The Obama Administration and the War on Drugs

“The war on drugs has been an utter failure. We need to rethink and decriminalize our marijuana laws. We need to rethink how we’re operating the drug war.” – Then-Senate-Candidate Barack Obama, January 2004

“I don’t mind a debate around issues like decriminalization . . . I personally don’t agree that’s a solution to the problem.” – President Obama, April 2012

When President Obama was elected in 2008, many people believed our country was headed in a new direction. Candidate Obama campaigned on (besides economic issues) ending the Iraq War, closing Guantanamo Bay, immigration reform, repealing the PATRIOT Act, and taking a more sensible approach to drug policy. He said it “makes no sense” to raid patients who use marijuana for medical use. He also said that the federal government wouldn’t waste resources on enforcing federal laws against individuals compliant with state marijuana laws. As Jacob Sullum from Reason Magazine wrote in its October 2011 issue:

“The policy is to go after those people who violate both federal and state law,” Holder declared during a March 2009 session with reporters in Washington. “Given the limited resources that we have,” he said during a visit to Albuquerque three months later, the Justice Department would focus on “large traffickers,” not “organizations that are [distributing marijuana] in a way that is consistent with state law.”

Almost four years later, we are still at 8%+ unemployment, gas is hovering around $3.90 a gallon, the War is ending on the timetable established by the Bush administration, the PATRIOT Act was extended, Guantanamo Bay is still open, the US deported more undocumented workers in 2011 than ever before, and the drug war is humming along quite nicely. As an example, the DEA recently raided Oaksterdam Universitythe so-called “Princeton of Pot” as part of an on-going criminal investigation. Richard Lee, the Oaksterdam’s founder, believes it may have something to do with the fact that it wasn’t compliant with the IRS’s decision to disallow medical marijuana dispensaries from deducting business expenses. Medical marijuana raids have been more frequent under Obama than under Bush, when there were about 200 over eight years.

With all of the talk about the Administration’s focus on treatment and prevention, as opposed to enforcement, the funding levels for the DEA have largely remained unchanged since Bill Clinton was in office: roughly 40 percent for programs aimed at curbing demand and treating addicts and 60 percent for enforcing anti-drug laws. 

And this comes at a time when foreign leaders are becoming more outspoken about the misguided drug war, especially those leaders in Central and South America who have been hit hardest by cartel violence. At the Summit of the Americas, Colombian President Juan Manuel Santos said:

“In spite of all the efforts, the illicit drug business is still buoyant, drug addiction in all countries is a serious public health issue, and drug trafficking is still the main provider of funding for violence and terrorism . . . [an] in-depth discussion around this topic is needed, without any biases or dogmas, taking into consideration the different scenarios and possible alternatives to more effectively face this challenge.”

In the end, the past four years of the Obama Administration’s drug policy has been a disappointment to many, especially considering the President’s statements prior to coming into office. There are those who fear an Obama second term, worried that he will suddenly unveil his vastly liberal agenda in an attempt to transform American society, despite all evidence to the contrary. When it comes to the drug war, though, that may be our only shot.

First Pot-Pourri* Post

Since I belong to some interesting listservs and have some real news junkie friends, I am constantly getting emailed links to interesting news articles or videos. Being a defense attorney with a marijuana defense practice area, many of those news articles have to do with marijuana. In fact, sometimes my email inbox reads like a High Times version of the Huffington Post.

Usually I read the articles, watch the videos, but then simply archive the emails. The more I thought about it, it made a lot of sense to do a post every so often to include those things here on this blog. So from now on, I’ll post links to all the interesting stuff I see around the interwebs for you readers. Here’s the first batch:

New wrinkle in pot debate: stoned driving – Associated Press

Transplant Denied: How Medical Marijuana Policy Kills Patients – Reason.tv

 

Medical marijuana dispensaries set to open in Washington, D.C. – Mercury News/California News Service

Ohio State Patrol Seizes 36 Pounds of Pot in Tri-State Bust – WKRC Cincinnati

Why Drugs Should Be Legalized – Excerpt from an interview with Milton Friedman, Ph. D

 

Obama: From First to Worst on Medical Marijuana - Huffington Post/Rob Kampia, Executive Director, Marijuana Policy Project

*See that? I made “potpourri” into “Pot-Pourri.” Get it? ‘Cause it’s a marijuana law blog? I’m downright clever.

