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Tuesday, November 29, 2011

Physician Perspective: I-502 Betrays Medical Marijuana

Posted by on Tue, Nov 29, 2011 at 11:16 AM

This guest post is by Richard Bayer, MD, who was the chief filing petitioner for the Oregon Medical Marijuana Act in 1998. He opposes Washington State's Initiative 502, which would legalize, tax, and regulate marijuana. He is concerned that I-502's DUI provision will spread to Oregon. - Eds

It is natural for patients who rely on medical marijuana to desire legalization as I-502 claims. Regrettably, I-502 contains a law called per se Driving Under the Influence of Cannabis, or per se DUIC, that traps innocent drivers including medical cannabis patients.

Currently, the crime requires the state prove impairment. But under I-502, the crime becomes a blood test. Alcohol is an unusual drug because blood and breath levels correlate with impairment. There is no equivalent test for cannabis. Currently, law enforcement proves impairment by field sobriety testing using the laboratory to support the prosecution. This will change with I-502 when having the wrong THC level becomes the crime.

I-502 is a sixty-six page ballot initiative and Section 3 mandates blood measurement of the psychoactive parent compound THC, rather than non-psychoactive metabolite carboxy-THC. (The I-502 campaign has issued a fact sheet in defense of the DUI provision.) Patients who use cannabis regularly develop tolerance to the psychoactive or behavioral effects of marijuana even though blood THC levels may never drop to zero. A major flaw in I-502 is the sponsors failed to test any doctor-approved medical marijuana patients to determine how tolerance affects blood THC concentration.

Doctors' reports from Colorado and Washington State guarantee I-502 will wrongfully convict unimpaired drivers, particularly medical marijuana patients. Impairment from cannabis smoking resolves within four hours but doctor-examined patients show blood THC can remain several times the limits allowed by I-502. Reports of background THC levels from unimpaired patients show that THC can be higher than 15 nanograms.

Background THC that causes no impairment is not psychoactive but will result in convictions with license suspension. This is because THC blood testing on regular users of marijuana cannot accurately determine impairment. Sections 31 through 37 of this lengthy initiative explain I-502's limit of 5 nanograms is only for adults who have blood drawn within 2 hours of the alleged crime, otherwise trace amounts create a zero-tolerance crime—even for patients. Nonusers register several nanograms simply from passive exposure to marijuana smoke.

From a medical perspective, I-502 flunks basic science. The zero-tolerance DUIC for some drivers and an arbitrary THC limit for others snubs medical marijuana patients. No one wishes drivers to be impaired but fairness demands proper medical research before writing a law. Opponents to I-502 believe the current DUIC law is effective and should be enforced, particularly since prosecutors boast a 95 percent conviction rate.

The I-502 campaign quotes Dr. Franjo Grotenhermen who did not test patients in his 2005 paper. When asked for an update in 2011, Dr. Grotenhermen explained, "[T]here is no good correlation between THC concentrations in blood and impairment; blood tests can not accurately show impairment. If you base your test only on THC and take for example a limit of 5 ng/ml, you will miss many occasional users with a lower concentration who are actually impaired, and find several heavy users as impaired who are indeed not impaired."

This means while research on regular users including doctor-approved patients is pending, drivers in Washington State will become medical>guinea pigs to determine whether I-502's DUIC gamble will improve or worsen public safety.

I-502 creates injustice for drivers and betrays medical marijuana patients. Being wrongly convicted of any crime is tragic and causes disrespect for all laws. Please read I-502 in its entirety before casting your vote. We should not harm the innocent while rushing legalization of marijuana. For more information, see


Comments (34) RSS

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Posted by Ribben on December 28, 2011 at 9:22 PM · Report this
NotSpicoli 35
The DUI-Cannabis provisions under I-502 apply in only one circumstance: impaired driving. Probable cause based on impairment to be stopped, followed by reasonable observations of impairment, and specifically impairment caused by drugs, will be required prior to a blood draw.

The DUI-Cannabis provisions under I-502 apply in only one circumstance: impaired driving.

If, and only if, a driver is stopped with probable cause for suspected impaired driving, and there are reasonable grounds for believing that a driver is impaired, and reasonable grounds to believe the impairment is caused by marijuana or a drug other than alcohol, the officer may arrest and a blood test may be required. Blood tests can only be done when there is sufficient evidence that impairment is caused by a substance other than alcohol.
Posted by NotSpicoli on December 22, 2011 at 5:12 AM · Report this
@23 seandr - you're wrong. the initiative would license private stores.

