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Washington Marijuana Initiative Gains Support

Initiative 502, the Washington state initiative to tax and regulate marijuana, is gaining both financial and political support. In the past week, the effort has picked up some important endorsements from former law enforcement figures, and a good sized cash contribution that will invigorate its signature-gathering efforts.

The initiative is sponsored by New Approach Washington, which hopes to gather sufficient signatures to put the measure before the legislature in January. If the legislature fails to approve it, it would then go before voters in November 2012.

In a joint statement that appeared as an op-ed in the Seattle Times, former US Attorney for Western Washington Katrina Pflaumer, former Seattle deputy mayor and municipal court Judge Anne Levinson, and retired state Superior Court Judge Robert Alsdorf announced they were endorsing I-502. Another former US Attorney for Western Washington, John McKay, endorsed the effort earlier.

"We have not only observed but also enforced marijuana laws at the federal, state, and local levels," wrote the trio of legal establishment figures. "We ask that these laws be changed. It is time for a different, more effective approach. That's why we endorse Initiative 502, which would decriminalize marijuana in our state and make a long-overdue change for the better in public policy."

Regulating marijuana would allow state and local governments to refocus criminal justice system resources on more serious offenses and would generate hundreds of millions of dollars in tax revenues, the trio argued. It would also restore respect for law enforcement and "decrease the disproportionate criminalization of people of color who have historically been harmed most by the existing laws," they wrote.

On Monday, yet another former law enforcement figure climbed aboard. Charles Mandigo, former Special Agent in Charge of the Seattle FBI office, issued a statement announcing he was endorsing the initiative, if not the drug itself.

"I do not support or condone the use of marijuana. Rather, I think it is time for us to try a regulatory approach that frees criminal justice resources for more appropriate priorities and strikes a better cost-benefit balance than the strategy we've been pursuing for the past 40 years," he said in the statement.

"It concerns me a great deal that our minority communities are over-represented among marijuana defendants, and that 40,000 have died in Mexico in the past four years due to fighting over control of drug trafficking to the United States, a significant part of which involves marijuana," the 27-year FBI veteran added.

The new law enforcement endorsements come as the campaign is enjoying a late surge in financial support. Campaign director Alison Holcomb reported at the beginning of the month that it had just received a $100,000 donation from philanthropist Harriett Bullitt, had earlier received $50,000 from Progressive Insurance chairman Peter Lewis, and expected Lewis to kick in another $200,000 this month.

New Approach Washington has already collected more than 180,000 of the 241,000 valid signatures in needs to go before the legislature. It has until year's end to collect the rest, and the big name endorsements and donations are putting that goal within reach.

Not that everyone in the Washington state marijuana community is happy about that. The folks at Sensible Washington, who were twice unable to raise the money to gather enough signatures to make the ballot for their marijuana prohibition repeal initiative, are not supporting I-502, in part because it contains "a bitter pill" imposing per se drugged driving limits.

Sensible Washington is not alone in that criticism. Segments of the state's medical marijuana community also worry that the initiative's drugged driving provision could end up penalizing them.

Dr. Gil Mobley, who runs a Federal Way clinic catering to medical-marijuana patients, told the Seattle Times he recently tested several patients and found they passed cognitive tests even with THC concentrations of up to 47 nanograms. Nearly four hours after one patient medicated, they still tested at 6 nanograms. The initiative would set the per se level at 5 nanograms.

"I told them they'd be legally unable to drive if this law passes," said Mobley. "It's philosophically, morally and legally wrong."

And Nora Callahan of the November Coalition, a drug reform group that concentrates on drug war prisoners is also unenthusiastic about I-502. It would be "continuing prohibition," she said. "We want a law for the people. I don't know if this law cuts it. But we know there is money behind it."

I-502 supporters have countered the criticisms, saying the drugged driving provision would be rarely used and that signs of impairment would first have to be evident. They also point to states with per se drugged driving laws, noting there has not been a rash of prosecutions in them. And they argue that if an initiative is going to have a chance with voters concerned about the prospect of highways filled with stoned drivers, it must be pragmatic and address those fears.

New Approach Washington has created a fact sheet on driving under the influence of THC in a bid to defend the drugged driving provision. It notes that Washington already has a per se DUI law for alcohol, and that its proposed per se marijuana-impaired driving level of 5 nanograms of THC per millileter of whole blood is both "analagous" to the per se DUI law for alcohol and supported by existing science.

