I posted this in another thread but thought it deserved it's own. Kind of a breakdown of the law with commentary by Russ Belville of NORML
California’s Prop 19: A word-for-word analysis
By "Radical" Russ Belville on July 17, 2010
I’ve spent the evening reading various blogs that have sprouted up in opposition to Proposition 19, California’s effort to legalize marijuana this November. These “Stoners Against Legalization” blogs confound me; they remind me of Sam Kinison’s line comparing “Rock Against Drugs” to “Christians Against Christ”.
Some of these blogs are based on the notion that legalization would be worse than “what we have now”. The assumption there is that if you smoke marijuana in California, you must already have your Prop 215 recommendation from a doctor, and you’d be losing your rights under Prop 19.
Most marijuana smokers, believe it or not, are healthy and aren’t comfortable spending money for a doctor to give them permission to use cannabis. Currently we face a ticket, fine, and misdemeanor drug conviction record for possession an ounce or less of cannabis. That record prevents us from getting student aid and can cost us our jobs, child custody, and housing, or if we’re on probation, our freedom. (Even if California succeeds at downgrading possession to an infraction from a misdemeanor, a $100 ticket is a lot of money to some people!) We face a felony charge if we grow even one plant at home. For us, Prop 19 is much better than “what we have now”.
Another thing that appears in some of these blogs is outright misinformation, such as talk of a $50/ounce state tax (it’s not in the initiative; that was Ammiano’s bill) or that it would supersede Prop 215 (it wouldn’t, and Prop 19 even references Prop 215 in its language, so it couldn’t). Others play up the “millionaires”, “big corporations”, and “monopolies” that would be created and the earnest Emerald Triangle family growers who’d be put out of business (which amuses me: Prop 19 allows localities to regulate sales, so why wouldn’t Humboldt, Trinity, and Mendocino county residents whose economy depends on pot sales lobby really hard to get legalized pot sales OK’d in those counties and cities within, and regulated in a way that protects the small grower?)
Two notable sticking points have to do with minors below 21: Prop 19 creates a new crime in being an adult over 21 who gives marijuana to adults aged 18-20 and Prop 19 forbids adults over 21 from smoking where minors are present. Prop 19’s penalties in the first situation mirror the penalties for giving alcohol to 18-20-year-olds, but, yes, it is disturbing to create a new statute that calls for jail time over marijuana. It’s also questionable whether an adult should be punished for smoking pot if their child can see them – we don’t even require that of alcohol and tobacco.
But are these reason enough to continue ruining the lives of people 21 and older? Besides, if you’re over 21 smoking with some 18-year-olds or in front of some minors, and you’re doing it inside your home, who is to know? And if you’re 18-20, wouldn’t you love being legal in 1 to 3 years?
Because the biggest thing Prop 19 does, the forest that these blogs are missing for the trees, is LEGALIZE ADULT MARIJUANA CULTIVATION AND POSSESSION.
Even under Prop 215, the adult cannabis consumer is guilty of being a criminal unless proven innocent as a patient. When Prop 19 passes, the adult cannabis consumer is considered innocent until proven guilty. It is a complete game changer for law enforcement, because:
* the smell of marijuana on your person is no longer probable cause to search you;
* that joint in your pocket means nothing;
* the seizure of stems, leaves, and seeds from your trash is irrelevant;
* a couple of baggies with weed residue in them are just garbage;
* the sight of that bong on your table visible through the kitchen window isn’t a “welcome” mat for a police search;
* your utility bills raising a bit for water and lights don’t matter;
* your neighbors smelling skunky plants is just a nuisance, not the source for an “anonymous tip”;
* receipts for lights, soil, fertilizer, ballasts, trimmers, and stuff are meaningless;
* infrared signatures of your home aren’t evidence of anything;
* marijuana sniffing K-9 units are out of a job; and
* pre-employment drug testing programs become harder for businesses to maintain for cannabis.
Basically, one of the simplest tools law enforcement has for harassing cannabis consumers – the sight and smell of cannabis and paraphernalia – is no longer in the tool belt. As long as you’re an adult, keep your grow in a 5′x5′ area, don’t smoke in front of kids, and don’t leave the house with over an ounce, you are free from police harassment.