@25 cannacare - do you ever wonder why more people don't listen to you? it's because of your extreme rhetoric. you sound irrational even if you might have a legitimate point. "Do you support throwing all medical cannabis patients in jail for DUI? That's what this bill does. How do YOU defend that? We should all go to jail for "the better good"?" that's just not right. the initiative does not throw ALL medical cannabis patients in jail for DUI. DUI laws now don't currently throw ALL drunk drivers in jail, only the ones they pull over and suspect of driving under the influence and then do a breathalyzer. if the bill passes, they're not knocking on doors and bringing you to jail. only patients (or anyone uses cannabis) who first actually get pulled over, then are suspected of driving under the influence, then have their blood drawn. i'm sorry, but that is not ALL patients. try your argument in a more rational tone and with better logic and people might pay attention, at least other rational people, because i know you are a smart person who means well.
Posted by westseattlered on December 2, 2011 at 5:16 PM · Report this
Supporters of I-502 continue to disregard the primary premise of Patients Against I-502, that being: "It is unethical and reckless to write a law that penalizes innocent people."

This disregard has caused a lot of animosity and division amongst cannabis advocates. The debate should be about the specifics of the bill. Engaging in speculation, or condemnation of assumed motives does not move the conversation forward.

As a core member of Patients Against I-502, I can tell you with confidence, Dr. Bayer, or any other core member, does not oppose 502 for personal gain. This is strictly an effort, based on ethics, reason, and sound science. Having gone through the bill, we are concerned for the potential disastrous outcomes if 502 were to pass.

To say "we can fix it later" is not a well thought-out assumption. We are talking about a DUI statute here. Expecting lawmakers to relax the proposed 5ng/0ng limits would be like asking them to lift the blood alcohol content from 0.08 BAC to 0.10, or to petition the public for such a change. I think we can all agree, this is not likely to happen - ever!

We have made the case that existing law is adequate to charge impaired drivers (see links below). The DUIC provision in 502 is not needed. Scientific studies all point to the fact that no accurate measurement for THC in the blood can consistently prove impairment.

Washington State has had legal MMJ since 1998. The issue of impaired driving was not a concern, at least not to the degree that anyone would suggest an unproven standard with such an invasive method of testing, such as a blood draw.

New Approach Washington has made an issue out of something that was not. They reference the polling from the failure of California's Prop 19 to make their case to impose a DUIC statute. The poll they reference was from the 54% of "no" votes, of which 13% listed green DUI as a concern. They do not show you the polling numbers from the 46% of "yes" votes, which likely would show a much lower concern, if any.

New evidence has now come out that increased cannabis use has resulted in less traffic fatalities: <… >. This makes NAW's claims for the need of DUIC less credible.

Finger pointing, blame, and in-fighting is a distraction from the real problem at hand; the potential abuse of new police powers to further profile and incriminate cannabis users, recreational or medical.

We have to remember, we are all on the same team to end prohibition on cannabis. When we come out on the other side of this debate, we need to be prepared to be friends, once again; to unify our efforts to craft laws that are reasonable, and based on sound science.

Washington DUI Fines & Sentencing:
<… >

RCW 46.61.502 - Driving under the influence:
<… >
Posted by Troy Barber on December 2, 2011 at 11:08 AM · Report this
Ever heard of the "pot fairy?" Where does your cannabis come from? Currently, recreational users in our state aquire it from the "pot fairy." You could call them "Ma and Pa." , or it could be weed that was smuggled in from other countries, or grown by gangs right here. The point is, that it has an origin, and most recreational users do not care about that source, rarely think about it. This post is for the ":Ma and Pa" fairy's, and the few of you recreational users that may know them personally, and the people that have a small personal grow. Read the sections of I-502 concerning unauthorized growing and the forfeiture laws. In the forfeiture section, viable cannabis, as well as property, can be sold, and the seizing agency will get to keep 90% of the proceeds. Small personal grows, as well as Ma and Pa's that don't register with the state could then become the target of local law enforcement to seize and then "sell that which is not required to be destroyed by law and which is not harmful to the public". If I-502 passes, it is most likely that it will be federally pre-empted and the distribution centers are unlikely to materialize. What recreational users will be left with is the ability to legally possess one and a half ounces of cannabis, our local law enforcement will have been granted new tools to search and sieze personal grows and Ma and Pa grows, and you will be left with the pot fairy. Also, if you get pulled over for a tail light out after you've visited the pot fairy and you car smells like pot, that is reasonable grounds for assuming impairment, and you will most likely not be under 5 nanograms when they draw your blood and anaylize it. Have you ever had yours tested, and are you ready to gamble that this does not affect you recreational users? That will leave you with an expernsive mess that will take years to recover from, even if you were not impaired when you drove. No on I-502
Posted by seawonpr on December 2, 2011 at 8:45 AM · Report this
alapoet 30
Any law under which cultivation busts will continue -- and under which busts for possession of more than 1.5 ounces continue -- and under which DUI busts of unimpaired patients will be instituted -- is not a "legalization" measure.