"I-502 does not change the fact that officers still must have probable cause for arrest and reasonable grounds to believe a driver is impaired before requiring a blood or breath test," the fact sheet says, addressing concerns that large numbers of drivers could be charged under the provision. "Nor does it change the fact that blood tests can only be administered by medical professionals."

Pot activist-turned-journalist Dominic Holden sharply criticized the friendly fire against I-502 coming from within the movement. In a column published in the Seattle Stranger, Holden wrote, "[I]t's dishonest to declare this this measure will subject people to more blood testing or result in a change of policing protocol. If voters pass I-502, 02, officers would be held to the same standards as they are today: They would still require probable cause to stop a car, evidence of driver impairment, and any tests would have to be conducted by a medical professional (typically at a medical clinic or an ER). Those are the standards now, they wouldn't change, and we hardly ever see those consequences for medical marijuana patients now because they aren't impaired and cops don't have probable cause to stop their vehicles. If cops didn't have probable cause or evidence of impairment, but took action anyway, a defense attorney could move to have the whole thing tossed out -- just like today."

Holden also cited polling for the campaign finding the initiative winning with the provision vs. losing badly without it. According the polling, Holden wrote, 62% of respondents were more likely to vote for an initiative with that provision, vs. 11% less likely.

New Approach Washington may not have succeeded in uniting all of the state's marijuana movement behind it, but it is getting enough big names and big bucks to have a very good shot at making the signature-gathering threshold. And if the campaigners and their polling are correct, they will then have a good shot at victory at the polling booth in November 2012 -- if the legislature doesn't approve it first.

United States

Activist Dana Beal Sentenced, Suffers Heart Attack

Iconic activist Dana Beal suffered a heart attack while in a Wisconsin jail awaiting transfer to a state prison to begin serving a 2 ½ prison sentence for marijuana trafficking. According to and the Free Dana Beal and Free Ourselves Facebook page, Beal was stricken Tuesday morning, and at last report, he was hospitalized in stable condition under sedation at the Intensive Care Unit at St. Mary's Hospital in Madison.

Beal leading Global Marijuana March in NYC, 1994 (
Last week, Beal was sentenced to prison in Wisconsin after pleading guilty to trafficking 180 pounds of pot in a bust that unraveled when his 1997 Chevy van got pulled over for expired tags and no tail light. He also got 2 ½ years of probation to be served after his jail time. He got credit for 267 days already served.

Despite courtroom testimonials from Beal supporters, including "Guru of Ganja" Ed Rosenthal and Wisconsin medical marijuana patient Jacki Rickert, Beal got prison time. But it was less than the four years the prosecution asked for and well below the 15 year maximum allowable under Wisconsin law.

Beal was already on probation after being busted with another 100-pound-plus load in Nebraska in 2009. The previous year, the New York City-based activist saw more than $100,000 in cash seized in Illinois, although he avoided any convictions in that case. He also has previous drug convictions in 1971, 1987, 1993 and 2006.

When not fighting his own cases, Beal has built a career as an activist, first with the Yippies in the early 1970s, then as a founding organizer of the Global Marijuana Marches, and in recent years, as a crusader for the addiction-treating powers of ibogaine with his group Cures Not Wars.

Madison, WI
United States

WA State Dems Endorse Marijuana Legalization

The Washington state Democratic Central Committee Saturday endorsed a marijuana legalization initiative, throwing the party's weight behind the effort to put the measure on the ballot for the November 2012 election.
downtown Seattle
The Central Committee voted 75-43 for a resolution supporting Initiative 502, which would legalize the possession of marijuana by adults and allow for its sale through pot-only stores regulated by the state liquor control authority. Initiative sponsors New Approach Washington estimate that marijuana legalization under its model would generate more than $200 a million a year in tax revenues, with more than half of that earmarked for public health programs.

The Democrats cited, among other things, law enforcement costs of marijuana prohibition and the revenues that could be gained with legalization. They noted that marijuana possession arrests, with mandatory 24-hour jail stays, accounted for half of all Washington drug arrests. 

I-502 is controversial among some segments of the marijuana legalization and medical marijuana communities because it also includes a per se driving under the influence provision. The initiative sets a blood THC level of 5 nanograms per millileter above which drivers are presumed to be impaired, but some activists argue that such a provision will result in the arrest and conviction of pot-accustomed drivers who are not actually impaired.

That didn't seem to bother the Democratic Central Committee too much, though. The committee included that provision in its long list of "whereases" in support of the initiative, noting that "this per se limit will not apply to the non-psychoactive marijuana metabolite carboxy-THC that can appear in blood or urine tests for days or even weeks after last use."

