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Oregon Seeks to Avoid Washington’s Marijuana Legalization Mistakes

Oregon benefits from the successes in Colorado.

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Colorado and Washington State made history in 2012 by legalizing the personal possession of marijuana and establishing recreational marijuana markets. Both states also allow for medical marijuana, but the effect legalization has had on medical marijuana patients in those states is vastly different. As Oregon seeks to legalize marijuana in 2014, it benefits from the successes in Colorado and fights to avoid the mistakes made in Washington.

Successes in Colorado

In Colorado, activists behind the  Amendment 64 campaign to legalize marijuana created a legalization framework that respects Colorado's highly successful medical marijuana program. Existing dispensaries are given first dibs at the new recreational marijuana business licenses and regulations for the recreational market will mirror some of the medical regulations. A single state agency — the Marijuana Enforcement Division — will oversee compliance for both medical and recreational businesses.

Limits for the recreational consumer in Colorado are also not very different from the medical limits in place. Both medical and recreational consumers may cultivate six plants for personal use, but medical consumers may possess two ounces away from the home, while recreational consumers are held to a one-ounce limit away from home. Thus, the only strong incentive for a recreational consumer to "get medical" without a true medical need would be to avoid the 15 percent excise taxes and 10 percent sales taxes Colorado voters  just approved for recreational marijuana shops.

Activists in Colorado also refused to include a per se DUID standard for marijuana in their Amendment. Lawmakers in Denver had been pushing a bill that would define 5 nanograms of active THC in the blood as per se proof of impairment, meaning absolute guilt, like blowing a .08 on an alcohol breathalyzer. Given that the  science shows there is no reliable per se standard for THC like there is for alcohol, Amendment 64's campaign would not budge. Lawmakers remained unconvinced and eventually  passed a 5 nanogram bill, but tempered it with a "permissible inference" of guilt—meaning defendants can argue they weren't impaired at all, an important victory for medical marijuana patients who may be above that arbitrary limit when they first wake up.

But while medical and recreational marijuana are getting along fairly well in Colorado, the same cannot be said for Washington State, where medical marijuana is threatened with extinction by recreational marijuana.

The Mistakes in Washington

While Amendment 64 in Colorado did not include per se DUID,  activists in Washington felt the exit polling from California's failed Prop 19 showed that public fear of impaired driving would doom their Initiative 502. Plus, they were told in no uncertain terms that many of the high-profile supporters they had in law enforcement, including former federal prosecutor John McKay, would not support legalization without it.

Washington ultimately included a 5 nanogram per se DUID in Initiative 502. Medical marijuana advocates like  CannaCare’s Steve Sarich shrieked in opposition to the standard, which they felt would unfairly earn DUI convictions for unimpaired patients. Another issue of contention with Initiative 502 is its lack of home-growing provisions for personal use, claimed Anthony Martinelli of  Sensible Washington, a legalization group that had tried and failed to get an initiative on the ballot in 2010 and 2011. Sarich quickly formed "No on I-502" and made national news as some of Washington's most dedicated pot smokers were opposing legalization.

Part of what made the Washington measure so different was the context in which it was written. While Colorado has had a well-regulated state  medical marijuana enforcement division, a patient registry, and commercial dispensaries for years, Washington's medical marijuana market has been an unregulated, unregistered, wink-and-nudge situation. Dispensaries popped up, claiming to be caregivers for patients,  exploiting a loophole that allows a caregiver to provide cannabis to any one patient. So long as patients approached the counter one at a time, the clerk was acting as a caregiver for that one patient—wink wink, nudge nudge.