And even if you don’t follow the law perfectly, who’s to know? If you’re pulled over and there’s an ounce and a half in your backpack, how does that cop know? Does it “smell heavy” in your car? So long as you refuse a search, how will he know? The smell of pot isn’t cause for a search; you’re allowed to have an ounce of it.
If you have a 10′x10′ garden, who’s to know? Is the electric bill that much higher? Does the garden smell more (probably not at all if you build a good grow room)? Plus don’t forget that you’re allowed to have more than one ounce, namely, any amount that you grow within your 5′x5′ garden, at the location of the garden. I think by the time law enforcement came back with a warrant to investigate how big my garden is, three-fourths of it would be cut down and I would suddenly have my 5′x5′ garden and my hanging plants from the last 5′x5′ area I harvested.
Suppose there is four pounds of marijuana at my house. Why, officer, that’s the results from my last legal 5′x5′ personal garden harvest. What, you don’t see any 5′x5′ growing space? Well, I used to grow, but I took down my garden and sold my equipment after my last harvest. Why, yes, they were some pretty big plants. No, I didn’t take any pictures, because what I was doing was perfectly legal. (Prop 19 also has a nice affirmative defense to claim the marijuana in your home was for your personal use. These blogs never seem to notice that.)
So below I’ve decided to write a word-for-word analysis of Prop 19, mainly because it seems like many of the people against it have never read it. Standard disclaimer: I am no lawyer… hell, I’m not even a college graduate
If you’re over 21, your personal pot use and cultivation are legal. Some places may even let you buy and sell it. You still can’t smoke it at school, in public, and with kids. Don’t drive stoned. We might even save and raise some money while we’re at it.
Or, simply, “Prop 19″.
Prohibition’s bad, mmmkay? It doesn’t work, wastes money, and creates crime. This Act will be a first step in ending that.
News flash: most people, especially non-cannabis consumers, think it is a bad idea for kids to use cannabis.
One blogger suggested that this point #6 would be enough for the courts to assume that the people meant Prop 19 to supersede patients’ medical rights under Prop 215, also known as California Health & Safety Code #11362.5. Somehow, #6 means that Prop 215 patients would suddenly be limited to 5′x5′ gardens and an ounce of medicine. Which seems odd to me, when you read further in #7 below…
…where they are saying that if your city doesn’t allow cannabis sales, you can still possess your one ounce, except if you’re permitted more than that under Prop 215 (11362.5). How could any court think that #6 means all of Prop 19 supersedes Prop 215 when a nullified Prop 215 means #7 is granting an exception that wouldn’t exist if it were superseded?
If a city does allow cannabis sales it can regulate how much you buy and sell, except if you’re permitted more than that under Prop 215 (11362.5)… you know, the part that #6 supposedly supersedes.
Well, that’s a lovely premise, but nothing controls how these governments would spend the money. But since were talking about local governments, not the state, there will be more local control and pressure over how local marijuana money is spent.
Well, people consuming less than an ounce are only getting tickets, not arrests, but still there are arrests for possessing more than an ounce at home and for growing any amount at home.
Someday the state might decide to let cannabis be sold statewide… probably after the feds end their cannabis prohibition. This is important: this line doesn’t force California to violate federal law, but it sets the stage for statewide regulation once it doesn’t violate federal law.
That might be difficult, as California’s universities and teaching hospitals – the places where you might scientifically study cannabis – often have federal ties that prevent them from engaging in cannabis research. But it will be no more difficult than it is now.
This is kind of a 10th Amendment issue, after all, except for the Supreme Court’s view that the Commerce Clause of the Constitution empowers the Congress to make laws prohibiting citizens of California from consuming a house plant for personal purposes in private.
This is the best part of Prop 19 – the marijuana plant is declared legal in some situations!
This Act will legalize cannabis possession, transportation, cultivation, consumption, and sale of cannabis to some extent…
…except where it concerns kids, schools, and driving or working high.
If you’re 21 or older, you can have an ounce of weed on you, out in public, and share it with your 21 and older friends.
You can grow a 25 sq ft marijuana garden in your home or on your land. You might have to get your landlord’s permission if you’re renting.