I-502 is supported by the ACLU of Washington, whose Alison Holcomb has taken a leave of absence to spearhead the campaign, and has been endorsed by prominent Washington figures, including former US Attorney John McKay (the man who prosecuted Marc Emery, ironically), Seattle City Attorney Pete Holmes, and travel writer and TV show host Rick Steves.

Organizers have until next July to gather 241,000 valid signatures to qualify for the ballot. But I-502 is an initiative to the legislature, meaning that if it passes the signature-gathering hurdle, it would then go before the state legislature in the upcoming session. If the legislature refuses to act, the initiative would then go before the voters in November 2012.

Bellingham, WA
United States

Trapped Trooper Kills Minnesota Woman Fleeing Drug Bust

Editor's Note: This year, Drug War Chronicle is trying to track every death directly attributable to domestic drug law enforcement during the year. We can use your help. If you come across a news account of a killing related to drug law enforcement, please send us an email at [email protected].]

Minnesota State Patrol cruiser (image via Wikimedia)
A Minnesota woman was shot and killed by a state trooper Saturday as she dragged him with her vehicle while attempting to flee a traffic stop that would have resulted in a drug bust. The woman, Debra Doree, 48, becomes the 34th person to be killed in domestic drug law enforcement operations so far this year.

According to the State Patrol,  the incident began as a routine traffic stop on I-94 Saturday afternoon when the unnamed trooper pulled Doree over for an "equipment violation." The trooper noticed a large amount of "a white crystalline substance" during their interaction and was investigating when Doree jumped back into her vehicle and tried to flee. The trooper's arm got tangled in the steering wheel as she drove off, and she dragged the trooper approximately 30 yards before he was able to unholster his weapon and shoot her. The trooper received minor injuries.

The white substance was later confirmed to be "a very substantial amount of narcotics," said State Patrol spokesman Lt. Eric Roeske. It is not clear what the substance was.

Doree had no criminal record in Minnesota, but her husband, Scott Doree, 53, has numerous convictions, including several for possession of methamphetamine and marijuana.

The unnamed trooper has been put on paid leave pending an investigation of the incident by the state Bureau of Criminal Apprehension, which is charged with investigating officer-involved killings in the state.

St. Paul, MN
United States

The 2011 National Drug Control Strategy: Drug Policy on Autopilot [FEATURE]

The Office of National Drug Control Policy (ONDCP -- the drug czar's office) Monday released this year's version of the annual guiding federal document on drug policy, the 2011 National Drug Control Strategy, and there's not much new or surprising there. There is a lot of talk about public health, but federal spending priorities remain weighted toward law enforcement despite all the pretty words.
Drug Czar Gil Kerlikowske -- captured by the drug war establishment
The strategy identifies three "policy priorities": reducing prescription drug abuse, addressing drugged driving, and increased prevention efforts. It also identifies populations of special interest, including veterans, college students, and women with children.

The strategy promises continued strong law enforcement and interdiction efforts, including going after the opium and heroin trade in Afghanistan and cooperating with Mexican and Central American authorities in the $1.4 billion Plan Merida attack on Mexican drug gangs.

"Drug use affects every sector of society, straining our economy, our healthcare and criminal justice systems, and endangering the futures of our young people," said ONDCP head Gil Kerlikowske in introducing the strategy. "The United States cannot afford to continue paying the devastating toll of illicit drug use and its consequences."

This is all standard stuff. One thing that is new is ONDCP's felt need to fight back against rising momentum to end the drug war, or at least legalize marijuana, and rising acceptance of medical marijuana. The strategy devoted nearly five full pages to argumentation against legalization and medical marijuana.

"Marijuana and other illicit drugs are addictive and unsafe," ONDCP argued in a section titled Facts About Marijuana. "Making matters worse, confusing messages being conveyed by the entertainment industry, media, proponents of 'medical' marijuana, and political campaigns to legalize all marijuana use perpetuate the false notion that marijuana use is harmless and aim to establish commercial access to the drug. This significantly diminishes efforts to keep our young people drug free and hampers the struggle of those recovering from addiction."

Just to be clear, ONDCP went on to say flatly "marijuana use is harmful," although it didn't bother to say how harmful or compared to what, nor did it explain why the best public policy approach to a substance that causes limited harm is to criminalize it and its users.

ONDCP also argued that despite medical marijuana being legal in 16 states and the District of Columbia, "the cannabis (marijuana) plant is not a medicine." Somewhat surprisingly, given that the DEA just days ago held that marijuana has no accepted medical use, the national drug strategy conceded that "there may be medical value for some of the individual components of the cannabis plant," but then fell back on the old "smoking marijuana is an inefficient and harmful method" of taking one's medicine.

