Oregon Becomes Third State to Legalize Marijuana

It looks
like Oregon is about to become the third state to legalize
marijuana. With more than 50 percent of precincts
reporting, the results are 55 percent in favor, 45 percent
against. Residents of Washington, D.C., also
voted to legalize marijuana today. 

Oregon’s
Measure 91, also known as the Control, Regulation, and
Taxation of Marijuana and Industrial Hemp Act, combines elements of
Colorado’s Amendment
64 and Washington’s I-502.
Like both of those initiatives, it allows adults 21 or older to
purchase and possess up to an ounce of marijuana at a time. Like
Amendment 64, it allows nonprofit transfers of up to an ounce. That
provision protects people from arrest for sharing pot, which
otherwise can be treated as criminal distribution, even if it’s
limited to passing a joint. 

Measure 91’s decriminalization of marijuana use does not apply
to consumption in any “public place,” defined as “a place to which
the general public has access.” By comparison, Colorado prohibits
“consumption that is conducted openly and publicly,” while
Washington forbids consumption “in view of the general public,”
both of which seem to cover less ground. Like Colorado (and unlike
Washington), Oregon’s initiative allows home cultivation, but with
stricter limits: up to four plants and eight ounces of usable
marijuana per household, compared to six plants and whatever amount
they produce per adult in Colorado. 

The Oregon initiative takes a different approach to taxation
than Colorado or Washington, both of which imposed levies based on
a percentage of wholesale and retail prices. Oregon’s initiative
instead would impose taxes on cannabusinesses based on weight: $35
per ounce of buds and $10 per ounce of leaves, plus $5 per immature
plant. 

One distinct advantage of the Oregon initiative is that it does
not change the standard for driving under the influence of
intoxicants (DUII, a.k.a. DUID). Under current law, convicting
someone of DUII requires showing
that he was “affected to a noticeable degree” by marijuana or
another controlled substance, based on
the “totality of the circumstances.” By contrast, Washington’s
current rule, established by I-502, says any driver whose blood
contains five or more nanograms of THC per milliliter is
automatically guilty of DUID, a standard that in
effect prohibits driving
by many daily consumers, including patients who use marijuana as a
medicine, even when they are not actually impaired. 

Amendment 64 did not directly change Colorado’s DUID law, but
after it passed the state legislature approved a law that created a
“rebuttable
presumption” of DUID at five nanograms, which in practice may
have the same impact as Washington’s law. Oregon’s initiative
instead instructs the state Liquor Control Commission, which as in
Washington would be charged with regulating the newly legal
cannabis industry, to study “the influence of marijuana on the
ability of a person to drive a vehicle” and advise the legislature
on whether changing Oregon’s DUII rule is appropriate.