Whatever you harvest at home in your 25 sq ft garden, you can keep at home. Not just one ounce, the whole harvest. No time limit. If you harvest a pound every three months and have a stash of twelve pounds after four years, and you’re not selling, that pot is all yours and perfectly legit.
Your bongs are now legal, too.
“In any form” = hash, edibles, tinctures. You’ve got to consume in a non-public place, unless your city is cool and allows public consumption in certain places. (Hello, hash bar!)
You can’t sell it without a license, smoke in public, smoke while driving, boating, or flying, or smoke around kids.
Local governments can regulate commercial sales. It is very important that this initiative didn’t force the State of California to regulate commercial sales, which could have hung this initiative up in court for putting California in “positive conflict” with the federal prohibition. Here, California isn’t doing anything about sales… literally. California is saying, “if Berkeley wants to allow weed selling, we won’t stop them.”
If a city wants to legalize sales, it can only be up to an ounce per transaction and everybody involved has to be 21 or older.
A city can license bars and coffee shops to allow on-site toking, as well as the retail marijuana stores.
A city can punish you for getting cannabis illegally. You can grow your own or you can buy it from a licensed store. You and your friends can share what you grow, up to an ounce each.
A city could limit a pot store’s locations, hours, size, advertising, and keep them away from other businesses.
A city could make you control the smoke and smell and make you be polite to nearby businesses and locals.
A city can tax marijuana and keep it out of public view.
A city might decide you are allowed to grow more than a 5′x5′ garden and possess more than an ounce for personal consumption. And maybe they decide you can buy and sell more than an ounce at a time. Hooray!
Cities can tax cannabis and create fees for licensing and can use that to cover the costs of enforcing the law.
Licensed cannabis businesses have to pay their taxes.
Cops cannot take your plants or your weed if you’re obeying the law.
You can’t smoke pot while doing something dangerous. You can’t bring pot to school.
You can’t take your weed out of state or out of the country. But you can take it from one legal place to another, even if the places in-between aren’t legal.
This is a big one. You can’t be punished or denied privileges based on pot smoking. The only exception is employers preventing you from smoking pot on the job. Note the “actually impairs job performance” language. This is the loophole through which some attorney is going to drive a big truck delivering us freedom from workplace pee testing for cannabis. Pee test metabolites do not prove workplace impairment.
Hemp is also in Genus Cannabis. Cities could legalize industrial hemp production. Hash, hash oil, and edibles are all legal, too.
We just got an extra 0.15 grams… because an ounce is really 28.3495231 grams.
So the ounce in your plate of brownies is still only an ounce, not the pound that the brownies weigh.
Your plants, in the ground or freshly cut and hanging, don’t count against the one ounce that you can have on your person. So long as the plants fit in 25 sq ft, you’re golden. Since you can already have the fruits of your harvest at home, the fact that this also means your plants don’t count against your home weight is irrelevant
Even if you have a whole lot of marijuana, you still have a defense in court that your marijuana was for your own personal consumption.
Since “residence” could have more than one occupant, but each “residence” only gets one 5′x5′ garden, this is a minor issue in a multi-roommate situation. But even sharing the garden, it is more garden than they are allowed to grow now.
These first two sections confuse many readers as they think these are all new additions to law. Parts (a) and (b) are the parts of the law as they already exist. Only (c) and (d) are the new portions:
This is the one section that gets a lot of attention. Currently, the punishment for a “gift” of marijuana from a 21+ to a 18-20 is a citation and $100 fine. Now it will be six months and $1,000.
But this is the punishment in California for providing alcohol to 18-20s. Politically, initiative backers had to face the fact that “What About the Children?!?” is one of the few compelling arguments the opposition has left. No initiative that legalizes for 18-year-olds – many of whom are still in high school – has a prayer of passing yet.
If you own or work in a pot store and your marijuana gets in the hands of someone under 21, you can’t own, work in, or even go to any pot store for a year.
The people, through initiative, or the legislature, through bills, can amend this Act, but only to better define what we said this Act was about in the Purposes above, or to…
Nobody can make your one ounce and 5′x5′ garden smaller, but the state could give you more.
The state could set up a statewide cannabis industry.
The state could get serious about industrial hemp production.
If the courts strike down, say, the sales portion of the law, that doesn’t kill the personal possession and cultivation parts of the law.
