Prohibition Redux: Marijuana Getting the “Alcoholic” Treatment

As civil and criminal trial lawyers here in the Garden State, a large portion of our caseload is represented by client’s who have been accused of drinking and driving. Operating a motor vehicle while under the influence of alcohol is a long-standing public safety problem here in New Jersey, which is why a great deal of time and effort is spent by state government, police agencies and our judicial system in the curbing of this admittedly dangerous activity.

Similarly, drug DUI is also viewed as a safety issue on public roadways, and so our state laws include penalties for driving under the influence of hallucinogenic, habit-forming and narcotic substances, typically grouped into what is known as controlled dangerous substances, or CDSs. Marijuana — also referred to as pot, weed, hash or cannabis — is on the prohibited CDS list.

Although New Jersey, the federal government, and most other states still view marijuana as an illicit drug when it comes to recreational use, more and more people are leaning toward the legalization of pot, even beyond the legalized “medicinal” applications that even our state has adopted. Look at the public attitude toward pot in places like Colorado and you will see there is a huge revolution in the making.

This brings us to the topic at hand: the apparently growing call for “repeal” of the laws against marijuana use across the entirety of the United States. Although movements of this kind can often take years to make any headway, the incremental loosening of state laws pertaining to medicinal use of weed, or even the wholesale legalization (as in Colorado) may result in an acceleration of the process. An editorial we ran across last month in the New York Times provides the argument that federal anti-marijuana laws are just a modern version of the 20th Century’s prohibition on alcohol and need to be changed.

Based on that op-ed piece, it took 13 years following the passage of the 18th Amendment to the U.S. Constitution for the American public (as well as government and law enforcement agencies) to become so frustrated with the consequences of prohibition that this very unpopular law was repealed. Before that legislative about-face, it was illegal to sell or possess alcohol (except for certain situations, such as private use in the home, or that needed for medical or religious purposes), which eventually made it all too obvious that the police, courts and U.S. prisons were becoming overwhelmed by the scope of public disobedience.

Effectively struck down in 1933 by the ratification of the 21st Amendment, the law supporting prohibition on alcohol stands as the only instance in American history where a constitutional amendment has been repealed. Prior to that time, the 18th Amendment prohibited alcoholic beverages in the U.S. by declaring illegal the production, transport or sale of alcohol. Changing attitudes toward marijuana are perhaps driving this comparison with the repeal of prohibition in the 1930s.

As the authors of the Times editorial point out, even with a prohibition on alcohol, people continued to drink beer, wine and hard liquor, which resulted in otherwise law-abiding citizens being cast as criminals, while crime syndicates grew up and flourished all because of the overnight illegality of a popular consumable. As the article states, more than 40 years have passed since Congress established the current ban on marijuana, which in many people’s minds has inflicting great harm on society as a whole. And for what? To prohibit a substance deemed by many to be far less dangerous than alcohol ever was.

As the Times’ editorial department makes clear, there is no perfect response to the many and varied concerns about the use of marijuana in the United States. But, similarly, the authors remind us that there are just as many open issues about the use, misuse and deleterious effects of tobacco and alcohol. To this end, based on a range of health concerns, law enforcement questions, and the overall effect on society, the scales are tilted toward the legalization of marijuana on a national level.

By taking down the federal barriers to marijuana use, the editorial suggests that the individual states will be able to decide how they wish to treat pot; whether to allow recreational or medicinal use or production and how to enforce those decisions. Keeping things at the state level would allow a continuation, according to the Times, of the social experiment that we see going on in Colorado right now.

It is interesting to note that almost three-quarters of the states are addressing at least one of three approaches to marijuana: allowing medicinal use, reducing penalties, or simply legalizing any and all uses of the substance. It’s a fair bet that everyone, at some time or another, has contemplated the social cost of existing anti-marijuana laws. In fact, based on data from the F.B.I., there were more than 650,000 arrests for marijuana possession back in 2012 (compare this to the approximately 250,000 arrests for cocaine, heroin and similar drugs).

Whether or not the thinking of the editorial board at the New York Times reflects that of lawmakers in Washington, D.C., has yet to be seen; however, there appears to be overwhelming (according to the New York Times) that marijuana-related addiction and dependence are hardly serious problems, certainly not when compared to that of alcohol and tobacco products. Will cooler heads prevail in our nation’s capital and move for a cessation of decade’s old anti-marijuana enforcement? Only time will tell.

One thing we do know, as DWI defense attorneys, is that the legalization of weed here in New Jersey will raise drug DUI enforcement issues and require a fresh review of the laws that currently penalize individuals for possession of marijuana in a motor vehicle. Until that time, we advise caution to those Garden State residents who believe they are within their rights to toke-up anytime they choose — the legislative process is a notoriously slow moving piece of machinery.

Repeal Prohibition, Again; NYTimes.com; July 26, 2014