Washington’s I-502 ‘Legalization’: Don’t Fall For This Narrow Proposal

By Douglas Hiatt

Sensible Washington

Washington voters are being told a big lie. New Approach Washington, the campaign behind Initiative 502, is advertising that it will “legalize” marijuana. It would not.

It creates a very narrow exception that defines the possession of one ounce by adults over 21, and the state’s rules for production, as “not a violation” of the law.

I-502 leaves every single law now making marijuana illegal on the books. Walk out of the state-sanctioned, licensed and taxed store and hand the marijuana to your significant other and it is a delivery of marijuana.

This is not comprehensive, real reform.

What I-502 does change is our DUI law. Our current DUI laws are working just fine and result in conviction rates of more than 90 percent. This initiative sets unneeded, unasked for and unscientific levels for impairment for adults (5 nanograms, rejected three times by the Colorado Legislature), while establishing a zero-tolerance provision for all drivers 16 to 21.

It also takes away your ability to defend yourself. If you meet the levels, you are guilty. No explaining that you are a patient, no arguing about the levels or tolerance, nothing. For drivers age 16 to 21, any detectable amount of marijuana will result in a DUI conviction and disastrous effects on their parents’ insurance.

This is not based on impairment; it is simply a new penalty for marijuana for kids. But it is a very impactful one for parents with teenage drivers. What parent wants to face the requirements for insurance and the expense of a DUI, all because of some youthful experimentation?

This initiative is also being sold as “pitting the citizens of Washington state against the federal government” and “carefully drafted” to withstand federal preemption. Not true.

I-502 essentially wastes your vote to force federal change and will likely result in the federal courts construing this initiative to change the law to one ounce decriminalized, with nowhere legal to buy it and leaving the terrible changes to our DUI laws.

As U.S. Attorney Jenny Durkan has stated, she knows of no attorney who thinks that this will survive federal preemption analyses. There are ways to avoid this drafting problem. See sensiblewashington.org for real cannabis reform.

Because the federal government will not allow the state to begin regulating and taxing a federally banned substance, these projections are moot. I-502 imposes taxes at three distinct levels and does not allow growers and sellers to be the same entity. This will produce taxes that will make the store-bought marijuana way too expensive to even begin to impact the current market.

I-502 will have absolutely no effect on criminal organizations in Mexico or anywhere else. To actually get the benefit of ending prohibition, as we did with alcohol, you have to actually legalize the substance in question, not play games and pander to fears.

I-502 also fails to legalize hemp, which would open a $430 million domestic hemp market currently supplied primarily by China.

With regard to other criminal justice savings, because more than 90 percent of current marijuana possession charges are the result of traffic stops, the 10,000 possession arrests per year can easily be converted into 10,000 (or more) DUI arrests, thereby eliminating any savings in the criminal justice system stemming from reduced prosecutions.

The zero-tolerance driving standard for drivers 16 to 21 will eliminate any savings on criminal justice costs and produce much misery for many families.

Just say no to I-520.

Editor’s note: Douglas Hiatt is a Seattle-based criminal defense attorney and a co-founder of Sensible Washington, which opposes Initiative 502 and advocates for legalization of hemp and cannabis. This op-ed originally appeared in The Olympian.