Dr. Bayer is entirely correct, both to be concerned, and to express that concern publicly.
Posted by alapoet on December 1, 2011 at 12:32 PM · Report this
Dr. Bayer has not made a dime off patients in years and in fact, he is an expert court witness for medical marijuana patients, a service which he provides for FREE. Any interests he has are purely ethical and he has absolutely ZERO financial interests in the passage or defeat of I-502. Can New Approach Washington say the same for themselves?
Posted by Patients Against I-502 on December 1, 2011 at 12:23 PM · Report this
Under i502's proposed "faux legalization", as little as 1 and 1/2 ounces of cannabis or growing one plant in your garden is a State FELONY. And driving with THC, active or inactive in your bloodstream, can mean an automatic conviction for DUIC without being impaired, and without a legal defense.
Posted by ChronicKindness on December 1, 2011 at 10:34 AM · Report this
seandr 27
@26: Legislators? Once this law passes, police and prosecutors get to decide who goes to jail, not legislators, and law enforcement would be thrilled to puff up their numbers with bogus DUIs.
Posted by seandr on November 30, 2011 at 9:53 AM · Report this
@22 I don't really get the sense that the sense that the leg is made up of hardcore drug warriors. Hell just last session they passed some nice reforms to the medical marijuana law. Don't exactly strike me like a bunch that just want to throw people in jail.

They might a bit hesitant to act on issues like this now, but if there is voter support for legalization I can't see why they would not support reforms.
Posted by giffy on November 29, 2011 at 11:41 PM · Report this
@18.....find a site, whether it's the Seattle Weekly or anywhere else, where anyone is supporting this terrible piece of legislation. Throw it up here....let's see me out on it.

Do you support throwing all medical cannabis patients in jail for DUI? That's what this bill does. How do YOU defend that? We should all go to jail for "the better good"? Guess'll be going with us. Recreational users will face the same consequences. The only people that win are the attorneys and the system taxing us.

The only time the ACLU and Allison Holcomb have supported cannabis legislation it's been to take away the rights of patients. They're doing it again and we're sick and tired of it. Allison thinks she's going to get elected (or appointed) to public office by supporting the governor in taking away our rights.

I never speak out on legalization. Without a very clear definition of the word, it has no meaning. It's like defining "freedom". This country used to define the word "freedom". Now we aren't in the top ten in the world (actually #17) and we incarcerate more of our population than any country in the world.

If you want to ask for a law legalizing marijuana, don't make it one that causes more harm that good for those who chose to use it. That's what I-502 does....and the sponsors of the bill are well aware of that.

Posted by CannaCare on November 29, 2011 at 10:08 PM · Report this
LOL. Most alcohol tests for impairment...e.g., field sobriety tests and breathalyzer are not based on real science either.

Everyone who gets in a accident will be blood tested for pot. DUI's lawyers will make a mint.

Posted by bornhere on November 29, 2011 at 9:28 PM · Report this
seandr 23
Since we'll most likely have a redo of a legalization initiative, here's another bit of feedback - don't dictate the structure of the market by saying it will be sold in state run stores. For one thing, we just voted down that archaic system for alcohol. Second, economics are a big reason to legalize, so let's step out of the way and let the market naturally and organically and efficiently evolve, and simply tax and regulate it in whatever structure it takes.
Posted by seandr on November 29, 2011 at 7:56 PM · Report this
seandr 22
@19: The state has been happy to jail gazillions of people for sale and possession, they'll be happy to jail them for having THC in their blood the next morning on their way to the coffee shop.

And I can't imagine any realistic scenario in which this gets fixed.

Time to face facts - Sensible Washington was right, and Alison Holcombe was wrong. I-502 should and will go down, and a pure decriminalization initiative/bill will eventually pass, with legislature setting tax laws and fine tuning DUI laws as needed and as the science in that area improves. (Keep in mind, scientists can not administer marijuana in federally funded research, which severely hampers their ability to assess acute cognitive impairments as a result of being high.)
Posted by seandr on November 29, 2011 at 7:41 PM · Report this
Joe Szilagyi 21
@18 "Every other website is tearing this initiative to shreds."