In Ohio, it’s Illegal To Drive a Car if You’ve Used Marijuana in the Last Two Weeks

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Most people know that you can’t drive a car in Ohio if you’re drunk. Most people know that you can’t drive a car in Ohio if you’re high. What most people don’t know is that you can’t drive a car if you’ve used marijuana any time within the last two weeks. Seriously.

See, Ohio has various “per se” rules when it comes to impaired driving (OVI), including the .08% BAC threshold for alcohol. If you’re pulled over for an OVI and your BAC is above that limit, then you are legally too drunk to drive, despite the fact that you may not be impaired at all. Your BAC is not just evidence of impairment, but determinative of it.

On the flip side, you can still be convicted on an OVI charge despite being under the legal limit. It’s an interesting bit of intellectual gymnastics — if you’re over the limit then the limit is the only factor that should be considered; if you’re under the limit, then it’s not.

When it comes to alcohol many people have no objections to the .08% legal limit because they believe that any person above .08% blood alcohol is impaired. Not every person under .08% is unimpaired, but every person over .08% is.

But what if that wasn’t the case? What if we prosecuted people for having something in their system that actually had no impairing effect whatsoever? Wouldn’t that be dumb?

“Marijuana-type” Per Se Prohibitions

In Ohio, it’s illegal to operate a vehicle if you have the following “per se” amounts of what I call a “marijuana-type” prohibited substance  in your system:

Urine

  • Marijuana: 10 ng/ml
  • Marijuana metabolite: 35 ng/ml
  • Marijuana, with presence of other drugs or alcohol: 15 ng/ml

Blood

  • Marijuana: 2 ng/ml
  • Marijuana metabolite: 50 ng/ml
  • Marijuana, with presence of other drugs or alcohol: 5 ng/ml

Let’s ignore the fact that these amounts are more arbitrary than the BAC limits when it comes to judging the impairment of the person using the substance, since even the National Highway and Traffic Safety Administration admits that:

[it] is difficult to establish a relationship between a person’s THC blood or plasma concentration and performance impairing effects. Concentrations of parent drug and metabolite are very dependent on pattern of use as well as dose.

Instead, let’s focus on what these limits actually mean.

Marijuana Metabolites

For purposes of this post, I’m mostly interested in talking about marijuana metabolites. A metabolite is what gets produced when your body processes something like marijuana. Metabolites stay in your system much longer than the marijuana itself, which is why many drug tests test for metabolites instead of the drug itself. While you may be impaired when you smoke marijuana, you are not impaired simply by having metabolites in your system. Again: the presence of marijuana metabolites in blood or urine does not necessarily equate to any current impairment. 

Now, there is some conflicted evidence about how long marijuana metabolites can stay in a person’s body, depending on what kind of marijuana user the person is. Some THC metabolites have an elimination half-life of 20 hours. However, some are stored in body fat and have a elimination half-life of 10 to 13 days. Most researchers agree that urine tests for marijuana can detect the presence of the drug in the body for up to 13 days.

However, there is anecdotal evidence that the length of time that marijuana remains in the body is affected by how often the person smokes, how much he smokes and how long he has been smoking. Regular smokers have reported positive drug test results after 45 days since last use and heavy smokers have reported positive tests 90 days after quitting.

So What?

Let’s say you wreck your car, and the police think it’s because you were under the influence of some type of drug. But let’s say you weren’t — you hadn’t used any controlled substance, alcohol, or even tobacco in two weeks. In any event, the police mistake your concussion for impairment, arrest you for OVI, and test your urine for controlled substances. Remember, Ohio has an implied consent statute stating that every person using a car on the road has given their implied consent to be drug tested by law enforcement when arrested for OVI.

Your specimen goes off to the lab, and lo and behold you test above the “per se” limit for marijuana metabolites two weeks after you smoked with your friends. So here’s where you find yourself: you’re charged with a crime called “operating vehicle under the influence of alcohol or drugs” despite not being under the influence of any alcohol or drug.

Get it now? The Ohio General Assembly didn’t just criminalize operating a vehicle while impaired, they literally made it a crime to operate a vehicle if you’ve used marijuana within the last 2 weeks (or maybe even longer). As long as those metabolites are in your system, you can’t drive.

This law is not about protecting people. This is the government using the implied consent statute (enacted supposedly to protect drivers) to prosecute drug offenders, even where their past use posed no harm to anyone on the road at the time they were arrested.

