There is a certain popular marijuana website funded by a company that rakes in money facilitating online sex trafficking of minors – I won’t link to it, because pimping little girls is no joke in my town – whose author won’t stop falsely demonizing Washington’s legalization measure, I-502.

That’s fine, this is America and we all enjoy the First Amendment.  But rather than provide a reasonable discussion of the issue, the author has taken to ad hominem attacks against those who disagree.  Most prevalent in his sights are Marc & Jodie Emery, primarily because the Emerys are well-respected activists who openly support I-502 through their very popular Cannabis Culture magazine and website and the Pot.tv live stream.  Marc’s currently serving five years in US prison in Mississippi, supposedly for seed sales, but really for the purpose of derailing the legalization movement.

Whether or not one agrees with I-502, insulting a federal prisoner who’s donated millions to legalization and helped more people cultivate marijuana in North America than any single person and repeatedly calling his spouse a “trophy wife” while bragging in the comments about how much pussy one gets is not furthering an intelligent dialogue.

I bet it sure rakes in the page hits, though. So does tentacle porn and cute videos of kittens.

Since the author is regurgitating most of the points I read in other people’s writing (unsurprisingly), let’s deconstruct his bullet points of how awful Hempfest will be post-I-502 – with actual sections in the language, rather than conjecture and ad hominem attacks:

FALSE. Possession in I-502 is independent of purchase at state stores^[1]. In fact, purchase and possession are independent in current criminal law, as well. I-502 clearly states that possessing an ounce of useable marijuana is not a crime. The term “useable marijuana” does not define where it must be purchased from^[2]. How clear does it need to be? Possession of useable marijuana under an ounce is not a crime, period.

Where people get hung up is “Yeah, but if there’s no legal place to buy it (store), it can’t be a legal ounce!” Wrong. After I-502, if you bought an ounce from a non-store, that’s illegal. Buying non-store weed is a crime. Having it is not. Purchase is different than possession, that’s why there are two separate crimes on the books now for it. I-502 removes the possession part at less than one ounce.

Besides, as the Supreme Court has told us, marijuana is fungible – you can’t tell medical from recreational from illegal from soon-to-be-legal. Nothing in Washington law or I-502 gives police the power to arrest you for not carrying a weed receipt.

EXISTS NOW. How many people have you seen busted for passing a joint at Hempfest currently when cops can now arrest them for two misdemeanors, possession and distribution? OK, so how many will be busted in 2013 when the possession is legal, and in a place where the city attorney already says he won’t prosecute personal possession, and where he and the mayor will have been onstage at Hempfest openly supporting I-502?

EXISTS NOW. First of all, it is very unusual for most of us who do not sell to leave the house with almost an ounce and a half. Second, yes, if we say that one ounce is illegal, over one ounce is not (as it is now) – this is a problem? By god, if I can’t have all the weed I want, nobody gets a legal ounce?

EXISTS NOW. I understand how this might be upsetting to bloggers in their fifties who like to pass joints to minors, but most of us supporting legalization don’t want to see teenagers smoking pot.

Personally, I think a 21-year-old limit like I-502 proposes sucks. If you can smoke cigarettes and join the Army, we should be able to trust you to handle a joint, or a beer, for that matter. However, we all know that an 18-year-old limit for pot will not pass politically so long as 21 is the age for booze.

The scare here is that most people who smoke pot (over a third) are aged 18-25. Many first smoke pot in college. And woe to the 21-year-old college senior who passes the joint to the 20-year-old college junior, he’s committed a crime!

Well, look, if there is going to be an age limit, there is going to be punishment for breaking that age limit, isn’t there? The lesson here for college kids smoking pot is don’t get caught passing joints… just like now! But at least after I-502, the college kid over 21 can go buy and smoke a legal joint!

