Marijuana Q&A with Seattle City Attorney Pete Holmes

With so many questions about what happens now that marijuana will soon be legal in Washington state, the Ross and Burbank Show turned to Seattle City Attorney Pete Holmes for a Q&A about where to get it. Dave and Luke wanted to know what the cops will do now and if we’re heading for a showdown with the feds.

Dave: So where can you get it? Medical marijuana users can form collectives to grow it. Can we now create recreational collectives?

Holmes: No. That will not happen until there’s a one year rule making period. The Liquor Control Board issues regulations and licenses are developed for both growers and processors, as well as the retailers.

Dave: Does this mean we can go to existing medical marijuana places and buy pot recreationally without a prescription?

Holmes: No. If they’re complying with the law, they can only provide marijuana to authorized medical patients.

Dave: So you’re telling me that on Dec. 6, when it becomes legal to smoke pot, there will be no legal way for a recreational pot smoker to get it?

Holmes: Not legally. And again, that’s the problem with medical marijuana now. For instance, even with an authorized provider under state law, they’re still illegal under federal law.

Dave: So you’re saying under state law it wouldn’t be legal to get recreational marijuana because there’s no legal way to recreationally grow it?

Holmes: That’s correct. So what it’s aimed at are those 10,000 arrests annually across the state that are for simple possession. Not for distribution, but for simply having up to an ounce in your possession.

Luke: The City of Seattle has already made marijuana the lowest level of police priority. Can you make it lower than the lowest priority?

Holmes: Well, there was debate until I took office whether or not it was the lowest priority. When I stopped prosecuting them altogether you can’t get any lower than that. Arrests were still occurring, but there were no prosecutions. So as a practical matter, what I-502 is doing is to extend the same protection in Seattle across the state of Washington and more importantly, providing arrest protection. Now it’s not appropriate to be arrested for simple possession up to an ounce.

Luke: So essentially, after Dec. 6 if I’m sitting on my front porch or I’m inside my house and I’m smoking marijuana or consuming marijuana in some fashion and it’s less than an ounce, the police will, under no circumstance you can see, will arrest me for that?

Holmes: That’s right. It’s no longer a state crime.

Dave: But they will assume you got it legally because they’re not arresting you?

Holmes: It’s not relevant to them. If they see a transfer, that’s distribution and that remains a felony.

Dave: Suppose Luke is on his porch smoking it and he hands it to Nick, our assistant producer, who didn’t have his own. Then what happens?

Holmes: Well, I’m not sure what the visibility of that to the public is, but under I-502, remember it’s not simply legalization. There are also some regulations that go into effect on Dec. 6 that includes the DUI per se standard as well as the prohibition against public display, public consumption. This is not to allow smoking in parks or in the streets or in public view.

Dave: They can’t arrest for possession, but Luke just handed it over to another guy.

Holmes: That is technically distribution.

Luke: But I get the sense that it would be very unlikely that in that scenario, police would treat that as if it were distribution.

Holmes: It’s hard for me to imagine that police would devote resources to that kind of enforcement action.

Luke: How about using marijuana’s presence as some sort of indication that other illegal things are going on? It would not be allowable for police to use the presence of marijuana as a reason to investigate something further, correct?

Holmes: This of course hasn’t been litigated, but I believe at that point there’s not probable cause because the possession is not a crime under Washington state law. Now, it would be different if there’s a federal DEA agent, of course, but not for state law enforcement.

Luke: What do you think the DEA is going to do about this? Do you expect to see them roaming Washington state, overruling you and other local officials?

Holmes: Overruling the will of the voters? I don’t think that will happen. We do have a one year real making period before any state licensed marijuana is produced and available for sale. So I fully expect during that time, law enforcement at all levels will be engaged in conversations about how this I-502, this economic weapon, now that we have to control, illegal marijuana is going to complement other law enforcement efforts. We want to keep this out of the hands of minors and we want to make sure there’s no impaired driving and yet, we want to stop criminalizing adult conduct. So that’s what I-502 is all about.