Photo courtesy of policecrunch.com

Marijuana as Medicine

With the news that there are two medical marijuana initiatives currently collecting signatures for inclusion on the Ohio ballot in November, I thought it might be a good idea to examine some of the science behind medical marijuana. This is certainly not a medical journal, and my goal is to make some of the scientific and legal aspects of medical marijuana as simple as I can — both for my benefit and the reader’s. None of this, of course, is medical advice — I’m not a doctor. Talk to your doctor about your specific treatment options.

Photo courtesy of Mjpression

Unfortunately, there has not been much research done on medical marijuana, at least not at the level that would be appropriate for some other prescription drugs. This is fora few reasons: (1) it’s hard for researchers to procure the amount of marijuana they need to conduct this research, given the plant’s legal status; (2) it’s hard for researchers to get the funding they need to complete the studies; (3) it’s hard to find a plant with the consistent chemical makeup; and (4) patient responses regarding pain alleviation may be clouded by the euphoria, or “high,” that may result from using medical marijuana.

Cannabinoids

However, there are certain things that we do know. To start, the main reason for using marijuana as medicine is its cannabinoids — the group of chemicals that causes the physiological effects when a person uses the drug. These cannabinoids can also be found in other animals or plants or made synthetically. The one that has everybody talking is known as THC (tetrahydrocannabinol), since it is the most psychoactive of the bunch. THC is responsible for the resulting “high” after marijuana use.

There are other active cannabinoids, though, that have different effects. Some are responsible for suppressing a person’s immune system (known as immunosuppressive cannabinoids). Suppressing an immune system sounds dangerous, but in some circumstances it can be beneficial. For example, patients with multiple sclerosis have an immune system that attacks their own bodies. For those patients, a suppressed immune system may be just what the doctor ordered.

Marijuana and Prescription Drugs

Medical marijuana can also be used to combat some of the nausea and vomiting associated with chemotherapy, as was recognized by the Institute of Medicine. In fact, there are some drugs on the market now that make use of the anti-nausea cannabinoids, like Marinol, Cesamet, Zofran, and Emend. These drugs can combat the nausea and vomiting without producing the high associated with marijuana use. Unfortunately, no tests exist that compare the effectiveness of marijuana to the modern anti-nausea drugs like Zofran and Emend.

The fact that the modern drugs don’t have the psychoactive effects of marijuana is beneficial when a physician is only trying to treat nausea or vomiting, but we all know those aren’t the only symptoms associated with cancer or chemotherapy. In fact, having cancer can cause a person to experience great anxiety or dread — normally treated by anti-anxiety benzodiazepines like Xanax or Valium. However, the euphoric high experienced when using marijuana can therapeutic in that it helps to relieve that same anxiety or dread. Many patients might prefer using one drug (marijuana) to treat multiple symptoms, rather than being prescribed multiple drugs to treat multiple symptoms.

After treatment has ended, a patient may become dependent on the drug used to treat his or her symptoms. That patient is likely to experience more severe withdrawal symptoms after using benzodiazepines than would be the case if the patient was treated with marijuana. Withdrawal symptoms associated with marijuana-dependent individuals may last 1-3 weeks while withdrawal symptoms may last for months after stopping use of benzodiazepines.

Marijuana is currently listed as a Schedule I drug under Ohio and federal law, meaning it has a high potential for abuse without any recognized medical benefit. I have not read any studies regarding the likelihood of dependency or abuse of marijuana compared with benzodiazepines. If you are aware of studies of that nature, I would certainly be interested in reading them or getting your take on the results.

Conclusion

In my mind, the question is no longer whether marijuana has a medical benefit. Rather, researchers are attempting to determine the extent of those benefits. These are questions better answered by doctors, patients and scientists — not legislators or bureaucrats.

I relied heavily on the article “The Cannabis Conundrum: Medication v. Regulation,” written by Moira Gibbons. It was published in the ABA Health Law Section: The Health Lawyer in December of 2011. And yes, I’ve noticed that the title of her article is similar to the symposium the Journal of Law & Health sponsored in March 2011. Apparently attorneys can’t avoid alliteration. (see what I did there?)

I’d love to hear your comments on medical marijuana, so be sure to post them below.

The Cannabis Conundrum

Below is video taken from a March 2011 symposium held at Cleveland-Marshall College of Law on the subject of legalizing medical cannabis in Ohio.