EXISTS NOW. And right now, when that redneck cop with an attitude about stoners pulls you over, he can arrest you on the spot for possessing even a single gram of marijuana and you will spend a mandatory 24 hours in jail. He can bust you for the pot pipe you used at Hempfest, too. After I-502, he will not be able to bust you for either of those things.

OVERSIMPLIFIED AND EXISTS NOW. If a police officer suspects that you are driving impaired, he can ask you to step out of the car and take a field-sobriety test. If you fail that, he can place you under arrest for suspicion of driving under the influence, at which time he can drive you to a hospital or clinic, and under Washington’s current implied consent law, ask you to submit to a blood draw. If you give a blood sample and it tests positive for ANY active THC, that result will be used in court as very solid evidence to back up your failed field sobriety test. You may refuse to give blood, but if so, your license is suspended immediately and they can still use the failed field sobriety test against you in the forthcoming DUID trial.

What that cop cannot do – and what fear mongering opponents of I-502 want you to think they can do – is see a long-haired hippie in a Volvo plastered with Grateful Dead stickers, pull him over for a busted taillight, and shove a needle in his arm on the spot and forcibly take his blood for some kind of “automatic DUID”.

In other words, a cop getting a blood draw from you is not “easy as pie”^[3].

SCARE MONGERING. I-502 does contain a new provision that defines a per se DUID for anyone testing at greater than five nanograms of active THC per milliliter (5ng/ml) of blood. It is not at all “arbitrary” and there is plenty of scientific evidence^[4] that most casual tokers exhibit increased risk of accident and psychomotor impairment above 5ng/ml.

The problem with that is how much THC is in your blood is a poor indicator of whether all drivers would be impaired at that level. Frequent cannabis consumers, like me, can have residual levels of THC above 5ng/ml well after impairment has faded.

This is where I think many marijuana legalization proponents balk at I-502, understandably so, as we have been fighting per se DUID laws when introduced on their own for years. But understanding the politics of this and the practical application should make any reasonable legalizer support I-502, even if they have to grit their teeth to do so.

Marijuana legalization is never going to pass appealing only to people who smoke pot. It has to pass with conservatives, the elderly, and the religiously devout as well. For a decade now, we’ve said “treat it like alcohol!” Now they are ready to, but they want to know where the breathalyzer is for pot, so we can treat it like alcohol.

We’ve spent a generation changing the cultural perception of drinking and driving. When I was a kid and my alcoholic dad was rolling a vehicle every couple of years, I don’t think he did a day of jail time. He didn’t wreck into anyone else (thank goodness) and driving drunk was just something people reluctantly tolerated. Then M.A.D.D. changed that perception, we got tough new drunk driving laws, which included per se DUID for anyone who blew too high on the breathalyzer (originally 0.10, reduced to 0.08). Other countries also set per se for alcohol that can be as low as 0.05, 0.02, and even zero tolerance!

Yet there are plenty of people who can drive very well at a 0.02, 0.05, 0.08, or even 0.10 and above. Some alcoholics get delirium tremens so bad without alcohol that they are worse drivers when sober. But even if they drive perfectly, they get a DUID charge that sticks because of blood chemistry, not impairment.

So, where is the concern from the anti-I-502 people for all the drinkers out there who get DUIDs they don’t deserve just because they blew over a 0.08?

There is none, because, really, per se DUID laws aren’t about impairment, they are about responsibility. It’s not whether you are fine to drive after drinking three beers; it’s that you irresponsibly reduced your ability to drive well before getting behind the wheel. It’s not that a 0.08 measures how impaired you are (though, in most cases, it does, more on that in a sec), it’s that it measures how recently you’ve been drinking.

Similarly, a >5ng/ml reading for THC in blood doesn’t tell us a whole lot about how impaired you are, but it does tell us you’ve likely smoked pot in the past few hours, in the case of most tokers. And that’s what the general public is afraid of. They don’t care if you’re smoking pot in your house not hurting anyone, but they fear you smoking pot and then (or while) getting behind the wheel.

