Tuesday, October 30, 2018
Every U.S. state that shares a border with Texas has passed legislation to legalize medical marijuana -- so what does that mean for the Lone Star State?
I recently had a chance to talk to one of the lawyers on the front lines of that issue, Daniel Mehler, of Dallas's Roper & Mehler. Mehler, a former Coloradan, decided to become a lawyer when Colorado began moving towards legalizing medical marijuana. He planned to help companies start up in the industry. At graduation, Mehler found that the Colorado legal market had plenty of big names focusing on marijuana. So, not wanting to work long hours for little pay with one of those law offices, he moved to Texas, a business-friendly state, and here he waits, gaining cannabis expertise, ready for the day that Texas jumps on to the legal marijuana train trudging through the country.
Here, the self-proclaimed "dopest lawyer in town" talks about his front-row seat to what's happening.
Ashley Goldman: Have the numbers of citations and arrests for possession of marijuana increased as the bordering states have legalized medical marijuana?
Daniel Mehler: I'll tell you, in the Panhandle, there's been an absolute explosion of felonies, penalty group two felonies, involving THC concentrates and edibles. Those have just rapidly multiplied. While down in Austin, and obviously you’ve seen it in Dallas, as well San Antonio and Houston, they've moved in the complete opposite direction with small cannabis offenses–decriminalization. A Houston district attorney ran on a legalization platform and got elected. They don't even prosecute misdemeanor pot anymore.
AG: So, it is more the state-border cities that are having problems?
DM: You see it in West Texas. I wouldn't say they're having a problem. I think cannabis has always been there, there's just a massive flood of concentrates moving in through all of the [state] border towns. The border counties–those poor, rural districts–and those out in West Texas jump all over it as a profit center. They see an opportunity to arrest people for a felony and get them on several years of probation or to charge them a steep fine for an alternative offer, some $5,000–7000 for a pre-trial diversion program. And people are scared to go into the penitentiary. I'm sure you know from your class, but lots of people don’t realize that 4 to 400 grams is a second-degree felony, so all of a sudden, those gummy bears are really serious crimes.
AG: So, Colorado’s legalization of recreational correlates to additional arrests here in Texas, versus other border states that require a medical card or other identification?
DM: Absolutely. It'd be purely speculative, but I would say that with Oklahoma’s move into the medical marijuana space, the arrests will continue to rise. Oklahoma will have one of the most wide-open medical policies in the country, a very unregulated market. They've granted 1100 business licenses and I would expect that the amount of felonies in the DFW area is about skyrocket. I think that you're going to see massive federal prosecutors in the Metroplex. You know, they’re 45 minutes from the border. People will be able to buy that shit easily. I would expect that you'll see people that have been involved and moving cannabis into Texas relocating just across the border in Oklahoma and Oklahoma become a massive source whenever it's in the game.
AG: You mentioned decriminalization of marijuana in most of the major urban areas in Texas. Do you think that with the other two border states’ [Oklahoma and Louisiana] medical markets opening up in the next few months that the decriminalization might shift a little and they may not be as lenient, especially in the DFW area?
DM: No. I think everyone recognizes that with flower, nobody gives a shit in 2018. It’s become increasingly difficult to seat the jury anywhere in the state and actually convict people on simple pot charges. In December 2016, in a San Antonio, Bexar County court, we got the first low-THC cannabis jury instruction for a Texas case. We got a not guilty in about five minutes, and not because it was about low-THC cannabis, but the jury just didn’t care. We gave them a way to acquit and they did. So, I don't think we're going to see any shift. Where the problem is, is that people don't realize that a cookie is a second-degree felony; that vape pen is a state jail felony. These aren’t simple possession charges. People don't understand that cannabis products are treated differently than cannabis flower.
AG: Maybe you could explain that a little further, it is because the charge is based on the weight of the product?