The Cannabis Conundrum: A Symposium on Legalizing Medical Cannabis in Ohio

The symposium featured Ohio State Representative Kenny Yuko, Cleveland-Marshall College of Law professor Stephen Lazarus, Cleveland Clinic physician Mellar Davis, Michigan physician Jamie Hall, and Michael Cohill, who was involved in drafting the Ohio Medical Cannabis Amendment ballot initiative for inclusion on the Ohio 2012 ballot. The participants discussed the implications of legalizing cannabis in Ohio, as well as the effects of Michigan’s Medical Marijuana Act and its impact in that state.

Ohio 7th District State Representative Kenny Yuko introduced House Bill 478, which would legalize in Ohio the use, growth and dispensing of medical cannabis for persons suffering from debilitating conditions including cancer, glaucoma, multiple sclerosis and Crohn’s disease. House Bill 478 is not unlike other medical cannabis laws passed either through legislation or by referendum around the country. Medical cannabis is legal in Michigan, which provides an intriguing opportunity to see how medical cannabis legislation works in the Midwest.

Medical Cannabis on the 2012 Ohio Ballot?

Given the incessant coverage of the 2012 Presidential primary contest (can you believe Mitt Romney’s tax rate?!), it’s no wonder that many Ohioans aren’t aware that medical cannabis could be on the November 2012 ballot in Ohio. That’s right. In November, Buckeyes across the state may get the chance to legalize medical marijuana.

The Ohio Medical Cannabis Act

There are two ballot initiatives out there currently: (1) the Ohio Alternative Treatment Amendment, and (2) The Ohio Medical Cannabis Amendment. Both ballot initiatives have obtained the required approval from state authorities to begin gathering signatures. The amendments need 385,245 valid signatures of registered voters to qualify for the ballot.

If either of these ballot initiatives pass, Ohio would become one of 16 states, plus the District of Columbia, to have some sort of legalized medical cannabis laws.

The Ohio Alternative Treatment Amendment

The Ohio Alternative Treatment Amendment, proposed by the Ohio Patients Network would allow doctors to recommend medical cannabis to adult patients with a qualifying medical condition. Under this amendment, patients could possess up to 3.5 ounces of cannabis and cultivate up to 12 plants. Regulation of medical cannabis would fall largely under the auspice of the Ohio Department of Health, although local zoning authorities would play a role in determining where “safe access centers” (dispensaries) could locate.

The Amendment also prohibits the centers from being located within 1000 feet of certain buildings, such as churches or schools. It would not be legal to operate a vehicle under the influence of cannabis, nor would employers be required to allow employees to use cannabis on at the workplace or allow employees to work while under the influence of cannabis. However, the employer would have to demonstrate that the employee was “impaired” if he or she claimed the employee was under the influence.

Notably, no health insurer, including the state of Ohio, would be required to reimburse a medical cannabis patient for the costs associated with using or obtaining medical cannabis.

The OATA is supported by the National Organization for Reform of Marijuana Laws (NORML).

Click here for the full text of the amendment. Click here for a summary of the amendment. 

The Ohio Medical Cannabis Amendment

The Ohio Medical Cannabis Amendment takes a different approach than the OATA, mentioned above. Rather than prescribe a regulatory scheme like the OATA, the OMCA takes a “rights” approach to medical cannabis, including among an Ohioan’s rights the right to “be eligible to use cannabis as medicine as a result of a diagnosed debilitating medical condition.” The OMCA would establish the Ohio Commission of Cannabis Control to regulate, fairly exclusively, medical cannabis in Ohio.

Because the OMCA would turn over the “nitty gritty” affairs of medical cannabis regulation to the new Ohio Commission of Cannabis Control, the amendment language does not provide much detail regarding exactly how medical cannabis would be regulated in Ohio. However, the OMCA does state that it does not authorize the operation of a motor vehicle when under the influence of cannabis, nor does it authorize the use of cannabis when doing so would constitute negligence or professional malpractice (limitations also present in the OATA).

Click here for the full text of the amendment. Click here for a summary of the amendment.

Summary

It will be interesting to see what happens with these amendments, whether either obtains the necessary amount of signatures to appear on the ballot, or whether either passes in November. In 2009, a University of Cincinnati poll found that 73% of Ohioans would support legalizing medical cannabis in Ohio.