The Legal State of Cannabis in Colorado and Washington

Nov 16, 2012 - Tara Kohli, Legislative Outreach Director

            On November 6^th, the voting public of Colorado and Washington chose legalization over prohibition. The response from the federal government remains to be seen; judging by what happens in medical marijuana states, Colorado and Washington are facing an arduous struggle. (Read what our Executive Director, Patrick K. Nightingale, Esq. has to say on the subject here). Whatever the future holds, the passage of these bills is a cause for celebration for supporters of reform everywhere; the victory is yet another signifier of changing American attitudes toward cannabis. But what do these bills actually do?

            The stated intent of the Washington bill is to free up law enforcement resources, eliminate the black market, and generate tax revenue to put toward education, health care, research, and substance abuse prevention. These noble goals are to be accomplished by the creation of a state-regulated market for marijuana. Players in the market will be classified as either producers who grow the organic materials, processors who purchase raw product to turn into usable goods, and retailers who purchase the goods for sale to consumers. Ladies and gentlemen, it is a state-run cannabis conveyer belt.

            However, Washington has not taken a free-for-all approach to this regulation. Only adults are allowed to purchase or consume cannabis. Individuals will not be permitted to grow plants at home, even if only for personal consumption. One may only purchase or possess, at any given time, up to an ounce of dried herb, up to 16 ounces of infused edible solid foods, or up to 72 ounces of infused edible liquids. Product will be tested regularly and tracked by lot numbers. No marijuana packages may be opened “in view of the general public.” The liquor board will be entitled to set maximum numbers of retail outlets (although they must ensure “adequate access” to stores when doing so). The 5.00ng/mL THC to blood concentration threshold for driving under the influence is considered too low by some medical marijuana advocates. The message coming from Washington is pretty clear: we don’t like you imbibing, but if you insist on doing so, you do it at home and you get it from us. But it’s legal!

            The Colorado law sets up a structure very similar to the market created in Washington, with a degree of separation between growers and sellers, testing requirements, an age requirement, and so on. The limit on possession is set at one ounce as well. An important distinction between the laws, however, lies in that Colorado allows the individual to grow up to six plants at one time. While only three of these plants may be mature at one time, it is a significant step above the prohibition on home cultivation ensconced in the Washington bill. The Colorado law also separates out industrial hemp to provide for the regulation thereof separately. The biggest difference between them is one, not of substance, but of form: the Washington law is merely a bill, while the Colorado law is actually an amendment to the Colorado state constitution. The very charter that gives Colorado sovereignty as a state now affirms the right of the individual to cultivate, purchase, and consume marijuana.

            The bills are available online; here is Colorado and here is Washington. We encourage you to read them; if you have questions about them, please email pittsburghnorml@gmail.com or leave your questions in the comments below.

Colorado and Washington Legalize Recreational Marijuana Use

Nov 08, 2012 - Patrick K. Nightingale

While President Barack Obama was busy winning another four years in the White House, another important vote was taking place in three states. Colorado, Oregon, and Washington were voting to legalize recreational marijuana use.

The outcome: Colorado and Washington voted to legalize marijuana while Oregon voters rejected a similar measure.

For those of us who support the legalization of marijuana for medical and recreational use, this is an important step in the process. It shows that people are finally realizing that this could be a step in the right direction for the United States.

On the other hand, the federal government has yet to budge. At this time, they still consider marijuana an illicit drug – and this is not set to change anytime in the near future.

So, where does this leave us?

Although the people of these states have spoken (through their right to vote) there is a long road ahead. Getting the federal government on board is not going to be a simple task. In fact, many feel that it will be downright impossible.

Kevin Sabet, a former adviser to the Obama administration’s drug czar, had this to say:

“They are facing an uphill battle with implementing this, in the face of presidential opposition and in the face of federal enforcement opposition.”

On the other side of things, there is the argument that this was a necessary first step in winning the long-term battle.

Despite federal opposition, Colorado and Washington allowed residents to vote to legalize the possession and sale of marijuana for recreational use.

States still have Rights

Even though the federal government may be opposed to the legalization of marijuana in these areas, it is important to remember that each individual state still has the ability to make its own decisions.

