Marijuana Legalization Raises New DUII Issues

Two former Portland-area prosecutors made headlines in The Oregonian this week with their advocacy of marijuana legalization. According to the newspaper Norm Frink and Mark McDonnell both believe that legalization is inevitable and, as a result, are trying to focus public attention on getting the details right.

“This is just a political fact in Oregon, even if some people don’t want to admit it,” the newspaper quoted Frink saying. “As a result,” the paper went on to note, “Frink and McDonnell, who headed the district attorney’s drug unit before retiring, on Tuesday announced that they wanted legislators to refer a marijuana legalization measure to voters in November.” The key to their idea is combining a voter referendum with legislative action. Oregonians would be asked to approve marijuana for personal use, but would charge the legislature with working out the details before the new law went into effect. “The two want to put off allowing legal possession of marijuana until after the legislature figures out how to set up a regulatory system,” The Oregonian reports.

The experience of Washington and Colorado would appear to validate this idea. When the two states became the first to make the possession and use of marijuana legal for personal recreational use the result was an immediate legal conundrum. At the most basic level, legalization puts state law in conflict with the federal government, but there are a number of equally serious – and in some ways more immediate – issues. Take drunk driving, for example. It ought to be relatively easy to agree that impaired driving brought on by pot use is just as dangerous as driving while drunk. Any state legalizing marijuana, however, will need to figure out ways to measure and assess the drug as part of a drunk driving arrest: what level of marijuana impairment crosses a safety line? What is the best and most efficiently to measure it? How should the use of marijuana and alcohol together be treated (presumably the two in combination could cross an impairment threshold at a point when neither, by itself, does so)?

These seem like narrow issues that might be of interest only to lawyers, but as an Oregon drunk driving victim’s advocate I can assure you that they are significant. Until now state and local governments have had the luxury of treating marijuana use as a black-and-white issue: it was illegal, so, if it was in your bloodstream at the time of a traffic stop you were in trouble. The future may not be nearly so clear-cut. With so many problems here in Oregon and around the country related to distracted driving this is not an easy issue to solve, yet, as the two former prosecutors urge, it may require our lawmakers’ immediate attention.

The Oregonian: Oregon marijuana legalization is inevitable – so do it right, two retired Multnomah prosecutors say