Arguments Against A64 (23)

Arguments Against A64
Compiled by Cannabis Policy Project from various sources
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Amendment 64 is the marijuana “regulation” (not “legalization”) constitutional amendment that will appear on the Nov. 6, 2012 ballot in Colorado. Many people who are in favor of re-legalization of cannabis do not think A64 is a step in that direction.

Arguments Against A64

1) A64 is not “legalization”, it is “regulation” of marijuana.

Regulation of marijuana, by definition, creates more prohibitions on the time, manner and place of marijuana use. Legalization would be the removal of all prohibitions on marijuana, but A64 doesn’t even remove one criminal penalty from the books. A64 creates more laws regarding marijuana and empowers the Department of Revenue to create even more unlimited new rules and regulations regarding marijuana. A64 will result in more prohibitions on marijuana, not fewer.

A64 removes the current penalty of the $100 ticket for one ounce of marijuana (up to 2 ounces is a petty offense in Colorado statute), but only if you do not have it in your vehicle (where you might be charged with DUI) and you can PROVE you either purchased it from a state-licensed marijuana store or grew it yourself at home.

A64 will allow you to grow up to 6 plants at home, but you will have to subject yourself to regulations which will likely include home electrical inspections, permitting by local governments, and warrantless “compliance checks” by the Marijuana Criminal Enforcement Division of the Colorado Department of Revenue.

A64 proponents themselves said it would be “inaccurate” and “truly misleading” to call A64 “legalization.” Don’t get fooled by fake legalization. Watch video of A64 proponents admitting that calling A64 “legalization” would be “inaccurate” and “truly misleading”

A64 was modeled after HB 10-1284, the bill passed in 2010 to crush the medical marijuana industry through over-regulation. A64 is prohibition through regulation, just like HB1284.

A64 removes no criminal statutes from the books, so functionally, it will help no one. A64 proponents have not been able to point to one instance in which someone with only one ounce or only 6 plants had been arrested in Colorado.

2) A64 is a Constitutional Amendment and Can’t Be Easily Changed

A Constitutional Amendment is very difficult to change. All constitutional amendments must be approved by a vote of the people. This is done either through collecting signatures to put it on the ballot (the citizen’s initiative process) or by having the legislature vote by 2/3 majority to have the issue placed on the ballot (referred initiative).

Both the Denver Post and the Daily Camera agree that since there may be many unintended consequences of A64, it is too risky to amend the constitution with it.

Denver Post: Amendment 64 is the wrong way to legalize marijuana

Daily Camera: No on Amendment 64: Pot should be legal, this isn’t the way

It cost more than $2 million to get A64 on the ballot to amend the constitution through a citizen’s ballot initiative process. It will take another $2 million to change even one word in the amendment. A64 was funded by 99% out of state money. Less than 1% of A64’s funding came from locals. A64 funders will not come back to “fix it later”. These same out-of-state funders also promised they would help fix the language they wrote for Amendment 20, the medical marijuana law passed in 2000, but never gave a dime towards its successful implementation or trying to uphold the few good parts of Am. 20 in court.

If A64 would have been petitioned for as a statute, then it could be tweaked along the way by the state legislature. But since it is a constitutional amendment, every word will be written in stone. Since there will be no money to “fix it later”, every word in the Amendment needs to be perfect, and it is far from perfect.

3) A64 will lead to MORE DUI ARRESTS for marijuana.

A64 may create a NEW constitutional crime called “Driving Under the Influence of Marijuana”. Section (1) (b) (III) of A64 states: “Driving under the influence of marijuana shall remain illegal”.

A64 proponents argue that this language is innocuous and just keeps the current law the same. This is untrue.

First, there is no mention of DUI in the Constitution right now. So that means A64 will give Constitutional weight to the crime, meaning DUI/THC will ALWAYS be illegal, even for patients.

