(part II: Marijuana)

Twenty years ago, in 1996, marijuana made its legalization debut for medical purposes in sunny California. Since that time, states across the country have been legalizing marijuana for medical purposes (as of today, 26 states plus the District of Columbia and Guam, with four more states having medical marijuana on their 2016 ballots). In 2010, Arizona joined the medicinal cannabis club. Then, two years later, in 2012, marijuana made its legalization debut for recreational purposes in Colorado and Washington. Alaska and Oregon soon followed in 2014. This election year, 2016, voters in 5 more states will have the opportunity to vote yes or no to legalize marijuana for recreational use, including Arizona.

Marijuana, however, still remains illegal under federal law.

The Increase in Legalization Parallels the Increase in Use

Corresponding, or quite likely preceding, the upsurge in legalization is a revolution in perception: more and more users and non-users consider marijuana relatively safe or, at least, safer than alcohol or other drugs. Recent studies concur. Two recent long-term studies on teenagers and twins have essentially debunked the claim that marijuana has deleterious effects on the brain, while another study has discredited the presumed causal link between marijuana use and high school dropout rates.

As perceptions evolve to a more favorable or tolerable view of marijuana, so too does an increase in marijuana use. More and more high school students are trying and using marijuana. For example, even by conservative estimates, according to Teen Rehab Center, roughly 35 percent of 12th graders try it at least once and 6 percent use it daily. The last statistic reflects college students’ use, which is reportedly the highest it’s been in 35 years. The University of Michigan, which has been surveying marijuana use on college campuses for the most part of the last four decades, claimed in a 2015 publication that 5.9 percent of college students smoke marijuana daily or almost daily; that’s 1 out of every 17 students, not counting students who may have it on a casual basis. And these reported statistics may be below the actual numbers. For some of you, your first “experience” with marijuana may have been in high school or even middle school, but for others, it was or will likely be in college. As for adults, including young (and old) professionals, the rate is even higher. At 9.5 percent, marijuana use by adults has doubled over the last decade. This reminds me of a young professional I once represented.

The Case of the Pot Smoking Emergency Room Doctor

I represented an emergency medicine resident who lived in Phoenix and was matched at a major hospital. He was a gregarious guy who liked to heartily decompress from amazingly long and stressful hours in the ER. It happened one night in November after he was blowing off steam and attending a concert at the Glendale Arena. While driving home on the “202”, he was pulled over by an officer of the Arizona Department of Public Safety (DPS). Sitting in his newly leased BMW that had been arranged as a gift from his parents upon finishing medical school in Arkansas, he tried to breathe evenly while his hands mechanically gripped the steering wheel.

It was dark on that stretch of the 202, but the resident could see in his rearview mirror the image becoming clearer and clearer of the officer strutting up to his BMW.
The officer tapped on the window. The resident rolled it down.
The officer asked, “Do you know how fast you were going?”
Without waiting for an answer, the officer shined a flashlight onto the resident’s face and sniffed. “Tell me, why in the world do I smell marijuana?”
“I don’t know, sir.”
“You don’t know? Please get out of the car.”
The young resident, stunned, but accustomed to authority, did as he was told, and opened the door. The officer immediately cuffed the resident and placed him in his police car. The officer then returned to the BMW and rummaged through the passenger compartment.
The officer came back and held up one tiny bag of about a gram, a single bud, of medicinal grade “hydro”. “What’s this?”
The resident was silent.
The officer sighed, “Here’s what I’m going to do; I’m going to give you a break. I’m not going to arrest you for driving under the influence of marijuana. Though I think you probably are. I’m going to give you a ticket, a misdemeanor, for possession of marijuana. Does that work? If not, I’ll book you into the Madison Street jail. Which would you prefer?”
“What about my car?”
“Unfortunately, we are going to have to tow it.”
And so, this is how it went. The officer gave the resident the misdemeanor, “unauthorized possession of marijuana,” which required him to appear in Maricopa County Justice Court downtown.

The BMW’s welfare quickly became one of the resident’s least concerns. The hospital where he was training, like all teaching hospitals across the United States, do something called “credentialing” where they run background checks. And the medical boards, for obvious reasons, do not like any illicit drug use.

