ESSAY: Colorado’s Lessons for Recreational Marijuana Legalization

While Vermont has been moving towards becoming the first state to legalize recreational marijuana through the legislature — as opposed to through a voter initiative — some proponents of legalization have advocated learning from the experience of states that have already legalized marijuana, before following in their footsteps. An opportunity for research arose on a mid-July trip to Colorado, where a 2012 ballot initiative amended the constitution to legalize recreational marijuana.

The train from the Denver airport to downtown takes a little over 35 minutes, and from the train, many marijuana “dispensaries” are visible (the term “dispensary” is used for a retail marijuana establishment, whether it sells medical or recreational marijuana or both). Their presence is universally marked by a sign with a large green cross in a circle, like a Red Cross symbol, but green. Most of the ones visible from the airport train are adorned with artwork in Rastafarian red, green and yellow.

Downtown, dispensaries are less noticeable, perhaps because they are more discrete. Native Roots is just a few blocks from the city’s architecturally distinctive Convention Center, and it is marked simply with its name and the green cross. Descending the steel stairs from street level to the marbled walls and floor of the basement dispensary is reminiscent of entering a bank’s safety deposit box vault. The woman behind glass, checking IDs before admitting customers, adds to the sense of a bank vault. Men in suits were among the clientele on a weekday morning — as were sandal-shod folks in more casual clothes. With all the products in packaging, behind glass, there was no noticeable smell of marijuana in the air.

Vinnie Masucci was the “budtender” who showed me the edibles and smokeables at Native Roots. He said he moved to Colorado two years ago. “I came here from New Jersey to work in the industry. It’s amazing to see the job growth, and the professionalism behind it. Native Roots is a very professional store. We want to make sure you are educated when you leave here, that you get what you want and that you have a smile on your face when you leave.”

Here in Vermont, the challenges of detecting and prosecuting those who are driving while stoned has been a significant part of the conversation around legalization. Governor Phil Scott, in his letter vetoing the legislature’s legalization bill in May, cited a need to establish an impairment threshold for drivers and a means of testing impairment. What can Colorado teach us?

For one thing, driving while stoned is not even on the list of top issues for the Colorado Association of Chiefs of Police. Annmarie Jensen is their lobbyist and spokesperson. When asked about advice to Vermont legislators considering legalization — even though the call was set up specifically to talk about driving while stoned — she did not mention the issue. Her foremost advice is that it is going to cost a lot of money to set up the regulatory and enforcement mechanisms, so taxes on marijuana can’t be counted on to raise extra money for  the state. She also said that there needs to be sufficient funding for prevention programs, to keep kids in school from starting on marijuana. And she added a warning about an indirect economic effect. She had spoken earlier that day with an employer looking for people to operate heavy equipment. “They just opened a new manufacturing facility in Colorado, and they’re having trouble finding people who can pass a drug test. They can’t hire people.”

About driving while stoned, Jensen said police chiefs are “looking for bright lines about what behavior is legal and what behavior is illegal. That has been more difficult with marijuana than with alcohol … There are not good, accurate tests for impairment … People metabolize marijuana differently, and their impairment is really difficult to measure objectively.”

Jensen said Colorado depends on officers who are trained Drug Recognition Experts to determine drivers’ level of impairment, combined with what she called the “not-very-good tests” of blood levels of THC (the chemical in marijuana that most contributes to the “high”). She said, “It’s not a very precise measurement; it’s subjective. But we’re doing the best we can. But when you take an officer’s judgement combined with an imprecise test to a jury, it becomes very difficult to enforce the law.”

Ed Wood has been working for better standards for reducing driving under the influence of drugs. DUID Victim Voices is his one-man organization, founded after his 33-year-old son was killed in a crash caused by drivers he said were tested to have methamphetamine and metabolites of marijuana and heroin in their blood. (There were two “drivers” tested, he said, because the person on the passenger side was holding the wheel while the person behind the wheel took off her sweater.)

Wood can explain in great deal the biological reasons why no marijuana blood test can show impairment as clearly as the blood alcohol test. THC is fat soluble, so it tends to leave the blood very quickly and lodge in places like the brain, where it can impair the user at the same time that blood alcohol levels are low. Wood advocates a tandem test for drugged driving: the arresting officer’s observations of the driver’s demeanor, behavior, and observable impairment, and proof that the driver had any amount of an impairing substance in his or her blood, oral fluid or breath.

In the meantime, Colorado is just trying to get a handle on what kind of drugged driving problem it has. Wood lobbied for legislation, supported by the police chiefs’ association and other groups, to compile information that’s already collected about drugged driving and crashes, and to systematically collect the information going forward. It was signed into law in June; the first report is scheduled for March 2018.

Jonathan Singer is one of the sponsors of the legislation. He calls himself a legalization advocate, and he acknowledges the difficulties of testing for marijuana impairment. He told me, “The science is not 100 percent of the way there (to providing a clear test of impairment.)” But he cites the billions of dollars the country has spent in combating illegal drugs, the number of “largely poor people and minorities” imprisoned on drug charges and says that drug use has, nonetheless, stayed at the same level. Singer says, “One question I always ask is, do you want a hundred headaches tomorrow or do you want to stamp out the failed drug war? I’d rather have a hundred small headaches on policy than perpetuate a failed drug war.”

Carl Etnier hosts Homegrown Radio News and Relocalizing Vermont on WGDR Plainfield, 91.1 FM, Goddard College Community Radio. Disclosure: He has publicly admitted that he has enjoyed marijuana recreationally, and that he wishes to do so without fear of legal penalties. He also testified to legislative committees a couple years ago that he thought it was wise at that time to observe other states’ efforts before permitting a cannabis industry to get established here.