Unfortunately, we sold the public on the “magic bullet” solution of the breathalyzer for drunks on the road, now they want the same for stoners. It’s not anyone’s fault, as alcohol actually does impair most people in accordance to how much is in their system, and doesn’t show up in the systems of people who haven’t recently used it. It’s completely the opposite of THC.

But politically, it is going to take a whole lot more work to help people understand that pot ain’t booze. Decades of prohibition have instilled in people the idea that pot is dangerous and lack of education forces them to equate it with booze. The best way we could move that work along is to have legal marijuana that can be studied and an example of a state where it is legal and traffic fatalities continue to drop.

The worst political move would be to defeat legalization and have it appear that part of the reason it failed was people who like to smoke pot all day every day were worried about getting DUIs when they drive. As it is now, anti-I-502 Chicken Littles are fostering a growing public perception that stoners want the right to drive high. Do you think the next attempt at legalization to gain significant backing and make the ballot would then tighten down even more on the DUI issue, maybe make it zero tolerance for everyone, not just under 21?

EXISTS NOW. The author writes as if DUID charges for marijuana don’t exist now. Once again, let’s compare what can happen right now vs. post I-502 for the weed smoker leaving Hempfest in his car with less than an ounce of weed on his person:

I most often hear the DUID complain from people who toke all the time and thus have high tolerances and are never below 5ng/ml. If they are afraid of DUID post-I-502, they shouldn’t be driving now, because the risks of steps #1-#10 exist now. If you’re a toker with $15,000 lying around to present some sort of “don’t bust me for DUI I’m a patient” defense in court, then I-502 does negatively impact you at step #11.

But what I want to know is if these frequent cannabis consumers have developed such a tolerance that use of marijuana doesn’t impair their driving, what happened at steps #2, #3, and #4 to make a cop think they were impaired? Yeah, I know, broken taillight, Dead stickers, smell of pot, hates hippies get you pulled over, but that happens now. Yeah, I know, some patients have conditions that make passing “walk the line” tests hard, but that risk exists now. And at step #6, you can refuse the blood test. Yeah, I know, then you automatically lose your license, but aren’t you the one telling us how terrible a DUID conviction is? Certainly an administrative loss of license is better than that, right?

Practically speaking, cops bust potheads because they are paid to do so. Between federal grants to make drug arrests and drug asset forfeitures, it is profitable to go after cannabis consumers. DUIDs do not reap such profits for police.

Or look at it this way – Washington State has had medical marijuana for fourteen years. There are an estimated 100,000 patients in the state. Between them all, they must have driven billions of miles in Washington. Find me ONE toker who went to court for DUID Cannabis only with a failed field sobriety test and a >5ng/ml blood test entered into evidence who then was acquitted or got the charge reduced, and I will apologize to him or her for passing I-502 on behalf of 10,000 tokers who won’t get a misdemeanor possession charge next year.

EXISTS NOW. You want to see 10,000 misdemeanor possession arrests next year because you don’t get to grow… wait a minute… aren’t you a patient who will still retain the right to grow 15 marijuana plants and possess a pound and a half of marijuana after I-502 passes? What are you complaining about?

I’ve said it before: legalization is a journey, not a destination. What the author is confusing is “legalization” with “freedom” – that’s the destination. Yes, in a free state, we’d be able to a) smoke marijuana, b) grow marijuana, and c) face no discrimination for marijuana. But in the process of legalization, you don’t toss a) because you didn’t get b) and c). You get a) and with that right established, you’re in a better position to fight for b) and c). Without a), you’re just a criminal who wants to grow pot. With a), you’re a legal cannabis consumer fighting for the right to grow at home for personal use what the state allows residents to grow for commercial use.

EXISTS NOW (well, not that legal one ounce part). Again, you, as a patient, get twenty-four ounces right now. The rest of us would like at least an ounce to start with.