So in that case, what I did, is I went to the prosecutor, hat in hand, explained the situation and provided him a copy of our client’s transcripts and made a modest proposal. The prosecutor, luckily, agreed to quickly dismiss the case with the requested proviso that our client would submit to a series of drug tests over a period of 6 consecutive months. If the client passed all tests, the charges would never be refiled. If he failed a single one, the charges would be refiled.

The client passed each test, and the charges were not refiled. But this was an uncomfortably close call for a young doctor in the business of close calls. If the prosecutor had not agreed to dismiss the case with the said proviso, our client could have been singing a sad song at the next concert he attended.

The Law as It is Now

As mentioned, this November, Arizonans will vote yes or no on the Regulation and Taxation of Marijuana Act initiative, a.k.a. Prop 205. Until it passes and unless for medical purposes, accompanied by certain restrictions and qualifications, recreational marijuana remains illegal in Arizona. Police routinely make arrests. Arizona also has one of the harshest laws and penalties for marijuana as it relates to driving. For instance, if the emergency medicine resident had been charged with DUI marijuana (even if the marijuana had been legal), he could have potentially – if convicted for his first offense – been subject to mandatory incarceration, fines and fees starting at $1,250, a license revocation for one year, and an ignition interlock device for one year. But even without driving under the influence, possession of marijuana is problematic. In Arizona, possession of less than 2 lbs of marijuana can be either a misdemeanor or felony with separate but serious penalties attached to each. Fortunately for the resident, it worked out in his favor.

Now you might ask: If Prop 205 passes, will all of these consequences disappear and will you be free to smoke pot as you like? The answer is simple: no.

Life under Prop 205

If Prop 205 passes, it will be great for those of you who like to dabble in recreational marijuana, so long as you are:

1. At the minimum age of 21;
2. Not in control of or driving a vehicle, and, among other things;
3. Not living on campus.

Driving under the influence will still be illegal, as it is with driving under the influence of alcohol. Like alcohol, too, you must be 21 to use. These similarities in law are not coincidental because Prop 205 requires marijuana to be regulated the same as alcohol. Further, Prop 205 does:

1. NOT allow the use of marijuana in public;
2. NOT change existing penalties for possession of more than one ounce;
3. NOT allow unlicensed individuals to sell marijuana, and, among other things;
4. NOT mean it will be permitted on any school campus.

In fact, the likelihood of public and private colleges and universities allowing marijuana on campus is almost nil because marijuana, as above-mentioned, is still illegal under federal law. If a college wants federal funding, then for eligibility purposes, they must implement drug-prevention programs. Its legal status for recreational use, however, could elevate the potential for more college students to be introduced to marijuana and, thus, possibly place them in a precarious situation with the law.

Consequences of a Drug Conviction with or without Prop 205

Facing tough penalties will not be the only worry for a student or young professional who has a drug conviction. Your college life and present/future career could be placed at surprising risk. For students, a misdemeanor drug conviction could affect your college life in the following ways:

1. If you are underage and convicted of marijuana possession, you can be suspended;
2. You may also become ineligible for or have limited access to federal student aid, including loans, grants and work-study eligibility.
3. If you intend to apply for medical school or law school, the arrest becomes relevant.

For young professionals who are either seeking employment or currently employed, a drug conviction could affect you in other ways, such as:

1. For certain professions that require licenses or permits, you could become ineligible, or if you are in possession of one or both, you could have one or both suspended or revoked.
2. Some professions and businesses prohibit or discourage the hiring of persons who have drug convictions, and it is legal to do so as long as the prohibition of such is pertinent to the profession. Businesses generally do not want to hire someone with a conviction because it makes the business vulnerable to allegations of negligent hiring and/or higher insurance rates.
3. If you do not report your conviction on an application, and it is later discovered, you could be accused of misrepresentation.

As you can see, the consequences are very real for students and young professionals who smoke marijuana and are subsequently charged and convicted.

Tip of the Day

The best tip anyone can give a person who wants to smoke illicit marijuana: don’t. Heed that tip, or else you may find yourself (1) searching Google for a good attorney; and (2) combining the green grass on your college campus for a four-leaf clover, because luck may not always be on your side.

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