NORML
California’s Prop 19: A word-for-word analysis
By "Radical" Russ Belville on July 17, 2010
I’ve spent the evening reading various blogs that have sprouted up in opposition to Proposition 19, California’s effort to legalize marijuana this November. These “Stoners Against Legalization” blogs confound me; they remind me of Sam Kinison’s line comparing “Rock Against Drugs” to “Christians Against Christ”.
Some of these blogs are based on the notion that legalization would be worse than “what we have now”. The assumption there is that if you smoke marijuana in California, you must already have your Prop 215 recommendation from a doctor, and you’d be losing your rights under Prop 19.
Most marijuana smokers, believe it or not, are healthy and aren’t comfortable spending money for a doctor to give them permission to use cannabis. Currently we face a ticket, fine, and misdemeanor drug conviction record for possession an ounce or less of cannabis. That record prevents us from getting student aid and can cost us our jobs, child custody, and housing, or if we’re on probation, our freedom. (Even if California succeeds at downgrading possession to an infraction from a misdemeanor, a $100 ticket is a lot of money to some people!) We face a felony charge if we grow even one plant at home. For us, Prop 19 is much better than “what we have now”.
Another thing that appears in some of these blogs is outright misinformation, such as talk of a $50/ounce state tax (it’s not in the initiative; that was Ammiano’s bill) or that it would supersede Prop 215 (it wouldn’t, and Prop 19 even references Prop 215 in its language, so it couldn’t). Others play up the “millionaires”, “big corporations”, and “monopolies” that would be created and the earnest Emerald Triangle family growers who’d be put out of business (which amuses me: Prop 19 allows localities to regulate sales, so why wouldn’t Humboldt, Trinity, and Mendocino county residents whose economy depends on pot sales lobby really hard to get legalized pot sales OK’d in those counties and cities within, and regulated in a way that protects the small grower?)
Two notable sticking points have to do with minors below 21: Prop 19 creates a new crime in being an adult over 21 who gives marijuana to adults aged 18-20 and Prop 19 forbids adults over 21 from smoking where minors are present. Prop 19’s penalties in the first situation mirror the penalties for giving alcohol to 18-20-year-olds, but, yes, it is disturbing to create a new statute that calls for jail time over marijuana. It’s also questionable whether an adult should be punished for smoking pot if their child can see them – we don’t even require that of alcohol and tobacco.
But are these reason enough to continue ruining the lives of people 21 and older? Besides, if you’re over 21 smoking with some 18-year-olds or in front of some minors, and you’re doing it inside your home, who is to know? And if you’re 18-20, wouldn’t you love being legal in 1 to 3 years?
Because the biggest thing Prop 19 does, the forest that these blogs are missing for the trees, is LEGALIZE ADULT MARIJUANA CULTIVATION AND POSSESSION.
Even under Prop 215, the adult cannabis consumer is guilty of being a criminal unless proven innocent as a patient. When Prop 19 passes, the adult cannabis consumer is considered innocent until proven guilty. It is a complete game changer for law enforcement, because:
* the smell of marijuana on your person is no longer probable cause to search you;
* that joint in your pocket means nothing;
* the seizure of stems, leaves, and seeds from your trash is irrelevant;
* a couple of baggies with weed residue in them are just garbage;
* the sight of that bong on your table visible through the kitchen window isn’t a “welcome” mat for a police search;
* your utility bills raising a bit for water and lights don’t matter;
* your neighbors smelling skunky plants is just a nuisance, not the source for an “anonymous tip”;
* receipts for lights, soil, fertilizer, ballasts, trimmers, and stuff are meaningless;
* infrared signatures of your home aren’t evidence of anything;
* marijuana sniffing K-9 units are out of a job; and
* pre-employment drug testing programs become harder for businesses to maintain for cannabis.
Basically, one of the simplest tools law enforcement has for harassing cannabis consumers – the sight and smell of cannabis and paraphernalia – is no longer in the tool belt. As long as you’re an adult, keep your grow in a 5′x5′ area, don’t smoke in front of kids, and don’t leave the house with over an ounce, you are free from police harassment.