Under current Colorado DUI laws, a person can be considered “under the influence” of marijuana if the have ZERO nanograms of THC (any detectable amount) in their blood stream. However, you are allowed to argue at your trial to a jury that you were not actually impaired, even if there was THC in your bloodstream.

If A64 passes, the ZERO nanogram limit always remain forever enshrined in our Constitution. You will be arrested if a blood test detects any amount of THC. A64 doesn’t guarantee a defense based on whether you were actually impaired or not, so a judge might rule that you couldn’t bring evidence of your impairment in at your trial. And you will still be arrested anyway.

Alternatively, the legislature might read the vague language of A64 and determine that currently in Colorado statutes, there is no crime specifically called “Driving Under the Influence of Marijuana”. Currently, THC-impairment currently falls under Driving Under the Influence of Drugs (DUID) statutes. Since A64 fails to define specifically what “Driving Under the Influence of Marijuana” (DUIM) is, the General Assembly may feel they have a mandate to define this new crime and enact penalties for its violation. The legislature has been trying for the past few years to pass a THC/DUI bill, that will set a per se limit of 5 ng/mL of THC in whole blood, a level that most medical marijuana patients and chronic cannabis users will always exceed. Under A64, they may feel they are required to pass some new THC/DUI law, which will certainly lead to more DUIM arrests.

So under A64, if the legislature doesn’t define DUIM and just uses the current DUID statutes, then we will be frozen at a ZERO Nanogram THC limit, and a defense based on lack of actual impairment is not guaranteed.

4) A64 is modeled after a business plan designed for failure.

Am. 64 is modeled after a medical marijuana “regulation” system that was designed to crush small businesses. A64 was modeled after HB10-1284, a bill which, according to its sponsor state Sen. Chris Romer (D-Denver), was designed as a prohibition law to shut down 80% of medical dispensaries. Experts estimate that about 50% have already been shut down in the first two years since the passage of HB1284. See: “Romer’s medical marijuana bill would target dispensaries, younger patients; State senator calls status quo a ‘train wreck”, Boulder Daily Camera: Nov. 15, 2009

5) A64 has no limits on taxation, which may be abused by the government.

A64 guarantees an automatic excise tax of 15% on marijuana, and allows the state legislature to increase it by any amount after January 1, 2017. This 15% excise tax is unnecessary and will harm legitimate businesses that might want to open a medical marijuana cultivation, manufacturing or retail store. Historically, marijuana was first made illegal in 1937 through a prohibitive excise tax on the federal level. Taxes are an easy way for the government to prohibit a substance and should be limited to prevent government abuse.

6) A64 taxes may not require TABOR approval.

A64 is a constitutional amendment that may supersede TABOR. TABOR previously required that any tax increase or change in tax policy be approved by Colorado votes. A64 may eliminate this requirement and allows the state legislature to enact an excise tax of any amount they want without voter approval.

7) Am 64 is will not regulate marijuana “like alcohol”

A64 will not regulate marijuana “like alcohol”, it will regulate it like “medical marijuana.” A64 was modeled after the Medical Marijuana Code, a series of laws and regulations created to control the medical marijuana industry. A64 was not modeled after the Liquor Code.

A64 sets a limit on possession of marijuana by consumers of 1 ounce and 6 plants. However, there is no limit on the amount of alcohol that can be purchased in a retail alcohol store. This is a fundamental difference in the regulation of the two products. If alcohol consumers were only allowed to purchase one ounce of vodka at a time, it would require an entirely different set of regulations.

Additionally, licensed retail medical marijuana stores are given preferential treatment in A64 because they are already assumed to be in compliance with the bulk of regulations that will be promulgated for retail marijuana stores. There are no similar provisions for preferential treatment or discounted licensing fees for retail liquor stores, as there would be if A64 intended to regulate marijuana in a manner “similar to alcohol.”

8) A64 gives Department of Revenue constitutional authority to regulate cannabis.