"This administration steadfastly opposes drug legalization," the strategy emphasized.  "Legalization runs counter to a public health approach to drug control because it would increase the availability of drugs, reduce their price, undermine prevention activities, hinder recovery support efforts, and pose a significant health and safety risk to all Americans, especially our youth."

It was this section of the strategy that excited the most attention from drug policy reformers. They lined up to lambast its logic.

"It is encouraging that ONDCP felt a need to address both medical marijuana and general legalization of the plant in its 2011 strategy booklet, which was released today," noted Jacob Sullum at the Reason blog. "It is also encouraging that the ONDCP's arguments are so lame… The ONDCP never entertains the possibility that a product could be legal even though it is not harmless. Do the legality of alcohol and tobacco send the message that they are harmless? If you oppose a return to alcohol prohibition, should you be blamed for encouraging kids to drink and making life harder for recovering alcoholics? ONDCP director Gil Kerlikowske may have renounced the use of martial rhetoric to describe the government's anti-drug crusade, but he still manages to imply that reformers are traitors whose 'confusing messages' are undermining morale in the nation's struggle against the existential threat of pot smoking."

"It's sad that the drug czar decided to insert a multi-page rant against legalizing and regulating drugs into the National Drug Control Strategy instead of actually doing his job and shifting limited resources to combat the public health problem of drug abuse," said Neill Franklin, director of Law Enforcement Against Prohibition. "Obama administration officials continually talk about the fact that addiction is a medical problem, but when our budgets are so strained I cannot understand why they're dumping more money into arrests, punishment and prisons than the Bush administration ever did. The fact is, once we legalize and regulate drugs, we will not only allow police to focus on stopping violent crime instead of being distracted by arresting drug users, but we will also be able to put the resources that are saved into funding treatment and prevention programs that actually work. Who ever heard of curing a health problem with handcuffs?"

Some reformers offered a broader critique of the strategy.

"Other than an escalating war of words on marijuana, it's all pretty much the same thing as last year," said Bill Piper, director of national affairs for the Drug Policy Alliance. "There's nothing really new here, except they are a bit more punitive this year," he added, citing the pushback on marijuana, the call for a drugged driving offensive, and a call to encourage workplace drug testing. "Last year, it was more about reform, but this year ONDCP is up to its old tricks again. Whatever window they had to turn over a new leaf is closed; Kerlikowske has been fully captured by the drug war establishment."

The Obama administration could pay a price for its intransigence on drug policy, said Piper.

"They badly underestimate the American people and the drug reform movement, especially on medical marijuana," he said. "It's not just the strategy, but the DEA refusal to reschedule and the Department of Justice memo, too. They are talking about coming out big against medical marijuana, but I think they know there is little they can do. In a sense, this is an act of desperation, a sign that we are winning. First they ignore you…"

The veteran drug reform lobbyist also professed concern about the drugged driving campaign. The strategy sets as a goal a 10% reduction in drugged driving (although it doesn’t even know how prevalent it is) and encourages states to pass zero tolerance per se DUID laws that are bound to ensnare drivers who are not impaired but may have used marijuana in preceding days or weeks.

"We are concerned about getting states to pass those laws," he said. "They are problematic because people can go to jail for what they did a week ago. We're also concerned about the push for employee drug testing."

Piper's overall assessment?

"There's not a lot of new policies there, and that's disappointing," he said. "This is a drug policy on autopilot; it's just a little more aggressive on the marijuana issue."

Washington, DC
United States

Marijuana Legalization Initiatives Filed in Colorado [FEATURE]

A coalition of Colorado and national drug reform groups Friday filed eight initiatives designed to amend the state constitution to legalize marijuana. It was the opening move in an effort to put the question to Colorado voters on the November 2012 ballot.

The first steps have been taken toward letting any Colorado adult grow six of these legally. (Image courtesy the author)
The groups lining up behind the initiatives are SAFER, Sensible Colorado, the Drug Policy Alliance, Law Enforcement Against Prohibition, the Marijuana Policy Project, NORML, and Students for Sensible Drug Policy, as well as prominent Colorado marijuana attorneys and members of the state's thriving medical marijuana industry.

While the initiatives vary slightly from one another -- part of a bid by organizers to ensure they come up with the best language and pass the scrutiny of state election officials -- they all have as their core the legalization of the possession of up to an ounce by adults over 21, the legalization of the growing of up to six plants and possession of their yield, and the creation of a system of regulated commercial marijuana production and sales. (See the draft language for the base initiative here.)

