Marijuana Legalization in New Mexico: One Step Forward, Two Steps Back!

Legalization of marijuana is a very hot topic right now. Two states have legalized recreational use while 20 others have legalized medical marijuana. The majority of Americans are in favor of legalization of recreational use, while an overwhelming majority is in favor of legalization for therapeutic uses.

NORML (National Organization for the Reform of Marijuana Laws) estimates that nearly 100 million Americans have used marijuana at some point, 25 million have used it in the past year, over 14 million use it regularly and perhaps most startling that there have been 25 million arrests of Americans on marijuana charges since 1965.

There is absolutely no reason why marijuana should be treated any differently than alcohol. President Obama said as much when he stated that marijuana was no more dangerous than alcohol.

One Step Forward with Constitutional Amendment

In New Mexico’s latest legislative session, there was a constitutional amendment presented for the legalization of marijuana for recreational use. This seems somewhat promising though it had no chance of passage. It at least seemed to signal progress in the State.

Not so fast. The constitutional amendment was met with HB 190 which was anything but progressive and actually might have resulted in far greater criminal prosecutions for marijuana.

HB 190 was presented as a modification of the current DWI laws in New Mexico. Specifically, it addressed impairment under the influence of drugs rather than alcohol. Marijuana was included in the bill.

One Step Back with HB 190

Most everyone agrees that folks should not be driving while impaired by marijuana. However, this is not what the original bill would have addressed. In its original form, a driver could face per se guilt for DUI marijuana if any traces of marijuana were found.

The uninitiated might ask— why is this so bad? There are a number of reasons that reflect the outrageous and disastrous effects of passage of the HB 190 in its original form. First, marijuana is detectable in the blood for up to a month after smoking. Surely, nobody believes that smoking marijuana today will lead to impairment 30 days from now.

Second, a per se violation of the DUI laws means there is no defense. This means that there is no accounting for the variety of THC found in the blood (active v. non-active), the tolerance of the user, the dates and times when it was used, or anything remotely reflecting actual impairment.

Third, the bill in its original form made no distinction between active THC (Delta-9-THC) v. non-active, or inert, THC (THC-COOH). The active THC causes impairment, not the non-active. The active THC is detectable in the blood only for a matter of hours for occasional users thus more accurately reflecting impairment.

Finally, the bill did not address the various levels of use and tolerance. This is extremely important since those that use marijuana daily (i.e. medical marijuana users) would show signs of active THC constantly, as well as non-active THC for much longer than occasional users. Both would be disastrous for medical marijuana laws under the original bill.

HB 190 Ignores the Science on Impairment 

HB 190 was not passed in its original form. A substitute bill was introduced getting rid of the per se violation, setting levels and making a distinction between active and non-active THC. However, there were serious shortcomings in the substitute bill. In short, the substitute completely ignored the science on impairment.

How so? First, the levels for active THC were set very low at 2 nanograms per milliliter of blood. This is less than half of the levels set in Colorado and Washington, which both set the levels at 5 nanograms per milliliter. Presumably, both states put some thought into this.

Even at those levels, there can still be problems regarding tolerance and frequency of use. Again, even active THC will show far longer in frequent users, such as medical marijuana patients, than in occasional users. And these frequent users are those most likely to have built a tolerance and therefore suffer less impairment, if any, a few hours after use.

At least those states are attempting to address the science as the new laws unfold. New Mexico on the other hand introduced arbitrarily low limits, which even in the substitute form would have ensnared far more marijuana users into the criminal system than before the recent trends toward legalization.

Why HB 190? When it Utterly Fails to Address Impaired Driving?

In short, these laws could have far more disastrous consequences to the New Mexico public than the prior laws. One might ask what was it that HB 190 was seeking to deter. It most certainly had very little to do with impaired driving.

A cynic might ask whether it might be that these new laws will be a boon to the prison industries and all of the residual results that trickle down from the mass incarceration of law abiding citizens.

Keep an Eye on This in the Future

Fortunately, HB 190 did not pass.  However, it will likely be introduced again next year.  There will be those pressing for per se DUI for any traces of marijuana.  In fact, there are a number of states that have enacted such laws already.  Per se DUI basically amounts to criminalizing driving within 30 days of smoking marijuana.

HB 190 Ignores the Science.  Let’s Hope Someone Takes a Look at the Science before Next Year’s Session

Per se DUI nothing to do with impaired driving.  Nor do arbitrarily low limits on THC as proposed in the substitute HB 190.  Both completely ignore the science regarding impairment.  If the goal is to address impaired driving, hopefully New Mexico unlike these other states, will take a look at the science before next year’s session.  If they don’t, then one might reasonably begin to question the motivations and the influence behind the law.

If you would like to view HB 190 or the constitutional amendment, go the New Mexico Legislature Bill Finder.

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