Marijuana Legalization: Prop 19 Folks Say They’ll Be Back in 2012. Here’s Some Advice.

In the wake of last week’s Prop 19′s defeat, California marijuana legalization activists are vowing to have a new marijuana legalization measure on the ballot for the 2012 election.  Both sides of the Prop 19 debate admit that the major problem with the law was the language of the initiative itself. We here at Johnny California have been saying that since the beginning of the Prop 19 debate (well, not really because we’ve been on hiatus for months and months – we even sat out this entire election).  But we’ve been saying it to people in the real world, and while we voted “Yes” on Prop 19 we did it while holding our nose – or at least holding one nostril.   Here’s some advice for whoever drafts the bill next time.

Get Advice From Criminal Defense Lawyers Who Actually Deal With Marijuana Offenses on a Regular Basis. It seemed to us that the folks behind Prop 19 had little to no input from criminal defense attorneys who deal with misdemeanor marijuana offenses, but it would have been a good idea to get some folks with experience to chime in.   There’s public defenders and private lawyers who deal with these cases every day in every criminal court in California.  Wouldn’t it be a good idea to get their opinion?  I’m not just talking the big cases either, also get input from the young lawyers in the trenches doing the weed misdemeanors and low level felonies, and a wide variety of opinions would be good too ant not just a weed expert from Mendocino or Alameda counties where the laws are relaxed, get a Los Angeles drug lawyer, or some poor slob who has to try defend medical marijuana cases in Riverside or San Bernardino County, they may have some insight on what needs to be in a new law to get this thing passed.  It seemed that these folks were completely shut out of the process.

Driving While High – Gonna Need New Laws. It is well known among prosecutors and defense lawyers that proving DUI for driving while under the influence of marijuana is very difficult.  In criminal court, marijuana DUI cases are routinely dismissed or negotiated down to less serious offenses, once this happens, the DMV has no remedy to suspend someone’s driver’s license (in DUI alcohol cases, the DMV can still suspend or restrict your license even if you get your court case dismissed – it happens all the time).  Prop 19 had no Vehicle Code provisions in place to attempt to deal with marijuana DUI.   No, we probably don’t need new DUI laws on the books, but by ignoring this issue, the Yes on 19 campaign really opened themselves up to attack

City Ordinance Insanity – Prop 19 was all over the place as far as city ordinances go. Cities and counties were not allowed to restrict personal possession of under an ounce or growing marijuana in 25 square feet or less of private land or a private residence. But cities and counties could tax, restrict, limit, and completely forbid anyone from stepping out side of their homes with marijuana on their breath (well not really – but close).  There were really troubling  sections of the proposed law which which seemed to allow cities and counties to individually regulate the standards of who is qualified to transport, grow or possess more than one ounce of marijuana.  Here’s an example:  Let’s say that the city of Berkeley allowed storefront sales of marijuana and allowed qualified store owners, employees, or growers to transport up to 50 pounds of marijuana at any one time.  Let’s say that the owners of a store in Berkeley also opened a store in West Hollywood, which had a similar local ordinance in place.  They wanted to ship product from their Berkeley store down to West Hollywood.  They obviously can’t take it on a plane (federal law), they also obviously can’t ship it via UPS (federal law), so the qualified employee puts the 50 pounds in his car and dries down to Los Angeles, he gets pulled over for speeding somewhere in Kern County where a local ordinance is in place saying you are allowed to possess no more than one ounce of marijuana, period.  What happens to this guy?  Does Kern County’s ordinance control?   Of course not, state law should control.  The drafters of Prop 19 had some broad language that attempted to deal with this problem, but it was big enough to drive a truck through. Unfortunately, much of Prop 19 gave too much local control to individual cities and counties.  Don’t get us wrong, we like local control, but not when it leads to confusing and contradicting enforcement.

There’s more they need to fix with this law, we’ll get to that later.  But this advice should keep ‘em busy for awhile.