MARIJUANA SCHISM

Stevens County activists dressed in prison stripes recently were
tossed out of Gonzaga University's Cataldo Hall where Rick Steves,
the travel writer and TV show host, was delivering a speech.

Members of the November Coalition, a foundation dedicated to ending
the drug war, had no gripe with Steves' hotel recommendations, but
rather with his public support for an initiative to reform
Washington's marijuana laws that the protesters say falls short of
decriminalization.

"New Approach Washington" is the name of the well-financed effort to
bring before the Legislature early next year Initiative 502, which
would treat marijuana like a public health issue rather than a crime.

Paid signature-gatherers had collected more than 312,000 names two
weeks before the Friday deadline to deliver 241,153 valid signatures
to the secretary of state.

The movement should not be confused with "Sensible Washington," whose
grass-roots volunteers have tried without success for the past two
years to introduce a much more sweeping repeal of civil and criminal
penalties for marijuana most recently in the form of Initiative 1149.

Some might think that two movements with a common overarching goal
would overcome their differences to repeal a marijuana policy that
has cost millions of dollars to enforce and has resulted in the
incarceration of thousands of people.

Instead the competing initiatives have created a schism between
decriminalization advocates at a time when Eastern Washington medical
marijuana vendors have been driven underground once again by federal
prosecutors who are far more aggressive than their West Side colleagues.

Initiative "502 does not legalize marijuana," said Douglas Hiatt, of
Sensible Washington, a Seattle criminal defense attorney specializing
in medical marijuana who co-wrote I-1149. He said I-502 allows a
narrow exception under the law for 1 ounce of marijuana, and then
creates "a ridiculous regulatory scheme" and overtaxes it.

Hiatt's adversary is Alison Holcomb, an American Civil Liberties
Union attorney who is campaign director of New Approach Washington
and co-author of I-502.

"At a substantive level, people deserve to be presented with a
thoughtful, well-considered proposal" that reflects "valid public
health and public safety concerns," Holcomb said.

I-502 creates a regulatory system, much like the liquor control
system, in which a board oversees licensing of marijuana producers,
processors and retailers, and imposes an excise tax of 25 percent at
each step along the way to consumers.

Unlike state liquor stores, which voters just voted to eliminate by
approving Initiative 1182, marijuana stores would be privately owned
and operated. Sales tax and business and occupation tax also would be
levied. Growing marijuana for personal use would continue to be illegal.

Most of the revenue generated by the excise taxes would be earmarked
for drug abuse prevention, research, education and implementation of
the new law. The Washington Institute for Public Policy would be
tapped to do cost-benefit analyses. Part of the proceeds would fund
student dropout prevention and outreach.

New Approach Washington is backed by large contributions, including
$250,000 from Progressive Insurance CEO Peter Lewis. It also has an
impressive array of supporters, including John McKay, former U.S.
attorney for the Western District of Washington, and Dr. Kim
Thorburn, former Spokane Regional Health District officer.

"I strongly want to see marijuana legalized for public health, for
human reasons," Thorburn said. "The war on drugs doesn't work. It has
filled up our prisons unnecessarily."

Nevertheless, the outspoken Thorburn said she has learned something
about politics in her years of public service, and marijuana
deregulation is not going to pass if it's not regulated.

"People aren't going to be comfortable with an absolutely libertarian
anything-goes," she said.

Driving the debate

So New Approach found out through polling what bothers the public the
most about decriminalization and wove a tailor-made initiative.

Two potential hurdles were voter fears of increased pot-smoking by
youth and a greater chance of marijuana-related auto accidents. I-502
addresses both issues in ways that distress Sensible Washington.

First, decriminalization would apply only to adults 21 and older.

"What they did was apply a zero-tolerance standard to everybody under
21," Hiatt said. "So if you are minority kid in the city, it's open season."

Holcomb responds that marijuana users 18 to 21 years old "are already
criminalized" and that polling "tells us the public is most
comfortable with the hard-alcohol model."

But what annoys Sensible Washington backers the most is I-502's
"driving under the influence" provisions.

Drivers would automatically be found guilty of DUI if the amount of
THC, the primary psychoactive compound in marijuana, is above 5
nanograms per milliliter of blood.

"Not a single medical marijuana patient that I know of would be able
to drive legally," Hiatt said, adding that such a DUI provision would
be the toughest in the country.

In addition, he said, the 5-nanogram standard has no basis in
scientific research, which is sorely lacking on the subject of driver
impairment due to marijuana. Hiatt believes it is a misguided attempt
to produce a law people can understand, like the 0.08 blood-alcohol
standard, when it is "completely inappropriate to compare" marijuana
to alcohol because of different tolerances and the way THC is
metabolized differently in each individual who uses it.

Holcomb acknowledges that "the science around the THC impact on
driving is not as robust as alcohol," but what data are available
suggest the 5-nanogram standard is "a workable guideline."

"That's why we have earmarked funds to study that exact issue,"
Holcomb said. "For now, let's err on the side of caution."

However, the national medical marijuana advocacy organization
Americans for Safe Access says testing standards for marijuana based
on metabolites is extremely problematic.

"Studies have shown that marijuana may only have a minimal impact on
driving performance," ASA spokesman Kris Hermes said. Other studies
have shown that levels well above 5 nanograms per milliliter can
remain in the blood for several hours even though impairment may no
longer be at issue.

Holcomb said law enforcement would still be required to have probable
cause for an arrest and reasonable grounds to believe a driver is
impaired by drugs before a drug test may be administered.

"The reality is we have had a medical marijuana law since 1998, and
you just don't see a lot of people getting pulled over and taken in
for blood tests," she said.

Hiatt is skeptical.

"I've been a criminal defense attorney for 20 years. Don't talk to me
about probable cause to pull somebody over," he said. "(Police) can
pull anybody over any time, and everybody knows it."

Federal questions

Hiatt favors a broader approach to decriminalizing marijuana similar
to state withdrawal from prohibition in the early 1930s.

"Washington essentially took alcohol out of the state law," he said.
"Then they said to the feds, 'If you want prohibition, you pay for it.' "

Hiatt presumes the Legislature is capable of crafting regulations for
control of marijuana after it is decriminalized by a less onerous
method than I-502, which he believes federal law would pre-empt anyway.

"What we would end up with is a really terrible DUI law and 1 ounce
of marijuana with nowhere legally to buy it," Hiatt said of I-502.

Holcomb said she doubts the federal government would expend federal
resources going after people that are in clear and unambiguous
compliance with state law. As for the recent federal prosecution of
Spokane medical marijuana dealers, Holcomb suggested they were
"operating outside the letter and spirit" of Washington law.

"We drafted I-502 to withstand a legal challenge," Holcomb said. "But
more importantly, we drafted it to present a solid policy proposal
that will make it difficult politically for the federal government to
come in and try to strike it down."

If the requisite number of signatures is found to be valid, I-502
will be referred for consideration by the Legislature next month. If
lawmakers fail to pass it, the initiative will go on the November
general election ballot.

Seth Walser, of the November Coalition in Colville, fears signers of
the New Approach petitions are confusing the drive with the Sensible
Washington efforts, and that I-502 actually will be a step backward
for medical marijuana patients.

"There are some really big differences, but the real issue is we have
people gathering signatures (for I-502) who are not educating people
as to what they are signing," Walser said.

"It is not just a legalization bill but a bill that has significant
unintended consequences," he said. "We want a law that people have
voted on in an educated manner and not just one that has managed to
get its foot in the door."