For example, these states are free to eliminate their own penalties for marijuana possession and use – even if the federal government does not agree.

The problem that worries supporters is that U.S. Attorneys could send letters to state governors, warning that they should not implement any changes to regulate recreational use or tax the stores that would sell the drug.

In Colorado, it was well known that Governor John Hickenlooper was opposed to legalization in his state. However, now that the vote has been cast he said he will respect the outcome.

Back in Time to the Days of Alcohol Prohibition

It is safe to say that most of the people reading this were not around during the alcohol prohibition period of the late 1920s. However, there are some similarities.

For example, these victories in Colorado and Washington are similar to individual states repealing their own prohibition laws nearly 100 years ago. As each state made its own changes, the pressure to repeal federal prohibition continued to grow.

Will history repeat itself? Will the legalization of marijuana eventually win out, much in the same way as alcohol prohibition?

If nothing else, it is easy to see that this is a move in the right direction. I’m happy to read and respond to your comments and opinions on the topic of legalized recreational marijuana use if you’ll leave them for me in the comments section below…

Watch all the election results Tuesday night 7:00 PM

Nov 05, 2012 -

Live video for mobile from Ustream

Please join us on The Russ Belville Show for Marijuana Election Night 2012 – Tuesday, November 6th – for live coverage of the most important votes in marijuana law reform history.  Coverage begins at 4pm Pacific Time on http://radicalruss.com, http://theweedblog.com, http://mikecann.net, and through http://www.ustream.tv/channel/radicalruss on your browser, tablet, and smartphone.  We’ll run through 10pm Pacific as polls close across the time zones.

Join your live hosts from RoLLaJaY Studios, Jennifer Alexander and Iva Cunningham from A Different View, with Russ Belville streaming in live from I-502 Headquarters in Seattle along with Jodie Emery and the Pot.TV crew.  Our internet stream will include live video reports from campaign headquarters in Seattle, Portland, and Denver, where voters in Washington, Oregon, and Colorado will be voting on statewide marijuana legalization.  We’ll also get reports from Little Rock and Boston, where voters in Arkansas and Massachusetts are deciding whether to enact medical marijuana laws.  Plus we’ll have reports from Helena, Montana, on the referendum to reject new medical marijuana restrictions, and from Detroit, Flint, Grand Rapids, and Ypsilanti, Michigan, where voters are deciding municipal initiatives to decriminalize marijuana or make it the lowest police law enforcement priority.

If you would like to be a sponsor of our live election night coverage, please email Russ Belville at russ@radicalruss.com with the subject “ELECTION NIGHT”.  In 2010, our live coverage from Oaksterdam for the Prop 19 legalization vote brought in a total of 50,000 live views and a peak of 5,000 as polls closed in California.  This year, with four time zones of poll closures and six statewide marijuana votes, viewership will skyrocket.  Your product, service, or message will be seen and heard by the most dedicated supporters of marijuana law reform, and they will be very loyal to the companies, organizations, and brands that support their mission of activism by sponsoring independent marijuana media.

Glass in PA - Know the law!

Oct 15, 2012 - Patrick K. Nightingale, Esquire

Glass in PA - Know the law!

On occasion friends and supporters have asked us if "head shops" are legal in Pennsylvania.  After all, if a piece of glass is clean who's to say what the intended use of said glass is?

The answer is both simple and unwieldy.  When viewing the "totality of the circumstances" should the person in possession of the item know that it is intended for the ingestion of a controlled substance?

The possession of drug paraphernalia and the distribution of drug paraphernalia is prohibited by Pennsylvania's Controlled Substances Act.  To determine whether an object is drug paraphernalia as defined by the statute "a court or other authority should consider, in addition to all logically relevant factors, statements by an owner or by anyone in control of the object concerning its use, prior convictions . . . relating to any controlled substance, the proximity of the object, in time and space, to a direct violation of this act, the proximity of the object to controlled substances, the existence of any residue . . . direct or circumstantial evidence of the intent of an owner, or any person in control of the object, to deliver it to persons he knows, or should reasonably know, intend to use the object to facilitate a violation of this act."  Packaging materials, instructional materials, national and local advertising and percentage of retail sales for a business are all relevant factors.

