James P. Gray is a retired judge of the Orange County Superior Court. Hanna Liebman Dershowitz is an attorney in Culver City and a member of the Proposition 19 legal subcommittee. Their guest column supporting Prop. 19 appears in the Orange County Register.
We’ve tried marijuana prohibition for three-quarters of a century, and all-out war in the last four decades. These policies manifestly don’t work. What’s next? Let’s try something that heralds a new era of pragmatic, reasoned policies – Proposition 19. Here is what it will do and what it will not do.
Prop. 19 treats marijuana more like alcohol, letting adults possess or grow small amounts for personal use. And it authorizes local governments – only if they choose – to regulate and tax production and distribution. What Prop. 19 does not do: it doesn’t authorize any employee to use marijuana on the job, nor stand in the way of an employer firing someone whose work is affected by marijuana. Suggestions that Prop. 19 legalizes smoke-filled workplaces are simply uninformed and silly. The initiative clearly states that prohibitions on controlled substances in the workplace remain intact. Applicable court decisions underscore that. And several sections in the initiative explicitly preserve present laws against operating vehicles, in an employment context and otherwise. These provisions apply to consumption while driving or that renders the driver impaired. Assertions that these provisions allow use “right before climbing behind the wheel” are also silly.
Detractors appear to be worried about a narrowly crafted clause in the proposition that requires there to be some impairment of job performance for an employee to be disciplined or fired, protecting off-the-job use that has no effect on the workplace. But the effect of this clause is as it should be. You’re allowed to own a dog or drink alcohol off the job, but employers can regulate these activities in the workplace – same here.
Alarmist opponents raise the specter of a “protected class” of marijuana users because of the protective clause. But the clause is not scary. The protection extends only to activity authorized by the Act, which does not include driving while impaired by marijuana, or using marijuana in the workplace. To be absolutely clear, there will be no change at all in terms of workplace controls on driving or operating heavy machinery in workplaces – the school buses will stay as safe as they are today.
For years, prohibitionists have based marijuana laws on the assumption that all use is abuse, but this is as untrue as it is with alcohol. By identifying impairment as the condition that triggers workplace sanctions, Prop. 19 challenges the notion that use and abuse of marijuana are one and the same.
The other issue raised by opponents is road safety. Because driving laws will not change at all, officers will face the same challenges as today in determining whether drivers are competent. Sadly, no laws will prevent some people from turning that ignition key even if they are exhausted, angry or impaired by prescription drugs, illegal drugs or alcohol.
While research has shown marijuana is not as dangerous a road factor as alcohol, an added challenge with marijuana has been the lack of a simple roadside test that can determine sobriety. Luckily, that challenge is already being lessened by advances in technology. Oral swab tests that indicate recent use of marijuana are being marketed today, and may come into wider use in the future. Meanwhile, even the widespread adoption of Breathalyzers has not replaced field sobriety tests in evaluating impairment.
California has the highest number of trained drug recognition experts, and recently announced it would spend more on checkpoints than any state has ever spent. The only thing that will improve roadway safety is changing attitudes and enforcing the laws. And though technology will lessen concerns about marijuana road safety, we didn’t wait for Breathalyzers to end alcohol prohibition. These are problems of today and tomorrow, irrespective of Prop 19.
Let’s get back to work on things that matter in California. Let’s get back to work, period, with legitimate jobs and the promise of savings and new revenues that can preserve California’s crumbling institutions. Today, marijuana is California’s largest cash crop, yet is unregulated and untaxed. Let’s stop using a policy of prohibition that just does not work. We deserve better, and we can choose a better system on Nov. 2 by voting yes on Prop. 19.