Category Archives: Drug War

BIG NEWS: DOJ recommends marijuana policy status quo over federal crackdown

Shortly after being confirmed as Attorney General, Jeff Sessions created various task forces to review Obama-era DOJ policies. In late July he received a report back from the task force evaluating federal marijuana enforcement policy, and the Associated Press is reporting that the news is good for state-legal marijuana businesses:

The Task Force on Crime Reduction and Public Safety, a group of prosecutors and federal law enforcement officials, has come up with no new policy recommendations to advance the attorney general’s aggressively anti-marijuana views. The group’s report largely reiterates the current Justice Department policy on marijuana.

It encourages officials to keep studying whether to change or rescind the Obama administration’s more hands-off approach to enforcement — a stance that has allowed the nation’s experiment with legal pot to flourish. The report was not slated to be released publicly, but portions were obtained by the AP.

While this report does not bind the DOJ to any particular policy stance, it is in line with recent comments that have come from Jeff Sessions. Indeed, he said that the 2013 Cole Memo was “valid,” while noting he may have some “different ideas . . . in addition to that, but essentially we’re not able to go into a state and pick up the work that the police and sheriffs have been doing for decades.”

In a meeting with Colorado Governor John Hickenlooper earlier this year, Sessions appeared open to maintaining the “hands off” approach the DOJ has taken in legal states. “He’s obviously reviewing the Cole (Memo),” Hickenlooper said. “(They’re working on) a version of that that makes sense for this administration. We’ll have to see how far they go.” Doug Friednash, Hickenlooper’s chief-of-staff, told The Denver Post that Sessions said the Cole Memo was “not too far from good policy.” 

Now that’s all good news, but the DOJ has also sent letters to Colorado, Oregon, and Washington state officials questioning the efficacy of their state regulatory structures. Washington state officials, for their part, have begun responding to the allegations contained in the letter they received.

The news from the DOJ comes on the heels of a bill introduced by New Jersey Senator (and likely 2020 presidential candidate) Cory Booker that would legalize marijuana. While Booker’s bill is unlikely to get much traction in Congress, it is a sign that legal marijuana could shape up to be a pivotal issue in the 2020 race.

Marijuana policy at the federal and state levels continues to change at seemingly breakneck speed. I’ll be updating this blog more often to keep you all up-to-date on the most recent news. Check back for new posts on Ohio’s proposed districts for Ohio medical marijuana dispensaries, the release of applications for Ohio medical marijuana testing laboratories, information about Ohio’s medical marijuana cultivator applicants, and other marijuana law and policy news.

Finally, later this week I’ll also be sharing some pretty big personal news. So I’ve got that going for me. Which is nice. 

Drugged Driving?

Ohio is one of six states that have legal tests in place to determine if a driver is impaired by marijuana – but what do these tests really tell us? Not much, according to a recent study commissioned by the American Auto Association (AAA), the nation’s largest automobile club. According to their study it is not possible to set a simple blood-test threshold for THC (the chemical responsible for marijuana’s psychological effects). They insist that the tests have no scientific basis at all.

Determining whether someone is impaired by marijuana is far more complex than the simple  tests that have been developed for alcohol. According to AAA’s CEO Marshall Doney, “In the case of marijuana, this approach is flawed and not supported by scientific data.”

Marijuana is not metabolized by the body in the same way as alcohol – there is no science that shows that drivers become impaired when their blood reaches a specific level of THC. It is possible for some drivers to remain unimpaired with relatively high levels of THC in their system. Others drivers with lower levels of THC in their system may be entirely impaired behind the wheel – and this inconsistency seriously discredits any universal THC standards for impairment.

A lot depends on the individual when it comes to marijuana. THC persists in the blood of frequent marijuana users long after use, while it dissipates more rapidly among occasional users. The current tests in place can only tell us if a driver has merely used the drug at some point – the presence of THC’s metabolites can linger in the body weeks after use. This could lead to the inappropriate conviction of drivers who are otherwise operating their vehicle safely. Further, the body processes active THC very quickly, so a driver may very well fall below the legal threshold before a blood test is administered.

Exactly how dangerous is driving under the influence of marijuana? It is about as dangerous as driving with a “noisy child in the back of the car,” according to Mark A. R. Kleiman, an NYU professor and specialist in issues involving drugs and criminal policy. By comparison, driving while using a hands-free cellphone quadruples the risk of an accident.  Kleiman also noted that the average alcohol content in drunk driving cases renders you 15 times more likely to crash your car.

According to AAA – motorists are being convicted of driving under the influence of marijuana based on what seem to be arbitrary state standards that have no connection to whether the driver was actually impaired.

Sources:

http://www.dispatch.com/content/stories/local/2016/05/10/0510-ohios-limit-for-marijuana-driving-isnt-scientific.html

http://norml.org/library/item/marijuana-and-driving-a-review-of-the-scientific-evidence

http://abcnews.go.com/Politics/wireStory/scientific-basis-laws-marijuana-driving-questioned-39001339

 

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.

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

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

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.