The initiatives do not allow for public consumption. Nor do they protect "stoned driving" or protect workers from being fired by employers who object to their marijuana use.

"This is basically eight variations on a single initiative," said SAFER's Mason Tvert. "One version has industrial hemp, one doesn't. One version has specific language dealing with Colorado tax law, one doesn't. But otherwise, there is virtually no difference."

The initiatives now head to the state's Title Setting Review Board, which will determine whether they meet the state constitution's single-subject requirement and come up with titles for the initiatives. The initiatives could be revised based on issues and concerns that might arise during review with board staff, Tvert said.

"We want the best possible ballot title," he said. "They will create a draft title, and then we will be able to submit what we think, then there is a hearing to determine what the title should be. This is the very beginning of a long process. If one or two get shot down, we still have other possibilities. If one gets a ballot title we don't like, we still have the ability to re-file something else."

"We starting drafting this back in January," said Sensible Colorado's Brian Vicente. "We've seen a historic and unprecedented coalition of every major drug policy reform group involved in the drafting. I'm not aware of anything like that before. And SAFER and Sensible Colorado have been active in reforming marijuana laws full-time since 2004 and 2005, respectively. We have a giant network of collaborators on the ground."

But not everybody is happy. In an ominous harkening back to last November's election, a "Stoners against Prop. 19"-style opposition has already emerged. The Boulder-based Cannabis Therapy Institute (CTI), which is working on its own Relegalize 2012 initiative, came out swinging in a press release last Friday. Calling the coalition behind the initiatives "a conservative faction of national and local drug policy reform groups," the institute's Lauro Kriho said their initiatives would "attempt to undermine" advances by the marijuana movement in the state.

She criticized the initiatives on a variety of grounds, saying they did not provide protection to workers, tenants, or marijuana users who drive. She said the initiatives "appeal to law enforcement" and criticized versions that included a 15% excise tax. She also complained that the initiatives had been filed without broader feedback.

"I'm not sure why they did this without telling anybody," said Kriho. "Even the legislature gave us more notice to comment on their proposed legislation than they did. It really shows their bad faith."

But both Tvert and Vicente said that Kriho had been sent a draft of the base initiative a week before they filed it. A copy of the draft is available on the CTI web site.

"This opposition from within the movement is certainly frustrating, and we don't want to see the movement fractured," said Tvert. "We hope that anyone who supports ending marijuana prohibition will be comfortable with this initiative and be part of this broad coalition moving forward. We've reached out extensively to various groups in the community, including marijuana business leaders and organizations, and including CTI."

It's difficult to tell how much support Kriho and her critique have in Colorado's marijuana community, but Vicente seemed more bemused than concerned about it.

"I think the Colorado marijuana community is generally quite united," he said. "Most people are very supportive of this effort. We made an incredible outreach to different communities and solicited comments from grassroots activists, lawyers, and elected officials, and did our best to incorporate their concerns in the draft language. We're still requesting suggestions and we could still change the language," he said.

In the meantime, organizers are preparing for a signature gathering drive to begin toward the end of June. They will have six months to gather 85,000 valid voter signatures, and they say their goal is to hand in 130,000 or more.

And they are beginning to look for money. "We're certainly hoping to raise money, but we haven't pursued significant funding until we have an initiative in place," said Tvert. "We haven't received any significant money, but we haven't been soliciting it yet, either."

Still, the SAFER/Sensible Colorado initiative effort appears to have enough support to make it onto the ballot in 2012. Other initiative efforts, such as CTI's, can also try to make the ballot. It looks like it's going to be an interesting next 18 months in Colorado pot politics.

Denver, CO
United States

Colorado Marijuana and Driving Bill Fails

Like a vampire rising from the grave, the effort to impose a per se drugged driving law on Colorado motorists came back to life on Friday, only to have a stake driven through its heart Monday, killing it once and for all -- at least for this session of the state legislature.

They will still have to prove the high driver is actually impaired in Colorado. (Image via
As passed by the House, the bill, House Bill 1261, would have set a blood THC level of five nanograms per milliliter, above which the vehicle operator is legally presumed to have been intoxicated. Had the bill passed in its original form, only proof that the driver's blood THC level exceeded the cutoff -- not any proof of actual impairment -- would have been required to win a drugged driving conviction.

