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Don't break out the Cheetos and Goldfish just yet

Or... The Legality of Legal Marijuana

Last week, I commented briefly on some changes in two state laws that legalized marijuana. While many people focused on the intensity of the presidential campaign, voters in Washington and Colorado passed propositions making it legal to buy marijuana for recreational use. But those who may support the movement (and who live in the two states mentioned above) shouldn't start hording their Twinkies just yet in anticipation for when the laws come into effect. There is still a lot of legal issues that will need to be sorted out. A closer look at the legal writing of the proposed laws shows some interesting details.

Use
While both states will allow the possession and purchase of up to an ounce (~28 grams), only one of them took it a step further. In Colorado, it is legal to do two things: grow and smoke. In Washington, you still can't grow. Why the limitations? Limiting legal growing to only 6 plants for personal use (in Colorado) or still prohibiting it entirely (in Washington) helps to protect against abuse of the system for profit or gain. It pushes those who wish to make a profit from selling marijuana into the spotlight of legal distribution and the regulations that come with it. Both laws enforce restrictions on personal selling (but not gifting), meaning only those licensed with the state can profit from the sale of the drug. A person can still get in trouble for selling to a friend, but the question now persists, will it be an issue of criminal drug enforcement or of state commerce?

Sales Restrictions
Both Colorado and Washington are going to restrict the legal use of recreational marijuana to those 21 years and older. Much like with current liquor laws in most states, those 21 and younger will have to wait their turn. Other restrictions for each state will include retailer locational limitations, advertising restrictions, and license fee costs. While Coloradans will have to wait at least seven months to see what regulations on marijuana retailers will actually apply, Washington's initiative spells out some tight restrictions. In the language of the law are some of the below points:

- No retailer shall reside within one thousand feet of a school, playground, rec center, public park, public transit center, library, child care center, or 21 and under game arcade.
- No retailer shall publicly advertise in any form within one thousand feet of the above or on public transport vehicles or publicly owned property.
- No retailer shall sell any other products or services other than marijuana, marijuana infused items, and marijuana paraphernalia.
- No retailer shall allow consumption or use of marijuana or marijuana infused items on their premises.

So sorry to all those who were looking forward to Amsterdam style "coffee" shops opening up around Washington. The state plans to treat recreational use similar to how many states are already treating medical marijuana sales and that means recreational users will have to continue to smoke in private. And While Colorado may choose to go a different route with regard to retailer restrictions, the letter of the law is clear for both states: Public smoking of weed is not okay.

Driving
With the continued ban on public use comes the continued enforcement against driving under the influence. Colorado's amendment maintains its theme of leaving time to adapt specifics in the current statutory law to better cover marijuana concentration testing in suspects, but Washington's initiative spells out the changes made for driving under the influence right up front:

You are considered to be driving under the influence if found to have a 5.00 THC concentration in the blood for people 21 and over and 0.00 THC for those 21 and under.

But how will one know when it's okay to drive again after ingesting or inhaling the drug? According to the National Highway Traffic Safety Administration, the THC concentration levels in the blood fall to below 5.00 nano-grams per milliliter after about three hours. Since the most effective method of testing current THC concentration levels (and not stored THC) is through blood, it is difficult to see how local authorities plan to enforce these revised DUI laws against what some people fear will be an influx of drivers under the influence after December 6th, 2012.

Federal Influence
With the changes in Colorado and Washington's laws comes renewed questions about whether the federal government will try to enforce federal law over the law of each independent state. If you weren't aware, the possession and use of marijuana is still very illegal under federal law. And if you're living in one of the states surrounding Colorado and Washington and was thinking of maybe making a quick run over the state line to get the ganja the legal way, you may want to reconsider.

Even if the neighbor state has legalized it and your state only considers marijuana possession to be a misdemeanor, crossing over from one state to another puts you smack into the territory of federal regulation and the enforcement that goes with it. It's called interstate drug trafficking and federal law has strict rules against it. A first time offense for someone carrying under 50 kg (up to almost 110 pounds!) is a maximum of five years in federal prison and a maximum fine of $250,000 per individual. While it seems unlikely that the federal government will pursue low level offenders carrying an ounce or less, it isn't impossible to consider in theory; especially with the on-going crackdown by the Department of Justice on state medical marijuana dispensaries. It is only a matter of waiting and seeing how the federal government plans to respond.