Consider the following scenarios:  A person in possession of rolling papers and loose leaf tobacco does not possess drug paraphernalia.  That same person with cannabis now possesses drug paraphernalia.  A sandwich bags next to the bread are just sandwich bags.  Sandwich bags next to a couple of ounces of cannabis are drug paraphernalia.  I recently represented a client who had a small case of glassware he was vending at Further Festival.  Officers observed him make a sale to someone openly consuming cannabis.  He was charged with Possession of Drug Paraphernalia and his glass seized.  Another client was vending glass at a county fair.  In support of the Affidavit of Probable Cause the detective attached glassware ads and pictures of glass being used from High Times and other cannabis culture publications.

The penalties for either possession or distribution of drug paraphernalia are relatively light - a misdemeanor of the third degree punishable by a maximum 1 year incarnation and a maximum $2,500.00 fine.  But it is a criminal conviction nonetheless.  Civil forfeiture is a given.  Forget about getting your inventory back.

For any of you considering adding glassware to your retail store I hope this at least gives you some idea of the risks involved. 

Patrick K. Nightingale

Patrick K. Nightingale is the Executive Director of Pittsburgh NORML. Mr. Nightingale is a former prosecutor and practicing criminal defense attorney it he greater Pittsburgh area.

Reflections on the 41st Annual NORML Conference

Oct 10, 2012 - Patrick K. Nightingale, Esquire

 Pittsburgh NORML’s Patrick K. Nightingale and Theresa Collins represented Pittsburgh at the 41^st Annual NORML Conference in Los Angeles, CA.  The Conference theme, The Final Days of Prohibition, seem closer than ever with seventeen states and the District of Columbia currently permitting medicinal marijuana.  Three states Washington, Oregon and Colorado have ballot initiatives calling for full legalization, and three more have medicinal bills going before the voters in Massachusetts, Arkansas and Montana. 

 The Conference brought cannabis reform advocates from across the Country, from motivated college students at UCF NORML to some good Texans from DFW NORML and TX NORML.  Famed travel writer Rick Steves talked at length about Washington’s efforts to legalize, and Conn. NORML Executive Director Erik Williams, a professional political consultant, shared his insights and experiences bringing both decriminalization and medicinal marijuana to Connecticut in a mere two years.  (Hint – a supportive Governor helps!) 

 While it was very inspiring to spend time with reformers in states such as CA, WA, OR and CO it seemed as if we literally lived in two different United States of America.  The difference?  The “ballot initiative.”  The ballot initiative permits motivated citizens to collect signatures of voters in order to place a legislative initiative before the voters.  We do not have ballot initiatives in PA.  Our legislative model reflects the federal model.  Remember “I’m Just a Bill” from Schoolhouse Rocks?  That’s us.  It’s not unconstitutional, it’s not illegal, and it’s not changing. 

 We have absolutely no intention of “reinventing the wheel.”  Networking with Rick Steves and Erik Williams alone was worth the cost of the trip.[1]  Mr. Williams stands ready to offer any and all support to legislative efforts in PA.  Any legislative efforts in 2013 will meet with hostility from social conservatives in the GOP who control PA’s House and Senate.  And Gov. “Frack ‘Em All” Corbett has vowed to veto any pro-pot legislation.  A lost cause?  Not when over 50% of Americans now support full legalization. 

 Our goals moving forward in 2013 are two-fold.  As NORML founder Keith Stroup said we at Pittsburgh NORML represent the Western PA cannabis consumer.  One goal is to bring our cannabis community together – from old heads to young rappers.  Cannabis unites us all.

 A critically important goal is to prepare our message of reform for the non-smoker.  Only 12% of the adult population regularly consumes cannabis.  We simply are not going to win over the non-smoking majority we need by clamoring for toker’s rights.  Instead we need a message of personal liberty, less government intrusion and fiscal responsibility.  Fiscal conservatives are coming around to the notion that the War on Cannabis is just a massive waste of money.

 Despite being the “hinterlands of cannabis reform” we stand ready to support any and all legislative efforts in 2013.  Please join us in our fight to protect you.

Patrick K. Nightingale, Esquire

Executive Director

Pittsburgh NORML