But that part of the bill went down in flames in April in the Senate Judiciary Committee. Some legislators had concerns over whether the cutoff was too high or too law, while activists were concerned that any drugged driving bill not be a per se bill. Then, as legislators were pondering the issue, Westword magazine pot critic William Breathes took the blood test. Hours after last smoking, and with no evidence of impairment, Breathes tested at 13 nanograms. Shortly after that intervention, the committee killed the per se language and turned the bill into a study bill.

Many breathed sighs of relief, but then, on Friday, the Senate Appropriations Committee took up the bill. With little discussion, the committee gutted the study language and reinserted the original per se 5 nanogram language.

But Monday evening, a divided Senate rejected the revived per se language, then killed the entire bill on a 20-15 vote. It will be back to the drawing board for the legislature.

Driving under the influence of marijuana or other drugs is still illegal in Colorado, but without the passage of this bill, prosecutors will actually have to prove impairment, not just come up with a magic number.

That was fine with Sen. Morgan Carroll (D-Aurora). "If you're going to have a shortcut to presuming somebody is impaired, let's make sure the science is established," she said.

Denver, CO
United States

Colorado Drugged Driving Bill Generating Confusion and Concerns [FEATURE]

A bill aimed at stoned driving currently working its way through the Colorado legislature would set a blood THC level above which drivers would either be presumed to be impaired or deemed impaired per se, meaning the simple fact that their THC levels surpassed that threshold would make them guilty of DUID with no other evidence needed. The state's medical and recreational marijuana users and advocates are apprehensive -- although to varying degrees -- but they are also confused.
The apprehension is over fears such a law could unjustly impact medical marijuana patients and recreational users who are not actually impaired; the confusion is because the bill, House Bill 1261, contains two different responses to drivers' testing above the specified level -- at this point, five nanograms of THC per liter of blood.

"I don't even know what the hell that means," sputtered Boulder attorney Lenny Frieling, who has tracked the bill closely as it advances. "It's internally inconsistent. If they don't fix this, I can't wait to take a case on it," he said.

The bill, introduced by Reps. Mark Waller (R) and Claire Levy (D) passed out of the House Judiciary Committee a week ago. The contradiction was supposed to have been resolved in the committee, but that didn't happen.

"As of today, we still have both in there," said Freiling. "Levy was unable to get someone on the committee to remove the per se language for now, so now she's looking to change the threshold level from five nanograms to eight."

There is apprehension about both any effort to set a THC level defining impairment and about the per se language in particular. That was evident at last week's hearing, where some patients and advocates lashed out at the bill.

"Clearly, we see it as a witch hunt on medical marijuana patients," Laura Kriho, a spokeswoman for Colorado's Cannabis Therapy Institute, told the committee.

The per se language drew the attention of patient Max Montrose, 22. "They have the potential of incriminating thousands of people who are innocent," he testified.

"While the science that is out there seems to support this five nanogram limit, we have concerns that patients who use a fair amount of marijuana legally may be caught up in this dragnet if they have high THC levels," said Brian Vicente of Sensible Colorado. "That's not an insignificant concern in a state where 2% of the population hold medical marijuana cards."

Other activists were a bit more sanguine. "Some people are fearful that patients in states like Colorado would constantly have THC levels close to or above the threshold simply by their self-medicating," said Paul Armentano, deputy director of NORML and arguably the drug reform movement's leading expert on drugged driving issues. "But we don't have the data to establish that is the case right now. There is very limited data to support that supposition."

Armentano pointed to the experience of other states that have both medical marijuana and per se marijuana DUI laws. "Rhode Island, for example, has a zero tolerance per se law, yet we do not get a lot of complaints from patients there saying police are abusing the law," he said.

"There's a lot of confusion about what this bill will actually mean," said Mason Tvert of Denver-based SAFER (Safer Alternatives for Enjoyable Recreation). "It's still being tinkered with, and amendments are being proposed, so there are likely to be some changes in the bill, but I don't really think it's going to change anything. It's already illegal to drive under the influence of marijuana, and it will still be illegal. This seems to be more of a way for the politicians to say they're doing something about this."

At least a dozen states have per se DUID marijuana laws, all but three of them zero tolerance laws, meaning any THC presence is grounds for a conviction. In two states, Nevada and Ohio, the per se threshold is set at two nanograms, while in Pennsylvania, it is set at five.

"Plenty of people in Pennsyvlania use marijuana, and we just have not seen that many complaints or criticisms of that law from the cannabis community there that the law is being abused or routinely netting cannabis consumers," said Armentano.

