The Albuquerque Journal recently reported that State Senator Gerald Ortiz y Pino plans to introduce a constitutional amendment to legalize recreational marijuana in New Mexico. The Senator plans to model the amendment after the recently passed legislation in Colorado.
Both the Albuquerque Journal and Albuquerque Business First point out that the amendment will face some tough sledding and will likely not pass, at least in this first round and probably not in the form of a constitutional amendment due to the opposition on the Republican side of the aisle, including Governor Martinez.
The constitutional amendment, if approved by the house and senate, would bypass the Governor and go directly to the voters. If New Mexico were to follow national trends in terms of support of legalization, the amendment would likely pass.
Chances are the amendment will not pass through the house and senate with the current opposition. For purposes of a discussion on DUI, let’s say it does. How would might legalization affect DUI in New Mexico?
Will Legalization Lead to a Trend Toward Greater Marijuana DUI Prosecution? How Might Such a Trend Affect Legal New Mexico Users?
The challenges are pretty significant. There is really no adequate testing procedure or standards for measuring impairment by marijuana. Rather than address the issues from a fair, rational and scientific approach, the approach in a number of states point to the potential tragic irony of legalization.
Many states have taken a zero tolerance policy on THC and driving. This means if any THC is found in the blood, there is a presumption of impairment. Some have suggested making it a per se DUI (14 states so far with a number of others following suit). In essense, a per se violation means that if charged with DUI following any finding of THC in the blood, no matter how small and of what variety, there is no defense.
Fortunately, New Mexico has not gone that route and hopefully will not. However, it would not take much imagination to envision a change of course. Worse yet, New Mexicans on occasion travel to these other states where they might become ensnared in completely arbitrary marijuana DUI enforcement. Being from a friendly state like Colorado (and perhaps one day New Mexico) will not make one immune to these laws.
One might like to give these states the benefit of the doubt accepting that this is necessary for public safety. However, a more cynical and perhaps more realistic view would suggest the opposite.
There are a Number of Measurement Issues and No Established Guidelines on Impairment
THC can stay in the blood for up to 30 days. Generally, the effects of marijuana will wear off in a matter of hours. Active THC is what will cause impairment. Those states that have adopted per se DUI laws ignore the distinction between active and non-active THC. This means that drivers will be convicted of DUI despite the fact that they are most certainly not impaired.
The problems do not stop there. Active THC for an occasional smoker may not be detectable within hours of smoking or ingesting marijuana. However, active THC may show for much longer for regular users. This would include not only the daily recreational user but also the medical marijuana patient who must use daily thus punishing those deserving of the most protection.
The irony is that the trend toward legalization has created a equal reactionary trend toward greater enforcement of marijuana DUI. This includes the willful and knowing prosecution of innocent drivers. In short, legalization may very well lead to new and over-criminalization of marijuana use through the DUI laws.
Where are these laws coming from one might ask? In the past, among the greatest opponents of legalization have been the jail and prison industry, and law enforcement. With legalization comes fewer occupied beds in jails and prisons. It also means federal funding for local law enforcement would take a hit all things being equal. However, all things are not equal.
You can bet that neither the corrections industry nor law enforcement will take this lying down. If it is not possible to arrest folks for marijuana usage, they must find other ways to fill those beds and keep the wheels of justice churning. And as it turns out, this may be a more efficient and profitable approach since it potentially will catch far more citizens in the criminal justice net. So be it if innocent citizens are wrongly convicted.
As it stands, 55% of Americans favor legalization. The National Institute on Drug Abuse (NIDA) reports that as of 2010, over 17 million Americans smoked marijuana regularly. According to the Huffington Post, there were 750,000 marijuana arrests in 2011.
The greatest use of marijuana is among adolescents and young adults. Countless Americans, especially young Americans, have been criminalized as result of these policies. Unfortunately, it appears that legalization could if left to the devices of some actually worsen the problem.
Of course, jails and prisons will be full and law enforcement and the ancillary industries thereto will be well heeled for the foreseeable future. And that is the bottom line for these industries and the many politicians they support.
This is something to keep an eye on. Most Americans favor legalization. It seems safe to say that most Americans are against wrongful and arbitrary arrests. So it seems equally safe to say that this would likewise apply to marijuana DUI prosecutions.