OH NO! More states might copy a successful blueprint to legalize pot that people other than potheads will vote for! We could end up with states where it is illegal to grow pot (…like every state in America where it is illegal to grow pot, most of them whether you’re a patient or not), where possession of over 40 grams is a felony (…like Oregon, Nevada, North Dakota, Illinois, Missouri, Indiana, Arkansas, Mississippi, South Carolina, Georgia, and Florida (and Minnesota’s 42.5g and North Carolina’s >1.5g are close)), and where a number on a blood test automatically makes you guilty of a DUID (…like Arizona, Utah, Illinois, Iowa, Georgia, Indiana, Michigan, Wisconsin, Pennsylvania, Rhode Island, and Delaware with zero tolerance THC DUID, and Nevada and Ohio, where it’s 2ng/ml, and Montana, where it’s 5ng/ml for patients (but only for charges to be brought, not per se conviction)). Yeah, I’m sure those states will hate the precedent of being able to possess an ounce of weed and buy some from a state-licensed store.

So, wait, there’s a possibility two other states could set a precedent? Like Colorado’s Amendment 20, which allows “only one ounce… REALLY???”  and maintains felonies for growing over three mature plants and possessing over a half-pound away from the home? An amendment that sets up a system of registrations, licensing, and requirements that some of the activists I’ve spoken to in Colorado, not some Canadian prisoner in Mississippi, think are terrible and should be voted against. If these are really superior legalization initiatives, surely they will pass and with greater percentages than I-502, and then the precedent will be set to them, not I-502, so what is the author worried about… that the public might be ready for I-502, but not A-64 and M-80?

The author of the piece just cannot accept that one of his longtime idols in legalization, Marc Emery, is in support of I-502. His continued insults of his hard-working wife Jodie as a “celebrity trophy wife” are evidence of that, as well as slanderous graphics that imply Marc has “sold out” to law enforcement and he and Jodie are willfully trying to fool people into voting for I-502 in exchange for his early release from prison. Such grandiose conspiracy theories are impossible to argue – anything I present will just be evidence that I’m in on the conspiracy, bought off by my lawyer overlords at NORML who desperately want to keep marijuana illegal… except for the inconvenient detail that my employment with NORML ended in May; I’m an independent marijuana blogger now who still supports I-502!

And at my own peril, if his ranting is to be believed, because I drive in Washington State, I am not a medical marijuana patient, and I use cannabis so frequently I doubt my THC in blood is ever below 5ng/ml. I have also driven over 100,000 miles in nine years from my home in Portland to Seattle, Medford, San Francisco, Los Angeles, Boise, and Denver on multiple occasions, in a Jeep with RAD RUS license plates, with NORML or cannabis stickers prominently displayed in the back window, and wearing my trademark hemp potleaf cap and usually some marijuana-themed t-shirt.

In all my driving in the 21^st century, I have been stopped by a cop once. That was for a non-working headlight at dusk in Portland. When that cop was talking to me in my pot cap and pot t-shirt, it is likely he could smell pot on me or my vehicle, as I am around pot almost all the time and the smell lingers. Yet, recognizing that I wasn’t currently impaired and I was driving fine, he gave me a warning and sent me on my way, even though possession of over 28 grams is a felony here (not 40 grams, like Washington).

In 42 years of Drug War, there have been 21 congressional election years where only 24 of the US states have the power to place legalization on the ballot. In those 494 opportunities (Mississippi regained the right in 1992), legalization has made the ballot eight times in just five states, and failed each time. This year is the first year it has made the ballot in Washington, despite many attempts by activists to place much more liberal versions of legalization in front of the voters over the past few years. If it fails, don’t expect the money to come pouring in to place those much more liberal versions on the ballot and expect the people who can marshal money and support proposing even more conservative legalization the next time around, if they bother to spend time and resources on it at all (see: Prop 19 in California), because opposition to I-502 by potheads is dwarfed by opposition to I-502 by public and prohibitionists, reactions to a failed legalization won’t be that it was too conservative for potheads, but that it was too liberal for the public.