DM: When THC is separate from the flower, it’s a charge under a separate code section. It starts as a penalty group two controlled substance. So as a result, adulterant dilutants, that is, the cookie, the entire weight of the cookie, not just the cannabis, get weighed for the charge. The actual gummy bears become the entire weight, not just the amount of the THC. Where it's really bad actually is in the cannabis-infused drinks. That 12-ounce soda only has 30 milligrams of cannabinoids, but the person ends up getting charged for 12 ounces of THC concentrate–that gets you to 400+ grams, so a first-degree felony.
AG: So that's definitely something that people who are wanting to risk it and bring it across the border need to keep in mind.
DM: It's something they need to keep in mind, but let's not kid ourselves, I don’t how attuned you are to the black market in Dallas, but that’s the risk premium. That makes that $8 gram of shatter (aka wax, dabs) in Denver worth $50.00 on the street in Dallas.
AG: So, there is a large black market for some of the other products, besides the flower?
DM: There’s a massive black market. It would it be purely speculative, but I would say hundreds of millions of dollars just in DFW alone in the concentrate market. I mean you can get an ounce in Colorado recreationally for about $300, take it to Dallas, and sell it for $1,400 if you sell it as 28 individual grams. With that profit gradient, you’re never going to stop people from doing that. And the reality of it is, an ounce of concentrate is small and relatively easy to conceal.
AG: Is Texas fighting a losing battle in trying to keep “legal” marijuana out?
DM: Absolutely. The reality of it is, the cannabis is already here but the Texas money is going out of state. Unfortunately, it's going out of state for black market channels. Texas consumers statistically consume more weed than anybody else and that's not going to change. What we see is quality continues to increase. South Texas used to be dominated by imported Mexican brick schwag weed [i.e., low-quality marijuana usually dry and brown]; it effectively doesn't even exist anymore. As prices have plummeted in Colorado, you see commensurate price declines in Texas on the flower side. With the concentrates, because of the risk premium with the felony prosecution, those prices have really stayed pretty steady. But as prices of flower have plummeted to where you can buy it at $90.00 an ounce in Denver, where it used to be $350.00 an ounce for good flower in Dallas, you can now pay for airfare and go buy your own for that price. Now prices have plummeted and Texas is awash with California, Colorado, and Oregon grown cannabis.
AG: What about DWI or DUI Charges? Are you seeing increased prosecution for individuals accused of driving high? Is there any difference based on region?
DM: There are pockets in the state with increased prosecutions, like up in Wise County. They seem to ask everybody that they arrest with marijuana coming down [Highway] 287 when the last time they smoked was. We're seeing a spike in prosecutions for DWI for marijuana. The problem with DWI on marijuana is there's no science to back any of it up, whereas, there's actually validated science that alcohol impacts everybody the same way. Everybody will exhibit the same physical manifestations of intoxication at a given level of alcohol in their system. Marijuana doesn't work the same. A casual smoker, consuming the same amount of THC, will get a lot more intoxicated than an everyday smoker, smoking the exact same product. Also, when you get into measuring intoxication there is a problem in that physical manifestations are different based level of metabolites. The only thing we can test in the blood to get an actual [measurement of cannabinoids in someone’s system] are metabolites that are pharmacologically inactive. The science of THC shows that peak intoxication happens literally just minutes after your last hit if you're smoking it.
AG: So, before it does get metabolized and stored in fat cells or whatever else?
DM: Yeah. In Colorado, they have started studying the link between metabolites and impairment, for instance, a five nanogram per liter of blood per se limit. Well, the vast majority of your medical cannabis users in Colorado are already above that when they wake up in the morning before they even spark their first flame.
AG: That seems like one of the major downfalls of trying to have any enforcement, but a really good opportunity for scientists to get in there and figure out a way to measure it.
DM: The National Highway Transportation Safety Administration has already funded studies. You're seeing a move in that direction. They want to validate [the science] so they can prosecute. But then, there's actually a study that said marijuana smokers are less of a threat than alcohol users because marijuana smokers are actually cognizant of their impairment and take compensatory measures. As a result. Generally, stoners don't get emboldened by being stoned.
Continued at [link to part 2]