I-502(the Marijuana Initiative) Passed! Is Marijuana Legal Now?

Initiative 502, the marijuana reform initiative, was placed on the November 6, 2012 Washington ballot. The initiative passed with 55% of the vote supporting the legalization of marijuana. The passing of I-502 resulted is a landmark change to drug enforcement for the State of Washington and for the Country as a whole. The initiative is the first(along with Colorado) to legalize the recreational use of marijuana.

What Does 502 Allow Under State Law?

It allows for Washington adults 21 and over to legally possess up to 1 ounce of marijuana. 502 also states that specially-licensed Washington farmers will be allowed to grow marijuana which can then be sold in standalone marijuana-only stores operated by private Washington businesses, licensed and regulated by the state Liquor Control Board. Marijuana producers and processors, however, will be prohibited from having any financial interest in retailers. Public display and smoking in bars or other locations where tobacco smoking is prohibited, will not be allowed. Advertising and store locations will be restricted to minimize exposure to people under the age of 21.

When will the New State Laws go into Effect?

Initiative 502 will take effect 30 days after its passage date. This means that under state law it will be legal to possess up to 1 ounce of marijuana on December 6, 2012. However, you still can not smoke marijuana in public and can be cited an infraction for doing so. The state has until Dec. 1, 2013 to establish other key rules surrounding the use of marijuana. This means that despite being able to possess marijuana you can not legally buy it until next year.

Can You Get a DUI for Marijuana?

The answer is yes. The new law for DUI’s involving marijuana use will go into effect Dec. 6, 2012. The DUI law states that anyone (even medical marijuana users) can be cited for a DUI if they are found to have more than 5 nano-grams of THC in their blood. Remember an officer can not require you to submit to a blood test without probable cause.

What About Federal Laws?

The short answer is that Marijuana is still illegal under federal laws. This means that regardless of your compliance with Washington laws you can still be prosecuted for possession, cultivation, or distribution of marijuana.

What are the Federal Laws on Marijuana?

Under the Federal Controlled Substances Act(CSA) marijuana is currently categorized as a Schedule 1 controlled substance. A drug or chemical is classified as Schedule 1 if: “ 1)it has a high potential for abuse; 2)no currently accepted medical use, and 3)lacks accepted safety for use of the drug under medical supervision”. 21 U.S.C. Section 812(b)(1). Under the CSA mere possession of marijuana generally constitutes a misdemeanor and up to one year of imprisonment along with a minimum fine of $1,000. On the other hand, the cultivation or distribution of marijuana, or the possession of marijuana with the intent to distribute, can subject you to a felony, up to five years imprisonment and a fine of up to $250,000. 21 U.S.C. §841(b).

How do Federal Laws affect the State Law?

This is where the legality of Washington’s marijuana law gets a little hazy. The first question is: how can the State make a law which allows citizens to engage in conduct that is illegal under Federal law? The answer is the 10th amendment. Although, the U.S. Supreme Court has established Congress’s constitutional authority to enact the existing federal prohibition on marijuana under the Commerce Clause (decided in Gonzales v. Raich 545 U.S. 1 (2005))the principles of federalism found in the 10th amendment prevent the federal government from mandating that the states actively support or participate in enforcing the federal laws. The 10th Amendment states that “any powers not expressly granted to the federal government in the constitution nor prohibited by it to the states, shall be reserved for the states or the people”. Regulating drug usage within the state is not expressly reserved for the Federal government nor prohibited to the States. Meaning the state can constitutional enact drug enforcement laws that are not as strict as federal drug laws. The result is that marijuana usage is still illegal under federal law, States simply do not have to create laws that makes marijuana illegal as well, nor are state authorities required to enforce federal drug laws. However, the federal government can withhold federal funding from the State by conditioning such funds on the basis that the state enact legislation consistent with the CSA.

What About Preemption?

Even if the federal government is prohibited from mandating that states adopt laws supportive of federal policy, the constitutional doctrine of “preemption” generally prevents states from enacting laws that are inconsistent with federal law. Preemption comes from the “Supremacy Clause” found in Article VI section 2 of the U.S. Constitution. The “Supremacy Clause” states that “the Constitution, the laws of the United States, and all treaties made under the authority of the United States, shall be the supreme law of the land. This means that the federal government, in exercising any of its enumerated constitutional powers, must prevail(preempt) over any conflicting or inconsistent state exercise of power, thus voiding the state law.

