Last month, when Legalize ND turned in their signatures to the Secretary of State’s office, we published an article in which I listed five arguments off the top of my head that opponents would give as reason to vote against it. I then suggested they would come up with others. As predicted, with Secretary of State Al Jaeger certifying that there is sufficient signatures to be on November’s ballot, opponents are ramping up their arguments against the measure.

The main argument to surface, that has caught fire across the state, is that passage of Measure 3 would not only legalize recreational marijuana for those 21 and older, but that it would legalize driving while high. After a bit of research, I found the verbiage in the measure that is being used to put fear into the hearts of voters. It is found as follows in Section 66-01 02:

“1. No person over the age of 21 shall be prosecuted in any court for any non-violent marijuana related activity, with the exception of the sale of marijuana to a person under the age of 21. Activities include but are not limited to; growing manufacturing, distributing, selling, or testing of marijuana. “2. No person over the age of 21 shall be prosecuted in any court for any drug paraphenalia relating to any non-violent marijuana activity.”

Following this, we then have this Statement of Supremacy in Section 66-01 03:

“1. In the event of the existence of any language in the North Dakota Century Code which conflicts with this chapter those sections are hereby nullified and repealed.”

At first reading, one may be led to believe that there’s something to the claims being made. After all, DUI’s are considered non-violent. And according to the Statement of Supremacy, this measure would nullify and repeal anything contradictory to it. There’s just one problem… it’s just not true. Let’s consider some important points regarding this issue.

When viewed in the context of the measure itself, it’s clear that DUI’s are not considered a “marijuana related activity”. Look at the nature of the activities listed that “include but are not limited to” examples of “marijuana related activity”; growing, manufacturing, distributing, selling, or testing of marijuana.In addition to this, let’s consider #2 of Section 66-01 02. As you can see, it prohibits prosecution for “any drug paraphernalia relating to any non-violent marijuana activity”. Again, we see this verbiage of “marijuana activity”. Here, Section 66-01 01 – which provides definitions – is the key to context, which states:

“2. ‘Marijuana paraphenalia’ means any item related to any activity regarding the use, manufacture, distribution, cultivation, or purification of marijuana.” (Emphasis Added) We now have not just one, but two examples from the measure itself that make it clear what is meant by “activity”. It has everything to do with growing, cultivating, manufacturing, distributing, selling, testing, etc. It has absolutely nothing to do with DUI’s. In fact, I would argue that the measure itself leaves a person caught driving high subject to paraphernalia charges as well. This would be similar to open container laws with alcohol. But let’s not stop there. The North Dakota Century Code is also clear that even legal substances are not a defense against being prosecuted for a DUI. This is the language found in NDCC 39-08-01:

“The fact that any person charged with violating this section is or has been legally entitled to use alcohol or other drugs or substances is not a defense against any charge for violating this section…” Now, a person may argue that the Statement of Supremacy found in Measure 3 would nullify this. But we’ve already shown that in the context of the measure a DUI is not considered a “marijuana related activity” and a person driving while high would be subject to prosecution under existing DUI law. We’re not done yet. The Supreme Court of North Dakota and our Attorney General have ruled and expressed opinions that intent of legislation matters in resolving perceived conflicts within the text of laws. You may recall the snafu discovered in last Legislative Session’s Constitutional Carry bill. You can go back and read the details yourself— they’re fairly extensive. But when they were discovered, the bill’s sponsors sought Attorney General Wayne Stenehjem’s opinion on the matter and he resolved it, in part, by citing the intent of the legislation. Work is now being done by an interim committee to propose legislation to amend the verbiage to clarify and harmonize it.In his opinion on the Constitutional Carry issue, Stenehjem said this:

“The North Dakota Supreme Court states that ‘[w]e interpret statutes in context and in relation to others on the same subject to give meaning to each without rendering one or the other useless.’ Statutes are also construed ‘in a practical manner, giving consideration to the context of the statutes and the purpose for which they were enacted.’ Whenever possible, statutes are harmonized to avoid conflict between them.” (Emphasis Added) Those at Legalize ND have repeatedly expressed that their measure was not, is not, and will not be intended to legalize driving while high. When we consider this – together with the feelings of the North Dakota Supreme Court and our Attorney General on intent – it is exceptionally difficult to believe that Measure 3 could ever be construed in the courts to legalize driving while high.

While I believe many have a sincere concern in relation to this issue, I also believe that it’s being propagated by those who never favored the measure in the first place. This is an attempt by those committed to defeating the measure – at all costs – to instill fear into the minds and hearts of the voters of North Dakota. I believe the facts are clear— Measure 3 does not legalize driving while high.

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