The Department of Revenue is given unlimited authority to regulate marijuana in any way they see fit, with no constraints, as long as the regulations are not “unreasonably impracticable”. The definition of the term “unreasonably impracticable” is vague and ambiguous, leaving it up to a judge or jury to interpret. The DOR has a track record of corruption and waste in regulating medical marijuana. With over $10 million in funding from Medical Marijuana Center applicants and another $10 million they stole from the patient registry, the DOR has granted virtually no licenses out of 1200 applications in over two years. The DOR has a history of trying to hold secret meetings and appoint secret advisory boards. The DOR has continually changed the rules on MMC-applicants, costing businesses thousands of dollars. The head of the MMCED was even forced to step down after a scandal that had the state Attorney General of questioning whether the DOR was too “cozy” with the industry it was supposed to be regulating. Charges of cronyism and favoritism have been many. The MMCED bureaucracy is designed to strangle industry with ever-changing, ambiguous, and expensive regulations. The DOR has proven to be untrustworthy with medical marijuana, and many honest business owners have suffered at their hands. We should not give them any more control over marijuana, especially not in the state Constitution.

9) A64 eliminates legislative oversight of marijuana program.

By giving the Department of Revenue constitutional authority to regulate all marijuana in any way they see fit, with no constraints, as long as the regulations are not “unreasonably impracticable”, A64 eliminates the legislative oversight of the marijuana program. The DOR is run by appointed bureaucrats, not elected officials. This gives little recourse for citizens who normally would be able to campaign to vote an elected official out of office if they did not represent the views of the citizens in their district. With the DOR, no one is elected, so the normal political checks and balances that allow citizen input and prevent too much power from being concentrated will be eliminated.

10) One-ounce limits must be tracked, resulting in privacy concerns.

Since A64 says that only one ounce is legal in Colorado to possess, the Department of Revenue will need to use their medical RFID Marijuana Tracking Database and Surveillance System to use on all marijuana in Colorado. This is the massive “seed-to-sale” tracking system that is the cornerstone of the police’s medical marijuana “regulation” system outlined in the Medical Marijuana Code. The system will use RFID chips to track every seed and gram of cannabis in the state, from the store to your house, causing serious privacy concerns.

11) One-ounce limits require a state non-confidential registry.

The only way to determine if a person purchases more than one ounce or if a “Retail Marijuana Store” sells more than one ounce is to have a database or registry of customers. Unlike the medical marijuana law, A64 contains very weak provisions for confidentiality. This means that privacy issues and discrimination in employment, health insurance, child custody and other areas will still be a serious threat to a marijuana consumer who wishes to use a “retail marijuana store”. As we have seen with medical marijuana in Colorado, any time you put a number into a law, you create a position for a law enforcement officer to count or measure or weigh that number.

12) Creation of public list of marijuana users allowed.

The privacy clause in Section 5 (c) is weak and ambiguous will harm marijuana users. A64 does not adequately prevent the creation of a statewide public database of marijuana users that the state will track to determine compliance with the 1 ounce limits. A64 allows any agency, as long as it is not the Department of Revenue, to require someone to give their name when they make a purchase. A64 also states that the state can require retail marijuana stores to collect information that is “typically acquired” when you make a purchase at a liquor store. Since electronic payments “typically” require that you give your name to the store when you pay by card, then A64 would allow this requirement as well. This weak privacy clause will put people at risk of losing their homes, jobs, insurance, and children and also open them up to other discriminations if a list of marijuana users is made public. Since marijuana is illegal under federal law, agencies are already using their knowledge of a person’s existence on the supposedly confidential medical marijuana registry to discriminate against them. With the creation of a non-confidential, public registry under A64, discrimination cases against marijuana users will be guaranteed. If the authors of Amendment 64 wanted to prevent the creation of a Non-Confidential Registry of Marijuana Users, they should have stated that in clear language. Section 5 (c) has loopholes big enough for the government to easily subvert.

13) A64 funds marijuana police to prosecute more crimes.

