Pubdate: Tue, 10 Sep 2013
Source: East Valley Tribune (AZ)
Copyright: 2013 East Valley Tribune.
Author: Howard Fischer


The group that helped get Arizona a medical marijuana law in 2010 is now
gearing up for a 2016 ballot measure to allow any adult to use the drug
for recreational purposes.

Mason Tvert, spokesman for the Marijuana Policy Project, said Tuesday
his group is buoyed by the announcement last month by the Obama
administration that the Department of Justice will not try to void
voter-approved laws in Colorado and Washington making recreational use
of the drug legal. That, he said, paves the way for expansion of the
concept into 10 other states, including Arizona.

Tvert, a Scottsdale native, acknowledged that the original medical
marijuana law was approved here by only a narrow margin, but he said
attitudes toward the drug are changing. More to the point of 2016,
Tvert said, the dynamics will be different three years from now. "It
will be a presidential election year and we tend to see a much larger
turnout, including a lot of younger voters and others who tend to be
supportive of ending marijuana prohibition," he said.

But Maricopa County Attorney Bill Montgomery promised to do what he
can to kill the initiative. "We will not get caught flat-footed and
late to the issue again," he said, a reference to the fact there was
no organized opposition to the 2010 medical marijuana measure.
Montgomery also promised to work to "counter the misinformation relied
up by the Marijuana Policy Project to mislead the public about the
nature and impact of drug legalization."

The initiative envisions treating marijuana like alcohol: Regulated by
the state, available to adults and sold only at state-licensed
retailers. Tvert said it could piggy-back on the medical marijuana
laws which have so far allowed nearly 100 state-regulated but
privately owned dispensaries to open. He also said the Colorado law
could provide a good model. It permits Colorado residents to purchase
up to an ounce of marijuana at any one time; those who live elsewhere
can obtain up to a quarter ounce.

What spurred the move is that Department of Justice memo providing
"guidance" to federal prosecutors on the issue of whether to pursue
retailers in states which allow the recreational use of the drug.

In a four-page memo, James Cole, the deputy federal attorney general,
acknowledged that sale and possession of the drug remains a federal
felony. But Cole told prosecutors they should, in essence, leave those
issues to the states when only small amounts are involved.

Cole said, though, federal prosecutors will defer to state decisions
only if there are safeguards in their programs, like preventing the
sale to minors and ensuring the drug is not diverted to other states
where possession for recreational purposes remains illegal.

Tvert, who now lives in Colorado, said he believes the system there -
and the one envisioned for Arizona - will meet the Department of
Justice concerns. What it will not do is satisfy state and local

Montgomery already has dismissed the Justice Department memo as
legally meaningless. He said as long as the federal statutes remain on
the books he cannot ignore marijuana sale or use, whether for medical
or recreational purposes.

In fact Montgomery already is trying to convince the state Court of
Appeals to void the 2010 medical marijuana law as preempted by federal
statutes, regardless of the Cole memo. Similar arguments he made -
some supported by Attorney General Tom Horne - were rejected by a
trial court judge.

Tvert said the issue has parallels with alcohol which at one time was
also prohibited by a federal constitutional amendment. "Marijuana
prohibition has been just as ineffective and inefficient as alcohol
prohibition," he said. Alcohol prohibition also proved widely
unpopular and eventually was repealed. "We believe voters around the
country and in Arizona are ready to adopt a more sensible policy,"
Tvert said. But Tvert said this does not mean marijuana would be as
widely available as liquor at every convenience store. "These would be
retail marijuana stores," he said, similar to the existing dispensary
system for medical marijuana. The idea of strict regulations is
designed to meet what Cole said are the guideposts for when the
federal government would prosecute and when it would, in effect, look
the other way. And that goes beyond the question of distribution to

For example, Cole's memo said one of the provisions federal
prosecutors should look for in state laws is preventing
state-authorized marijuana activity from being used as a cover for
trafficking of other illegal drugs. Other concerns include preventing
violence and the use of firearms in cultivating and distributing
marijuana, and preventing "drugged driving" and other public health

That last issue presents some interesting problems under current
Arizona law.

Arizona law now specifies that someone with any amount of a metabolite
of marijuana in the blood is considered legally impaired.

Prosecutors have conceded in one case making its way through the legal
system that some metabolites remain in the system for days after
someone uses the drug - and long after they might be considered
impaired. But they are arguing to the Arizona Supreme Court that the
state is entitled to make evidence of metabolites the grounds for
charging someone with driving while impaired.

The high court has not issued any rulings on that issue.
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