PORT TOWNSEND — Law enforcement officials are wrestling with the implications of newly approved statewide Initiative 502, which on Dec. 6 legalizes possession of up to an ounce of marijuana — while possession of any amount remains illegal under federal law.
The measure, approved by voters in Tuesday’s general election, including in Jefferson County, also authorizes the state Liquor Control Board to set up a system to license and regulate the production, processing and sale of the drug by Dec. 1, 2013, in Washington state, which already allows medical marijuana — which is also illegal under federal law.
The federal government is “the elephant in the room,” Port Townsend Police Chief Conner Daily said Friday.
“From all the history lessons we had, we’ve been told over the years that local or state governments can make federal laws more restrictive, but they can’t make federal laws less restrictive,” Daily said.
“We’re kind of in a black hole just waiting,” he added.
“We have to wait and see what the feds are going to do.”
The state Liquor Control Board also is waiting to see what the federal government will do.
“Questions remain ahead as we work to implement I-502,” Liquor Control Board spokesman Brian Smith said in a statement.
“Chief among them is the issue that marijuana remains illegal at the federal level.”
The initiative’s passage provided somewhat of a ho-hum moment for North Olympic Peninsula law enforcement officials, who said marijuana arrests are already a low priority.
OPNET, the Olympic Peninsula Narcotics Enforcement Team that covers Clallam and Jefferson counties, has been focusing on harder drugs such as illegal drugs heroin, cocaine and methamphetamine, and pharmaceuticals such as Oxycodone instead of marijuana, “for quite some time,” Field Supervisor Jason Viada said.
Under current state law, possession of under 40 grams of marijuana — 1.4 ounces — is punishable by up to 90 days in jail and a fine of up to $500.
Under federal law, possession of any amount of marijuana is a misdemeanor punishable by a fine of up to six months in jail and a maximum $5,000 fine.
“The Department of Justice’s enforcement of the Controlled Substances Act remains unchanged,” the Department of Justice said in a statement issued by the U.S. Attorney’s Office in Seattle.
“In enacting the Controlled Substances Act, Congress determined that marijuana is a Schedule 1 controlled substance.
“The department is reviewing the ballot initiative here and in other states and has no additional comment at this time.”
Daily said he did not expect an increase of drivers operating vehicles while impaired by marijuana.
“For the most part, I believe people are responsible when they drive,” Daily said.
“They go out of their way to do the right thing — not everyone, but most of the people we deal with.”
County Sheriff Tony Hernandez said law enforcement officers also have drug-recognition expertise that gives them an indication if someone is drug-impaired.
Officers also conduct a field nystagmus test of a person’s eye movements that can indicate drug use if the eyes move in a jerky motion.
“Further tests like a blood draw might come into play,” Hernandez said.
Marijuana-impaired drivers would be prosecuted and sentenced under existing state driving-under-the-influence laws.
The person’s blood would be tested by a medical professional for tetrahydrocannabinol, or THC, the active ingredient in marijuana.
A concentration of above 5 nanograms of THC per milliliter of blood would subject the person to prosecution similar to the 0.08 blood-level concentration for alcohol.
Under I-502, Washington residents who already give their implied consent to be tested for alcohol consumption by acquiring a driver’s license also give implied consent to get blood-tested if they are stopped by an officer who has probable cause for an arrest and reasonable suspicion a driver is impaired, said Seattle lawyer Mark Cooke.
Cooke is the policy advocate for the American Civil Liberties Union of Washington, which endorsed the initiative and lent legal support for its passage.
“After you’ve been arrested via implied consent, you are supposed to consent to a blood draw,” he said.
“If you refuse a blood draw, that’s where a search warrant comes in.”
But how can marijuana smokers act responsibly and know they are impaired by marijuana to the point that they could get into an accident, much less be charged with a DUI?
There’s no measurement such as the four drinks in an hour that, according to www.bloodalcoholcalculator.org, will lift a 160-pound person to an approximately 0.09 blood-alcohol level — and above the legal limit.
New Approach Washington, on its site “Yes on 1-502” (www.newapproachwa.org), details the 5-nanogram limit, estimating, with footnoted studies, that “even heavy marijuana users like medical marijuana patients should have their THC levels drop below 5 ng/mL if they wait a few hours before driving.”
Some of the half-billion dollars annually in revenue that the state Office of Management and Budget estimates would be generated through marijuana, retail and business-and-occupation taxes would be devoted to health care, youth drug prevention and state general fund expenditures — and some would go toward studying the relationship between marijuana use and driving impairment.
“It’s been illegal so long, it’s been hard for people to study it in practical ways,” Cooke said.
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Senior Staff Writer Paul Gottlieb can be reached at 360-452-2345, ext. 5060, or at paul.gottlieb@peninsuladailynews.com.