Name them.
Posted by Joe Szilagyi on November 29, 2011 at 6:56 PM · Report this
Legalization = criminalization. Good thought. Who's the loon?
Posted by CannaCare on November 29, 2011 at 6:35 PM · Report this
@16 Do you think a state that overwhelming passed medical marijuana and hypothetical approved full legalization would not be able to compel a fix if thousands of people where being thrown in jail for this?

And jesus christ @18 calm the fuck down. You sound like a loon.

Posted by giffy on November 29, 2011 at 6:21 PM · Report this
Truly incredible. Here are all the illegal stoners ready to throw us patients under the bus so they don't go to jail for possession.

Here are all the lies.....

"Thousands of recreational marijuana users get arrested....leaving them with a lifetime criminal record".

The truth is that they'll now have at least one DUI's on their record which is much worse than a misdeanor pot possession charge. Each DUI will cost them approximately $10,000. Their car will be impounded, they will be forced to do drug and alchohol education classes and their insurance will go through the roof. They will still have a drug related conviction on their record and there goes their student loans and it will follow them around on any job interview they go on. They will have a "lifetime criminal record". These people are lying about the outcome of this bill.

"We can fix it later".

Are you friggin NUTS? How do you plan on doing that? This is tantamout to repealing the tobacco tax. FAT FRIGGING CHANCE! This is the NAW position....screw us all now and then somehow fix it some time in the future. Don't bother to do it right now, and don't worry about the consequences that patients, and others, will have to go through....just get SOMETHING passed. This is inane reasoning.

"The cops need probable cause to test you"

You're kidding me, right? How about...."you were weaving"..."your tailight is out"...or my favorite "I smell pot". You'll have your car impounded, you'll be taken to the hospital. If you test at 5 ng/ml, you will have NO defense in court....and every patient in Washington WILL be charged with DUI. Chances are you'll never see your car again. Impound fees will be more than your car is worth unless you work at Microsoft.

"And what is the solution? Legalize marijuana and allow potentially impaired drivers on the road because we don't have "enough" data to determine what constitutes impairment? How long do we have to wait to get that data? And what reason do we have to legalize pot until we know for certain how high you have to be before your driving is impaired?

Here's an idea. If you like smoking pot, take the bus." take the friggin bus!

The truth is that we have all the scientific data we need and it's been done by the National Institute of Drug Abuse, the National Highway Safety Commission....and just about everyone else....and they all came up with the same results.....YOU CAN'T JUDGE "IMPAIRMENT" with a blood or urine test for ANYTHING except ALCOHOL. That's what the tests all tell us so why do we want to ignore those tests that have been around for decades. These are tests that have been done in the US and around the world. These test span the last twenty five years. How much more testing do you think we need to come up with the same results.

"Perfect is the enemy of progress."

So we should accept a terrible bill because it impeads someone elses idea of progress? We should criminalize every medical cannabis patient in Washington because we don't want to impead some idiots idea of "progress". Criminalize some for the good of many? Sure...I'll go along with that if you'll agree to be the "some" and go to jail so I can be safer. But you don't get to make the decision FOR ME that I should go to jail so you can have legalized pot.

How about we don't criminalize ANYONE! THAT is progress....not this horse-shit initiative!

We can all agree that a huge percentage of the population of Washington smokes or not. If you can show me all the news stories about how marijuana smokers are causing hundreds of traffic deaths on our highways, come back and talk to me. The truth is, they aren't....or trust would be front page news. So this initiative is trying to fix a problem that doesn't apparently exist, while criminalizing everyone who smokes. Show me the statistics on the problem and we can discuss the solution.

This law is a set-up, pure and simple. If you're scared of all the stoned drivers on the road today....take a bus. Me....I'm worried about all the drunk drivers, not the stoners.

Stop and ask yourself why the Stranger is the only site that has people defending this horrendous bill. This comment section looks like it's populated by all Dominic Holden's friends at NAW. Every other website is tearing this initiative to shreds.

Steve Sarich

Posted by CannaCare on November 29, 2011 at 5:55 PM · Report this
502 is a scam. but what did you expect? it came from highly connected political players. and everything that comes out of that system is a scam & a disaster. so is 502.
Posted by philosophy school dropout on November 29, 2011 at 4:47 PM · Report this
seandr 16
@1 & @13: How would this ever get fixed?

There is no way an initiative to remove this clause would get enough signatures, let alone pass, and no politician is going to take up this cause.

This would be a permanent mistake, and the result of this initiative is a net loss of civil rights, not a net gain.

Any legalization initiative would need near-unanimous support from weed-friendly voters to pass, and I-502 isn't going to pass. Not a huge deal, the next initiative a few years later probably will.
Posted by seandr on November 29, 2011 at 4:33 PM · Report this
undead ayn rand 15
@4: "Meanwhile thousands of recreational marijuana users get arrested in this state for minor marijuana crimes each year, leaving them with a lifetime criminal record."