The Department of Revenue created the first law enforcement agency in the country dedicated strictly to policing marijuana. The Medical Marijuana Criminal Enforcement Division (MMCED) of the DOR is the best-funded law enforcement agency in the state. This has resulted in more harassment and discrimination against medical marijuana users. A64 will fund the DOR to create a Marijuana Criminal Enforcement Division (MCED), resulting in more police investigating and punishing more marijuana crimes than ever before.

14) Home cultivation may require registry.

A64 does not specifically prohibit the DOR from setting up a registry and requiring police compliance checks for home-growers. Given that the DOR has done this for medical marijuana home-growers, it is likely they will require this for all marijuana growers under A64, thus affecting growers’ privacy in their homes.

15) Creates industrial hemp police.

A64 defines “industrial hemp” as cannabis containing 0.3% or less THC. This will require the creation of another new branch of law enforcement to confiscate plant matter from farmers and test all of it for THC. Under A64, a farmer’s entire crop may be required to be tested by the state. As we have seen with medical marijuana in Colorado, any time you put a number into a law, you create a position for a law enforcement officer to count or measure or weigh that number.

16) Industrial hemp may be banned.

A64 requires “the state legislature to enact legislation concerning the cultivation, processing, and sale of industrial hemp.” Nothing in A64 prevents the state legislature from prohibiting industrial hemp entirely when they “enact legislation concerning” industrial hemp.

17) More regulation leads to more punishment.

More regulations lead to more laws, which by definition means more prohibitions. More prohibitions lead to more violations of those prohibitions, which lead to more people getting punished, fined or jailed. True legalization would result in fewer prohibitions and thus fewer violations. As we’ve seen with medical marijuana, government regulation is prohibition in disguise.

18) A64 legalizes discrimination against marijuana users.

Section 6 (a) of A64 legalizes discrimination of marijuana users by specifically allowing an employer to fire an employee for the “use” of marijuana in the workplace. “Use” has been defined by the Colorado Court of Appeals as including its presence in your bloodstream.

See: Colorado Court of Appeals — August 18, 2011, No. 10CA1685. Beinor v. Industrial Claim Appeals Office.

Section 6 (d) allows any “person, employer, school, hospital, detention facility, corporation or any other entity who occupies, owns or controls a property” to discriminate also against medical marijuana users.

19) A64 does not create a “right” to medical marijuana and will give users a false sense of security.

By not specifically creating a constitutional “right” to marijuana, A64 fails to protect users from discrimination and prosecution. In Beinor vs ICAO, the Colorado Court of Appeals decided that Amendment 20, the medical marijuana amendment, did not specifically create a “right” because it placed “quantity limits on possession of medical marijuana, it is also apparent that the constitutional amendment was not intended to create an unfettered right to medical use of marijuana. The amendment expressly prohibits the medical use of marijuana in a way that endangers the health or well-being of any person.” All of these prohibitions, combined with the fact that the A64 does not specifically grant a “right”, proves that the authors did not intend to create a “right” to use. With the protection of marijuana use as a constitutional right, marijuana users will continue to be discriminated against and persecuted.

20) Am. 64 is financed almost entirely by out-of-staters.

Less than 1% of almost $2 million in funding came from Colorado voters. Well-funded out-of-state residents are trying to use Colorado’s easy access to the ballot to promote their own political agenda.

Denver Post: June 11, 2012: Colorado marijuana measure’s backers, foes buoyed by out-of-state support

21) Am. 64 contains no protection from federal drug laws.

A64 contains no provisions to help protect Colorado citizens from federal drug laws. It will give citizens a false sense of security and put them in jeopardy for federal prosecution.

22) Am. 64 allows local bans at any time.

A64 allows local community government to ban marijuana sales at any time. People that want to start a commercial marijuana business will be investing a significant amount of money into the endeavor. Prospective business owners should know that their businesses may be banned at any time.

23) A64 endangers families.

A64 doesn’t specifically repeal statutes that allow your children to be seized from you if you use marijuana. This law will stay on the books, and marijuana users are subject to losing their children and being charged with child abuse.

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