Setting a five nanogram threshold for marijuana impairment is reasonable, said Armentano."The scientific evidence shows that there is a rational basis to infer that an individual who tests positive at five nanograms may be under the influence of marijuana," he said. "That's not to say there should be a one size fits all standard. That's why it's so important to delineate between a per se law and a law that allows prosecutors, the defense, and the jury to assess the totality of the circumstances."

As to how long after smoking it takes for blood THC levels to dip beneath five nanograms, well, that depends, said Armentano. "Do you have residual levels? What was the potency of the marijuana?" he asked. "We know that among occasional users, blood levels fall below five nanograms within one to three hours after inhalation, but that's with relatively low potency marijuana."

Less is known about chronic pot smokers, but Armentano cited a NIDA-backed study that found out of 23 subjects, only one tested above five nanograms after 24 hours and only two more tested above one nanogram. "We can't say definitively how much time it would take, but based on the available evidence, most people would be below five nanograms within a few hours after last smoking."

While NORML has spent some resources on influencing the bill, it officially neither opposes nor supports it, Armentano said. "Our focus is to make sure this legislation is not ultimately a per se law, but one that simply sets guidelines that can be used in determining impairment," he said.

There is still time to do that. While the bill seems likely to pass in some form, it still faces another committee vote in the House, and the Senate has yet to take it up. That means there is still time to try to influence the
final outcome.

"The one area where we think we can get some movement is to target our lobbying and testifying to try to push for a rebuttable presumption in the law that would allow patients to put forth their argument that if they use marijuana in a certain way, they shouldn't be convicted," he said. "We would encourage concerned patients and advocates to reach out to the legislature and push for the rebuttable presumption -- that's damage control for a bill that's going to pass."

But the still existing per se language now presents another target for advocates and activists. In the end, it may come down to some legislative horse-trading. Will the legislature raise the threshold limits, but keep the per se language, or vice versa?

Denver, CO
United States

Washington Lawmakers Consider Limit on THC Blood Levels

United States
Not to be outdone by legislators in Colorado, Washington state officials are considering setting a legal limit for the amount of THC in a driver's blood. Nevada and Ohio have two-nanogram limits for THC. Pennsylvania has a five-nanogram "guideline," but not a limit. Twelve states have a zero-tolerance policy for driving under the influence of any illicit drug, including marijuana. A group of 11 international scientists published a comprehensive study on the effects of THC on driving ability. They concluded that drivers do not pose a crash risk until they reach between 10-20 nanograms of THC per milliliter. They also determined that 18-20 nanograms is the equivalent of a blood-alcohol content (BAC) of .08, the current legal limit in most U.S. states.
Seattle Weekly (WA)

Warrantless GPS Tracking Facing Fourth Amendment Challenges [FEATURE]

GPS satellite
by Clarence Walker

[Editor’s note: This feature story is part two of an occasional series involving electronic surveillance and its impact on the Fourth Amendment in drug investigations and other criminal matters in the United States. Read the first installment in the series here. Clarence Walker is a Houston-based criminal justice journalist. He can be reached at [email protected].]

Recent federal and state court decisions that overturned narcotic convictions of suspected drug dealers as a result of law enforcement using warrantless GPS tracking devices to watch suspects have triggered an intense debate over the Fourth Amendment, which provides citizens against unreasonable search and seizures.

The GPS controversy is at the center of a raging legal discussion over privacy rights: Should law enforcement  be allowed to install a GPS on a vehicle without a warrant during criminal investigations to track a suspect’s movement 24-7, and does warrantless tracking violate a person’s privacy although they are being watched by the police in public?

Two significant 2010 decisions on privacy rights under the Fourth Amendment highlight the continuing struggles that courts around the country are having around GPS tracking. In August, the DC 9th Circuit Court overturned the conviction of Antoine Jones based on police using a warrantless GPS to connect Jones to places containing several kilos of cocaine. Jones was sentenced to life without parole at Supermax federal prison in Florence Colorado. (Read more about the Antoine Jones case here.)

Legal experts say this case might go before the US Supreme Court. Federal prosecutors were denied an en-banc hearing in November to have a full court to throw out the 9th Circuit decision, and they have until February 14 to petition the Supreme Court to  consider their appeal of the Jones case. In the meantime, Jones continues to sit in prison.

"When the court denied the government an en-banc hearing, this sets up the Antoine Jones case for the Supreme Court to decide if GPS tracking violates the Fourth Amendment. The importance of the Jones case is that it would be the first time the Supreme Court would decide GPS surveillance in relation to search and seizure," said Stephen Lecklar, who wrote the appeal that reversed Jones conviction.