Although an argument can be made that Washington’s “state action” (the marijuana law) is in conflict with the federal CSA and thus should be preempted; there are also two argument for why the state law arguably will not be preempted by federal law. First(1st), the state law does not necessarily conflict with federal law as it does not prevent someone from complying with the federal CSA, nor does state law force a person to break federal drug laws. For example, no Washington citizen is forced to possess, cultivate, or distribute marijuana under 502, thus 502 does not directly prevent or conflict with federal enforcement of the CSA. The second(2nd) argument is whether Congress actually intended the CSA to supersede(preempt) state policy. Congress often acts without intent to preempt state policy making or with an intent to preempt state policy on a limited set of issues. Congress may even intend state and federal policies to coexist. In the past courts have not viewed the relationship between state and federal marijuana laws as in conflict. With regard to the CSA specifically, Congress did not intend that the CSA displace all state laws associated with controlled substances. Under the federal (CSA)Controlled Substances Act, section 903 it specifically states:

“No provision of this subchapter shall be construed as indicating an intent on the part of the Congress to occupy the field in which that provision operates, including criminal penalties, to the exclusion of any State law on the same subject matter which would otherwise be within the authority of the State, unless there is a positive conflict between the two”.

The result is that Washington’s Marijuana possession laws arguably will not be preempted on the basis that they conflict with the federal Controlled Substances Act. However, when the State begins licensing and profiting from marijuana production it is very likely that compliance with both state and federal laws will become impossible as they will arguably be in direct conflict with one another. Even if Washington’s legalization of recreational marijuana use survives, legalization under state law does not result in decriminalization under the federal law. This brings us to the final issue: whether the federal government will still attempt to prosecute Washington citizens under federal law?

What will the Federal Government Ultimately Do?

It is not entirely clear yet how the federal government will deal with the states legalization of recreational marijuana use, however, some incite may be gained by looking at the federal governments reaction toward the legalization of medical marijuana.

“Although individuals who previously used medical marijuana in compliance with state law were still in violation of federal law and subject to prosecution by federal authorities at any time, the Obama Administration in 2009 announced an informal policy that suggested federal prosecution in that situation would be unlikely. In an October 19, 2009, memorandum, now known as the Ogden memorandum, Deputy Attorney General David W. Ogden provided guidance to federal prosecutors in states that authorized use of medical marijuana. The memo stated that it was the Dept. of Justice’s desire to make “efficient and rational use of its limited investigative and prosecutorial resources,”. The memorandum also stated that while the “prosecution of significant traffickers of illegal drugs, including marijuana will continue to be a core priority,” federal prosecutors are instructed not to focus federal resources on individuals whose actions are in clear and unambiguous compliance with existing state laws. The memorandum made clear, however, that “such instructions to prosecutors did not preclude investigation or prosecution, even where there is clear and unambiguous compliance with existing state law, in particular circumstances where investigation or prosecution otherwise serves an important federal interest.”

As a result of the 2009 Ogden memorandum many people believed that the federal government simply did not have enough resources to enforce federal drug laws and thus would not attempt to. The states that legalized medical marijuana quickly saw an influx of marijuana dispensaries pop up. In reaction to the growing number of marijuana dispensaries the Dept. of Justice(DOJ) released a second memo in 2011. “The second memorandum clearly communicated that individuals operating or “facilitating” medical marijuana dispensaries, even if operated in compliance with state law, continue to be targets for federal prosecution. As a result, in the last two years we have seen a reported increase in the number of federal DEA raids on dispensaries and marijuana farms and the subsequent prosecutions of those who own and operate marijuana distribution facilities.”

For the time being it remains unclear whether the federal government will allow the state to take part in recreational marijuana production resulting direct opposition to the federal CSA. The federal government has two options: 1) the Department of Justice could turn a blind eye, using Washington and Colorado as testing grounds to potentially legalize marijuana nationwide, or 2) the DOJ could challenge the states, arguing that their marijuana laws are in direct conflict with the CSA and thus should be found void under of the Doctrine of Preemption. The decision will ultimately lie in the hands of the court.