MARIJUANA ON BALLOT - QUESTION'S WORDING CHALLENGED

Prosecutors say measure circumvents DUI law

Clark County prosecutors say there is a flaw in the wording of a
ballot question to legalize the possession of small amounts of
marijuana, and they contend it could hinder their ability to prosecute
motorists who drive under the influence of drugs.

Those who favor easing Nevada's marijuana possession laws strongly
disagree.

"This is a red herring," said Billy Rogers of Nevadans for Responsible
Law Enforcement, which supports the initiative.

"The initiative certainly does not prohibit the enforcement of the
(driving under the influence) laws that are already on the books,"
Rogers said.

In November, Nevada voters will decide whether the state should
legalize the possession of up to 3 ounces of marijuana. If the
initiative is approved, voters would have to approve it again in 2004
before it becomes part of the state's constitution.

The initiative says anyone "driving dangerously" or operating
machinery under the influence of marijuana can be prosecuted.

Clark County prosecutor Bruce Nelson says the wording "driving
dangerously" conflicts with the state's current driving under the
influence statute, which does not dictate that someone be "driving
dangerously" before they are arrested.

Instead, someone must simply be impaired or driving with a prohibited
substance in their blood.

"None of our present misdemeanor DUI drug statutes require the state
to prove a person is driving dangerously while under the influence, so
all of our present laws would conflict with the marijuana initiative,"
Nelson said Tuesday.

Nelson said his concern is especially warranted given another portion
of the initiative, which reads "any statute or regulation"
inconsistent with the initiative is "null and void."

Nelson said the authors of the initiative might not have intended to
contradict state law, but "unfortunately with the law, one word can
screw it all up."

Rogers said prosecutors are misinterpreting the initiative.

"There is nothing in this initiative that would overturn the current
laws," he said.

Rogers said if the Legislature wants to address the wording of the
initiative, it could do so by passing a law that dictates someone
"driving dangerously" while under the influence of marijuana could
face a more severe charge than simple driving under the influence.

"When the facts aren't on their side, the opponents will throw up a
smoke screen," Rogers said. "There is nothing in this initiative that
prevents the prosecution of people driving under the influence of marijuana."

The provisions of the marijuana initiative, if it becomes law, appear
to be especially relevant to the high-profile case of vehicular crimes
defendant Jessica Williams. In March 2000, Williams' vehicle traveled
into the median of Interstate 15 and killed six teenagers picking up
trash as part of a youth offenders work crew. Williams' attorney
contended she fell asleep at the wheel.

The crash occurred two hours after Williams smoked marijuana and about
10 hours after she used Ecstasy. She was convicted of six counts of
driving with a prohibited substance, marijuana, in her blood, but
jurors determined that Williams was not under the influence of the
drugs at the time of the accident.

Clark County prosecutor Gary Booker said if the marijuana initiative
and its "driving dangerously" provision was law prior to the Williams
crash, he believes Williams "would not have violated the DUI law."

"Jessica Williams would have done nothing wrong," Booker
said.

Williams' attorney, John Watkins, said the marijuana initiative and
its "driving dangerously" provision holds the potential to mandate
that those with marijuana in their system be prosecuted only if they
are impaired.

"That's what it should be," Watkins said. "If you are impaired, you
get punished.

"The Legislature has seen that marijuana is less harmful than alcohol,
but they haven't cleaned up all the statutes," Watkins said. "We need
to be intellectually honest about these things."

JoNell Thomas, a defense attorney, doubts the wording of the marijuana
initiative would prevent the prosecution of driving under the
influence cases.

"I could easily read this initiative and interpret it as `if indeed
you are under the influence, it would still be illegal,' " Thomas
said. "I think that is what the intent is."

"This certainly wouldn't affect any drug other than pot," Thomas
said.

Like Watkins, she agrees that the "driving dangerously" provision
could rightfully nullify the portion of state law that prevents
driving with a prohibited substance in the blood even if that person
is not impaired.

"It could be read as a backlash to that stupid law," she
said.