Luckily for those who support recreational marijuana, there is still a fight going on to have the federal government respect state rights. This week, U.S. Representative Diane DeGette filed a bipartisan bill focused on requiring the federal government to respect the vote of the people by exempting those states that have voted for legalized pot from specific provisions in the federal Controlled Substances Act that are focused on marijuana.

Protection Limitations
Even if the federal government doesn't get directly involved in enforcing federal laws, there are still limitations to the new laws. Neither piece of legislation provides any protection for recreational smokers from the risk of losing their jobs. In fact, Colorado's amendment specifically excludes employee rights from its scope:

(a) NOTHING IN THIS SECTION IS INTENDED TO REQUIRE AN EMPLOYER TO PERMIT OR ACCOMMODATE THE USE, CONSUMPTION, POSSESSION, TRANSFER, DISPLAY, TRANSPORTATION, SALE OR GROWING OF MARIJUANA IN THE WORKPLACE OR TO AFFECT THE ABILITY OF EMPLOYERS TO HAVE POLICIES RESTRICTING THE USE OF MARIJUANA BY EMPLOYEES.

Common law in other states (such as in California) has shown that even if it is legal in the state to smoke medical cannabis, it doesn't mean employers have to continue to employ someone who chooses to partake in it. Since labor laws are spelled out on both the federal and state level, each employer has the obligation of considering whether they will permit their employees to use recreational marijuana in their personal lives. Some states have fought for the right of employees to use medical marijuana (again, like in California), but it is unlikely that you will see the same push when a person's well-being and health isn't being defended. Unless state legislation pushes through laws to protect employees rights to partake off the job, then those who use recreational marijuana will have to deal with the risk of losing employment one puff at a time.


Timeline
So when will all these changes happen? As the governor of Colorado said the day after the election, "...don't break out the Cheetos and Goldfish just yet". While Washington's initiative is far more detailed than Colorado's short amendment, both are not slated to start the legal sale of marijuana until around the beginning of 2014. Possession and use of marijuana will officially be legal in Colorado no later than January 5th, 2013, but even after that, the state still has two other milestones ahead. The amendment calls for all regulation to be written and approved by the Department of Revenue no later than July 2013. This regulation would pertain to producers, sellers, and users of recreational marijuana as well as any required guidelines (packaging, potency, etc) for the product itself. Next comes the application process. Amendment 64 calls for the state to start accepting applications for seller licenses no later than October 2013. With a maximum 90 day review period for acceptance or denial, it is realistic to expect the legal sale of marijuana in Colorado to not officially begin sometime between November 2013 to February 2014.

Washington state helped to make some large scale changes with their initiative, modifying the state's law to exclude marijuana possession, sale, and use as a criminal offense. This change will go into effect by December 6th, 2012. At that point it will be legal to possess and use marijuana, but not to buy or sell it. According to the text of the initiative, Washington State's Liquor Control Board has until December 1st, 2013 to adopt all rules required to support the legal sale of recreational marijuana. Considering the time required to process applications, give out licenses, test the products being sold, and have sellers set up shop in compliance with the regulations, residents of Washington likely won't see the legal sale of marijuana until early 2014 as well. When it finally starts happening, expect to see a tax rate of roughly 25% on each stage (producer, wholesaler, retailer) of the process. It's still unknown whether this will result in a higher price level for legal weed compared to the stuff sold illegally on the streets.

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While not everyone can agree on the medical or recreational use of cannabis, one thing that most can't deny is the legal complexities that we face in the coming year ahead. Not only will we have to wait to see how each state handles the finer points of regulation, but we have a good chance of seeing how the federal government will chose to respond against both commercial enterprises and individual users. As even more states begin to proceed with legislation aimed at ending the prohibition of marijuana, it is only a matter of time before this issue resurfaces on the federal level and on the international stage as well.

You can read the full legal test of either Amendment 64 or Initiative 502 below:
Amendment 64 - Colorado
Initiative 502 - Washington


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