Yup. Segregating medical marijuana and casual users isn't the solution either.
Posted by undead ayn rand on November 29, 2011 at 2:47 PM · Report this
Will in Seattle 14
@12 how about the cops just stop you for driving erratically, weaving in and out of traffic, going way way slower, and having clouds of smoke and tin foil for windows ...

Oh wait, that's what they do right now to catch stoners driving.
Posted by Will in Seattle on November 29, 2011 at 2:01 PM · Report this
1) We can fix it later.

2) The cops still need probable cause to suspect impairment before they can test you.
Posted by giffy on November 29, 2011 at 1:58 PM · Report this
DUIC should stand ... if there's a legitimate way to evaluate impairment. Measuring THC in the blood is absolutely not such an evaluation tool.

Even if we reject Dr. Bayer's assertions about tolerance (in my long-ago experience, regular users needed less weed to feel effects, but were much better able to deal with those effects than newbies), this sort of test would be the wrong approach. THC metabolizes very slowly, and it remains in the tissues long after any effects of the drug have ceased. We're talking measureable THC in the blood for days, weeks, even months after last toking up.

It's conceivable that something measurable would correlate well with demonstrable impairment. as blood alcohol does with drinking, but no one has found it yet. What's clear, though, is that THC isn't the appropriate test.
Posted by N in Seattle on November 29, 2011 at 1:54 PM · Report this
seandr 11
Fuck this initiative - I'd rather get busted for possession of weed than get a bogus DUI.

I ain't voting for it.
Posted by seandr on November 29, 2011 at 12:59 PM · Report this
Westlake, son! 10
I hope the DUI provision _does_ spread to Oregon. Shut the fuck up. Driving is a privilege affirmed by a license.

Take a cab. Order grocery delivery. Take the bus. Just don't endanger my health while you solve your own medical problems.
Posted by Westlake, son! on November 29, 2011 at 12:49 PM · Report this
Will in Seattle 9
Just think, if this Doctor had his way, Beavis and Butthead could drive stoned.

.... hmmm.
Posted by Will in Seattle on November 29, 2011 at 12:44 PM · Report this
keshmeshi 8
And what is the solution? Legalize marijuana and allow potentially impaired drivers on the road because we don't have "enough" data to determine what constitutes impairment? How long do we have to wait to get that data? And what reason do we have to legalize pot until we know for certain how high you have to be before your driving is impaired?

Here's an idea. If you like smoking pot, take the bus.
Posted by keshmeshi on November 29, 2011 at 12:41 PM · Report this
Some Old Nobodaddy Logged In 7
Oh, look! Someone let the purity trolls back.
Posted by Some Old Nobodaddy Logged In on November 29, 2011 at 12:20 PM · Report this
I'm voting NO on I-502! The blooding testing is stupid!! I want to see the legalization of marijuana like some of you, but all your doing is trading possession of marijuana offenses for DUI offenses. I make the assumption we will see sky rocketing DUI statistics, and the war on drug crusaders will use this data as propaganda. We base the legality of marijuana on Science. We must base DUI cases in relation to Marijuana on Science not an arbitrary number of 5 ng/ml
Posted by james98155 on November 29, 2011 at 11:59 AM · Report this
The solution to Dr. Bayer's concern seems to be to amend the state 'medical' marijuana law to require proof of actual impairment for authorized patients.

Meanwhile thousands of recreational marijuana users get arrested in this state for minor marijuana crimes each year, leaving them with a lifetime criminal record.

Posted by mcnulty on November 29, 2011 at 11:42 AM · Report this
Simply Me 3
Put forth and iniative invalidating the DUI law. It will pass when people realize they can be convicted for just being near
a pot smoker.
Posted by Simply Me on November 29, 2011 at 11:36 AM · Report this
Will in Seattle 2

"I won't make as much money if this passes, and I'm all about maximizing profit for the 1 per cent at the expense of the 99 per cent."
Posted by Will in Seattle on November 29, 2011 at 11:32 AM · Report this
Baconcat 1
Perfect is the enemy of progress.

If you see a problem, anticipate having to put forth a fix for it. Otherwise when you want to restructure existing laws or have to fight to reinstate protections federally you'll only hear "well, didn't your state reject a marijuana measure" and have to slog through years of fights trying to justify that opposition is mushy justifications like "well, we didn't want to fix that provision so we just attacked the whole measure".
Posted by Baconcat on November 29, 2011 at 11:20 AM · Report this

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