And even if you don’t follow the law perfectly, who’s to know? If you’re pulled over and there’s an ounce and a half in your backpack, how does that cop know? Does it “smell heavy” in your car? So long as you refuse a search, how will he know? The smell of pot isn’t cause for a search; you’re allowed to have an ounce of it.
If you have a 10′x10′ garden, who’s to know? Is the electric bill that much higher? Does the garden smell more (probably not at all if you build a good grow room)? Plus don’t forget that you’re allowed to have more than one ounce, namely, any amount that you grow within your 5′x5′ garden, at the location of the garden. I think by the time law enforcement came back with a warrant to investigate how big my garden is, three-fourths of it would be cut down and I would suddenly have my 5′x5′ garden and my hanging plants from the last 5′x5′ area I harvested.
Suppose there is four pounds of marijuana at my house. Why, officer, that’s the results from my last legal 5′x5′ personal garden harvest. What, you don’t see any 5′x5′ growing space? Well, I used to grow, but I took down my garden and sold my equipment after my last harvest. Why, yes, they were some pretty big plants. No, I didn’t take any pictures, because what I was doing was perfectly legal. (Prop 19 also has a nice affirmative defense to claim the marijuana in your home was for your personal use. These blogs never seem to notice that.)
So below I’ve decided to write a word-for-word analysis of Prop 19, mainly because it seems like many of the people against it have never read it. Standard disclaimer: I am no lawyer… hell, I’m not even a college graduate
If you’re over 21, your personal pot use and cultivation are legal. Some places may even let you buy and sell it. You still can’t smoke it at school, in public, and with kids. Don’t drive stoned. We might even save and raise some money while we’re at it.
Or, simply, “Prop 19″.
Prohibition’s bad, mmmkay? It doesn’t work, wastes money, and creates crime. This Act will be a first step in ending that.
News flash: most people, especially non-cannabis consumers, think it is a bad idea for kids to use cannabis.
One blogger suggested that this point #6 would be enough for the courts to assume that the people meant Prop 19 to supersede patients’ medical rights under Prop 215, also known as California Health & Safety Code #11362.5. Somehow, #6 means that Prop 215 patients would suddenly be limited to 5′x5′ gardens and an ounce of medicine. Which seems odd to me, when you read further in #7 below…
…where they are saying that if your city doesn’t allow cannabis sales, you can still possess your one ounce, except if you’re permitted more than that under Prop 215 (11362.5). How could any court think that #6 means all of Prop 19 supersedes Prop 215 when a nullified Prop 215 means #7 is granting an exception that wouldn’t exist if it were superseded?
If a city does allow cannabis sales it can regulate how much you buy and sell, except if you’re permitted more than that under Prop 215 (11362.5)… you know, the part that #6 supposedly supersedes.
Well, that’s a lovely premise, but nothing controls how these governments would spend the money. But since were talking about local governments, not the state, there will be more local control and pressure over how local marijuana money is spent.
Well, people consuming less than an ounce are only getting tickets, not arrests, but still there are arrests for possessing more than an ounce at home and for growing any amount at home.
Someday the state might decide to let cannabis be sold statewide… probably after the feds end their cannabis prohibition. This is important: this line doesn’t force California to violate federal law, but it sets the stage for statewide regulation once it doesn’t violate federal law.
That might be difficult, as California’s universities and teaching hospitals – the places where you might scientifically study cannabis – often have federal ties that prevent them from engaging in cannabis research. But it will be no more difficult than it is now.
This is kind of a 10th Amendment issue, after all, except for the Supreme Court’s view that the Commerce Clause of the Constitution empowers the Congress to make laws prohibiting citizens of California from consuming a house plant for personal purposes in private.
This is the best part of Prop 19 – the marijuana plant is declared legal in some situations!
This Act will legalize cannabis possession, transportation, cultivation, consumption, and sale of cannabis to some extent…
…except where it concerns kids, schools, and driving or working high.
If you’re 21 or older, you can have an ounce of weed on you, out in public, and share it with your 21 and older friends.
You can grow a 25 sq ft marijuana garden in your home or on your land. You might have to get your landlord’s permission if you’re renting.
