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Monday, February 18 , 2019, 5:04 pm | Partly Cloudy 56º


Dale Francisco: Proposition 19 Would Be a Legal Nightmare for California

Marijuana legalization initiative haunted by lack of clear definition, reliable tests

When California adopted the ballot initiative system in 1911, it was seen as a seldom-to-be-used tool allowing the people to correct gross legislative errors. Yet from the beginning it was used more than had been anticipated. In bumper crop years there have been as many as 20 propositions on the ballot. Initiatives have become not a remedy for bad legislation, but a substitute for legislation itself.

Dale Francisco
Dale Francisco

The worst initiatives are those that promote narrow interests, often for financial gain, and that do so using language simultaneously vague and complex, guaranteeing years of expensive litigation and legal uncertainty. Proposition 19 on the Nov. 2 ballot is an example of just such a bad initiative.

Most people know that Prop. 19 would legalize possession and use of marijuana — which is true. But it goes far beyond that through extensive changes to California’s Health and Safety Code. Should the initiative pass, we might not know the full ramifications of these changes for years.

Proposition 19, the so-called Regulate, Control and Tax Cannabis Act of 2010 was conceived by Oakland dispensary owner and marijuana evangelist Richard Lee. After the chaos created by an earlier poorly written initiative, Proposition 215 (the Compassion Use Act of 1996), Prop. 19 is being sold to voters largely on grounds that it will finally control the drug trade.

But despite the claim in its introduction that Prop. 19 will “implement a legal regulatory framework to give California more control over the cultivation, processing, transportation, distribution, and sales of cannabis,” and “allow the Legislature to adopt a statewide regulatory system for a commercial cannabis industry,” the initiative’s actual language gives unspecified regulatory powers solely to cities and counties. How many cities and counties have the resources to regulate the marijuana trade?

Imagine if the city of Santa Barbara were responsible, for instance, for regulating every aspect of the beer business, from the grain fields to the retail shelf. Only the state has the resources to regulate such a massive industry.

Another selling point for Proposition 19 is the supposed state tax revenues it would generate. The section on taxation in Prop. 19 is essentially meaningless. Cities and counties are supposedly “allowed” to “impose” taxes related to marijuana sales. (No mention is made of state taxes.) But in California, since Proposition 218 was approved by voters in 1996, no taxes can be imposed without a vote of the people. Thus the claim that Prop. 19 would rescue California from its budget crisis is pure speculation.

These so-called regulation and taxation provisions would create a confusing patchwork of laws that would leave the marijuana trade essentially unregulated, while discouraging the entry of corporations that rely on uniform laws and economies of scale. Thus, Prop. 19 could help dispensary owners keep a lock on their lucrative businesses — and that may in fact be its main purpose.

Proposition 19 also does damage to employment law. Employers currently can dismiss employees who use alcohol or drugs on the job. But Prop. 19 would give special protection to marijuana users. According to Proposition 19, employers may not “discriminate” against employees who use marijuana before work or on a break unless that use “actually impairs job performance” — a standard that will be difficult to meet in the absence of legal definitions of marijuana intoxication and impairment.

Which leads to one of Prop. 19’s biggest problems: the lack of a clear definition and reliable tests for marijuana intoxication.

When a police officer stops a motorist for reckless driving, if he suspects the driver has been drinking, a breathalyzer test will give an accurate approximation of the driver’s blood-alcohol level. If that level is above 0.08 percent, the driver is legally presumed impaired.

No similar tests or definitions exist for marijuana. If a police officer suspects a driver is under the influence of marijuana or other drugs, he must administer field sobriety tests and observe certain physiological signs, as part of a standard procedure called the Drug Recognition Evaluation. Not all officers are trained and experienced in this procedure, and not all district attorneys are familiar enough with it to make a convincing prosecution. Prop. 19 would greatly increase the number of intoxicated drivers on the road, without giving law enforcement the tools needed to protect the public.

Some argue that legalizing marijuana will have beneficial effects similar to the lifting of Prohibition in 1933 — reducing organized crime and creating a safer, standardized product. But the repeal of Prohibition simply returned to the status quo ante of centuries of accumulated law and custom concerning alcohol.

By contrast, Proposition 19 is a leap into legal chaos. This complex topic requires careful legislation, not reckless ballot initiatives — especially not one put forward by a major beneficiary of the initiative. Please vote No on Proposition 19.

Dale Francisco is a Santa Barbara city councilman.

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