EDITOR’S NOTE: George Selby is a second-year law student at Vermont Law School who favors the reform of U.S. drug policy. George was president of his college chapter of Students for Sensible Drug Policy, and is a member of the VLS Criminal Law Society.  His summary of the Washington and Colorado legalization initiatives is posted below. George’s facts are correct; his views are his own. NarcoLaw is committed to presenting all sides of the legalization debate, but does not currently favor marijuana legalization. (Of course, views evolve, so stay tuned to see if we change our thinking on this point).

By George Selby

Washington and Colorado voters have spoken, and as it stands right now local authorities in those states will no longer be enforcing marijuana prohibition. However, critics of the legalization initiatives might take comfort in the strict regulations that still apply to the plant under the new laws, and some marijuana proponents might not feel like celebrating just yet.

Washington

Seattle Police have preemptively released “A Guide to Legal Marijuana Use” before they are bogged down with FAQs. The guide outlines how that police department interprets Initiative 502, the Washington ballot initiative that legalized personal use of marijuana.  Initiative 502 states that persons over 21 may legally possess and transport up to an ounce of dried marijuana (for smoking), a pound of solid marijuana-infused product (for eating), and 72 ounces of liquid marijuana-infused product (cannabis oil, lotion, tincture).  Significantly, the SPD’s Guide instructs police officers that the smell of marijuana alone will no longer be enough for probable cause to search a vehicle. So, even if a police dog smells your legalized ounce of weed in your trunk, the officers will still need to have probable cause to believe that you are violating state law — such as transporting more than one ounce of marijuana or driving under the influence of drugs — before they can search you.

What is still illegal in Washington? Persons under 21 found using or possessing marijuana may still be prosecuted. Until the State Liquor Board finalizes regulations, which according to Initiative 502 must take place no later than Dec. 1, 2013, it is also still illegal to grow or distribute marijuana, so you cannot give it or sell it to a friend. When the regulations are finalized, it will be possible to obtain a license to grow and sell pot in a manner similar to alcohol. Public use of marijuana is now a ticketable offense, similar to holding an open container of alcohol.

Medical Marijuana users oppose one big detail of Initiative 502: a new five-nanogram/mL limit of THC in an over-21-year-old driver’s blood, and a strict 0.00 nanogram/mL limit in an under-21-year-old driver’s blood.  Now, if police have probable cause to believe that a driver is under the influence of marijuana, they may be able to obtain a warrant for a professionally administered blood test.  The critique of the five-nanogram limit system is based on the argument that it is impossible for anyone to know what their approximate blood THC content is, because each user has a different tolerance and each marijuana plant has different THC strengths. A medical marijuana patient who smokes everyday may not feel high at all but be above the legal limit, while a novice smoker may be highly impaired but well under the legal limit.

Colorado

Compared to Washington legalization proponents, marijuana enthusiasts in Colorado have a bit more to be thankful for this holiday season, as some may legally use a marijuana bush as their Christmas tree this year. With Amendment 64’s passage, Colorodo residents may now grow six marijuana plants in their homes, three of them being fully mature. The plants must be locked up and kept away from children. Similar to those in Washington, people in Colorado over 21 may now “[p]ossess, use, display, purchase, or transport marijuana accessories or an ounce or less of marijuana.” Unlike in Washington, Colorado’s law allows adults to give away marijuana to each other, as long as they don’t get paid.

In Colorado, the marijuana rules have not changed for minors, for whom possession and personal use is still illegal. Also, selling marijuana is still prohibited until licensing and other regulations are finalized by the Department of Revenue, which is scheduled to take place before July 1, 2013. The DUI law has not changed, either. The writers of Amendment 64 purposely left a blood nanogram THC limit out of their new law.

One group may be unexpected beneficiaries of Amendment 64: hemp farmers. Although Americans may buy imported hemp products, it is illegal for U.S. farmers to grow industrial hemp. But, Amendment 64 states that “not later than July 1, 2014, the General Assembly shall enact legislation governing the cultivation, processing and sale of industrial hemp.” This could mean the Colorado farmers will have a monopoly over all the hemp grown in the U.S. This hemp could be sold and made into clothes, rope, paper, oil, and hemp seed based foods.

Stay tuned to NarcoLaw for more on these state legalization initiatives as the story unfolds.