In a second case, Delaware v. Holden, on December 28, Delaware Superior Court Judge Jan Jurden reversed a suppression hearing from a lower court involving drug charges against Michael Holden. Holden, a Newark resident, was stopped by police carrying 10 pounds of marijuana. The evidence showed that prior to arresting Holden, police used GPS tracking without a warrant to follow him for 20 days.

Antoine Jones remains in federal prison pending, he hopes, one last government appeal. (Image courtesy the author)
According to press accounts, Deputy Attorney General Brian Robertson argued that information from the GPS that police attached to Holden’s vehicle was only a part of a larger "multifaceted case" against the marijuana trafficker. But Holden’s attorney, John Decker, told the court that "the 20-day long use of the GPS amounted to an unreasonable search under the state constitution and violated his client's privacy without probable cause."

"The advance of technology will continue ad infinitum," said Judge Jurden in throwing out the charge. "An Orwellian state is now technologically feasible. Without adequate judicial preservation of privacy, there’s nothing to protect our citizens from being tracked 24-7. And if no warrant is required for such surveillance any individual could be tracked indefinitely without suspicion of any crime by police without probable cause."

Meanwhile, Antoine Jones remains frustrated over the fact of being unable to be released on bond although his conviction has been reversed and the appellate courts this past November also denied the feds to an en-banc hearing to strike down the ninth circuit original decision.

"We are pleased that the Court of Appeals declined the Government's request for en banc reconsideration and reaffirmed the constitutional concerns identified by the ninth circuit," Jones' appellate attorney, Stephen Leckar, said in an email sent to reporters covering the case.

But Jones questions why he's still in prison."My conviction has been overturned, the en-banc hearing was denied,  the appeal process is over but I am still in this hellhole," he wrote to the author. "The feds' last shot is to petition the US Supreme Court, but the experts have said that only one-percent of petitioners are chosen for review."

"The court should release Mr. Jones on bond," said California attorney Diane Bass, who handles federal drug cases.

Chances for Jones's release on bond pending the government's next course of action are unclear. "The issues that a court looks at when deciding whether to release someone on bond are, is the defendant a flight risk or a danger to society," Bass said. "In an appeal situation, they also look at whether there are viable issues on appeal. Drug cases carry a presumption of flight, because of the mandatory minimum sentences which the defendant has the burden of rebutting. And the court would require an equity of $100,000 or more. I would say that since there's a possibility the Supreme Court will deny certiorari in this case, the court would be wise to release Mr. Jones on appeal."
Delaware Superior Court Judge Jan Jurden
While Jones sits in federal prison pending the resolution of his case, the thorny issue of warrantless GPS tracking and the Fourth Amendment continues to vex the courts. When the issue finally arrives at the Supreme Court, it will have to decide first whether GPS tracking constitutes a "search" under the Fourth Amendment, and second whether long-term, continuous GPS tracking without a warrant amounts to an illegal search.

"There's no clear Supreme Court guidance on this issue," said John Verdi, a senior counsel at the Electronic Privacy Information Center, a DC-based advocacy group. "Courts have left the states to decide what should be done using their own state constitutions."

Some states, like Texas, have specific requirements law enforcement officers must meet to obtain a warrant for GPS tracking. What isn't too well publicized is that an officer can ask the court for a tracking order based on reasonable suspicion as opposed to requesting a warrant which require a higher burden of probable cause.

Steve Baldassano, a senior-level prosecutor with the Harris County District Attorney Office in Houston explained:  "A tracking order requires 'reasonable suspicion.' If it's okay for a cop to follow someone in a car, it's not that much worse if the cops watch a person using electronic signals."

An unidentified Houston Police Department narcotic officer offered this blunt view: "Theoretically, a person can have a GPS tracker placed on their vehicle for life as long as the investigator has reason to believe the person will commit criminal offenses."

Whatever the realities on the street, the state and federal courts have split on warrantless GPS tracking and related issues. Courts in Wisconsin and Virginia have supported warrantless tracking, while courts in New Jersey, New York, Oregon, and Washington have ruled against it. With the federal appeals court also split, the issue seem ripe for Supreme Court review.

In the meantime, big brother is staying busy. Maryland state officials announced last year they would implement a statewide network in 2011 to collect data from automatic license plate readers. "The license plate reader provides the plate number, exact time, and the GPS location of a vehicle upon sight," the Muckraker blog noted.

With technological innovation fueling the rise of the surveillance state, preserving one's privacy from the state looks to be ever more difficult. By the time the Supreme Court has sorted out warrantless GPS tracking, there will doubtless be some new form of surveillance that we will have to be litigated.

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