Whatever you harvest at home in your 25 sq ft garden, you can keep at home. Not just one ounce, the whole harvest. No time limit. If you harvest a pound every three months and have a stash of twelve pounds after four years, and you’re not selling, that pot is all yours and perfectly legit.
Your bongs are now legal, too.
“In any form” = hash, edibles, tinctures. You’ve got to consume in a non-public place, unless your city is cool and allows public consumption in certain places. (Hello, hash bar!)
You can’t sell it without a license, smoke in public, smoke while driving, boating, or flying, or smoke around kids.
Local governments can regulate commercial sales. It is very important that this initiative didn’t force the State of California to regulate commercial sales, which could have hung this initiative up in court for putting California in “positive conflict” with the federal prohibition. Here, California isn’t doing anything about sales… literally. California is saying, “if Berkeley wants to allow weed selling, we won’t stop them.”
If a city wants to legalize sales, it can only be up to an ounce per transaction and everybody involved has to be 21 or older.
A city can license bars and coffee shops to allow on-site toking, as well as the retail marijuana stores.
A city can punish you for getting cannabis illegally. You can grow your own or you can buy it from a licensed store. You and your friends can share what you grow, up to an ounce each.
A city could limit a pot store’s locations, hours, size, advertising, and keep them away from other businesses.
A city could make you control the smoke and smell and make you be polite to nearby businesses and locals.
A city can tax marijuana and keep it out of public view.
A city might decide you are allowed to grow more than a 5′x5′ garden and possess more than an ounce for personal consumption. And maybe they decide you can buy and sell more than an ounce at a time. Hooray!
Cities can tax cannabis and create fees for licensing and can use that to cover the costs of enforcing the law.
Licensed cannabis businesses have to pay their taxes.
Cops cannot take your plants or your weed if you’re obeying the law.
You can’t smoke pot while doing something dangerous. You can’t bring pot to school.
You can’t take your weed out of state or out of the country. But you can take it from one legal place to another, even if the places in-between aren’t legal.
This is a big one. You can’t be punished or denied privileges based on pot smoking. The only exception is employers preventing you from smoking pot on the job. Note the “actually impairs job performance” language. This is the loophole through which some attorney is going to drive a big truck delivering us freedom from workplace pee testing for cannabis. Pee test metabolites do not prove workplace impairment.
Hemp is also in Genus Cannabis. Cities could legalize industrial hemp production. Hash, hash oil, and edibles are all legal, too.
We just got an extra 0.15 grams… because an ounce is really 28.3495231 grams.
So the ounce in your plate of brownies is still only an ounce, not the pound that the brownies weigh.
Your plants, in the ground or freshly cut and hanging, don’t count against the one ounce that you can have on your person. So long as the plants fit in 25 sq ft, you’re golden. Since you can already have the fruits of your harvest at home, the fact that this also means your plants don’t count against your home weight is irrelevant
Even if you have a whole lot of marijuana, you still have a defense in court that your marijuana was for your own personal consumption.
Since “residence” could have more than one occupant, but each “residence” only gets one 5′x5′ garden, this is a minor issue in a multi-roommate situation. But even sharing the garden, it is more garden than they are allowed to grow now.
These first two sections confuse many readers as they think these are all new additions to law. Parts (a) and (b) are the parts of the law as they already exist. Only (c) and (d) are the new portions:
This is the one section that gets a lot of attention. Currently, the punishment for a “gift” of marijuana from a 21+ to a 18-20 is a citation and $100 fine. Now it will be six months and $1,000.
But this is the punishment in California for providing alcohol to 18-20s. Politically, initiative backers had to face the fact that “What About the Children?!?” is one of the few compelling arguments the opposition has left. No initiative that legalizes for 18-year-olds – many of whom are still in high school – has a prayer of passing yet.
If you own or work in a pot store and your marijuana gets in the hands of someone under 21, you can’t own, work in, or even go to any pot store for a year.
The people, through initiative, or the legislature, through bills, can amend this Act, but only to better define what we said this Act was about in the Purposes above, or to…
Nobody can make your one ounce and 5′x5′ garden smaller, but the state could give you more.
The state could set up a statewide cannabis industry.
The state could get serious about industrial hemp production.
If the courts strike down, say, the sales portion of the law, that doesn’t kill the personal possession and cultivation parts of the law.
NORML
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