Ending prohibition won’t come in one vote; it will take many years and many votes. Voting no on I-502 now means:

And if that’s your stand, that’s your right. But you don’t need to insult drug war prisoners and their wives to make your points.

1. Sec 20(3): The possession, by a person twenty-one years of age or older, of useable marijuana or marijuana-infused products in amounts that do not exceed those set forth in section 15(3) of this act is not a violation of this section, this chapter, or any other provision of Washington state law.

   Sec 15(3): Delivery, distribution, and sale, on the premises of the retail outlet, of any combination of the following amounts of useable marijuana or marijuana-infused product to any person twenty-one years of age or older: (a) One ounce of useable marijuana; (b) Sixteen ounces of marijuana-infused product in solid form; or (c) Seventy-two ounces of marijuana-infused product in liquid form.

   See, these are called “endnotes” and they are referencing actual text of the initiative. This is how intelligent people discuss initiatives, rather than using sexist terms to demean the spouses of imprisoned activists. Sec 15 clearly says that retailers who buy, sell, and deliver are legal if they keep it under 1oz / 16oz / 72oz. Sec 20 clearly says that persons who possess must keep it under the same limits buyers, sellers, and deliverers are subject to. Note the lack of language punishing people for buying marijuana, which, in fact, isn’t even a crime today. It is a crime to sell and a crime to possess, but buying weed isn’t something you can be charged with (it’s unnecessary, because to “buy” you are “possessing”).

   So when that cop at Hempfest sees your half ounce, he can’t bust you for buying it from somewhere other than a store (since he’s not witnessing that) and he can’t bust you for possessing it! ↑

2. Sec 2 (s) “Marijuana” or “marihuana” means all parts of the plant Cannabis, whether growing or not, with a THC concentration greater than 0.3 percent on a dry weight basis; the seeds thereof; the resin extracted from any part of the plant; and every compound, manufacture, salt, derivative, mixture, or preparation of the plant, its seeds or resin. The term does not include the mature stalks of the plant, fiber produced from the stalks, oil or cake made from the seeds of the plant, any other compound, manufacture, salt, derivative, mixture, or preparation of the mature stalks (except the resin extracted therefrom), fiber, oil, or cake, or the sterilized seed of the plant which is incapable of germination.

   (v) “Marijuana-infused products” means products that contain marijuana or marijuana extracts and are intended for human use. The term “marijuana-infused products” does not include useable marijuana.

   (kk): “Useable marijuana” means dried marijuana flowers. The term “useable marijuana” does not include marijuana-infused products. ↑

3. Regardless, pie is hardly easy. After all, if you wish to bake an apple pie from scratch, you must first invent the universe. Sagan, C. (1980) Cosmos. ↑

4. Sewell, R. A., Poling, J., & Sofuoglu, M. (2009). The effect of cannabis compared with alcohol on driving. Am J Addict., 18(3): 185-193. Doi: 10.1080/1055-490902786934; Drummer, O. H., Gerostamoulos, J., Batziris, H., Chu, M., Caplehorn, J., Robertson, M. D., & Swann, P. (2004). The involvement of drugs in drivers killed in Australian road traffic crashes. Accident, Analysis and Prevention, 36(2):239-248 (“Drivers with THC in their blood had a significantly higher likelihood of being culpable than drug-free drivers. For drivers with blood THC concentrations of 5 ng/ml or higher the odds ratio was greater and more statistically significant”). doi: 10.1016/S0001-4575(02)00153-7. ↑

5. I debated Kevin Sabet in March. He was the right-hand man – senior adviser – to Drug Czar Kerlikowske. One of the Drug Czar’s big policy goals is imposition of per se DUID laws for marijuana. So I asked Kevin, since I-502 has a per se DUID, does the Drug Czar support it? He could only laugh at me and say, “The ONDCP opposes marijuana legalization in any form.” ↑