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Creeping decriminalization of marijuana stirs up legal issues

Jake Dimmock, co-owner of the Northwest Patient Resource Center medical marijuana dispensary, works with flowering plants in a grow room in Seattle last November. (THE ASSOCIATED PRESS)
Jake Dimmock, co-owner of the Northwest Patient Resource Center medical marijuana dispensary, works with flowering plants in a grow room in Seattle last November. (THE ASSOCIATED PRESS)
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These quips from two modern U.S. presidents highlight our changing attitudes toward marijuana in recent years.

In colonial America, marijuana, or hemp, was a favored cash crop extensively promoted and cultivated by two other “rock star” presidents, George Washington and Thomas Jefferson. Washington urged: “Make the most you can of (marijuana) and sow it everywhere,” while Jefferson considered the plant to be “of first necessity to the wealth and protection of the country.” In truth, these Founding Fathers were more concerned with the value of hemp in production of such important products as cloth and rope than as an intoxicant, but the medicinal and recreational use of cannabis is also well documented throughout history.


“… I experimented with marijuana a time or two, and I didn’t like it, and I didn’t inhale, and I never tried again.” Bill Clinton, U.S. president (1992-2000)
“When I was a kid I inhaled frequently. That was the point.” Barack Obama, U.S. president (2008-present)

In fact, “weed” was only made illegal a few years before World War II, after a national campaign of fear and disinformation with roots deep in racism and economic influence from the newly reborn liquor industry. Since President Jimmy Carter first proposed legalization in 1977 – and got a very chilly reception to say the least – some 16 states have enacted laws which allow possession, use and cultivation of marijuana for medical purposes. In November 2012, residents of Colorado and Washington became the first to end criminal prohibitions on marijuana possession for personal use.

Many say nationwide legalization is now inevitable – it’s only a question of time. It is important to note, however, that possession, use and cultivation of marijuana remains illegal under federal law, even where decriminalized under state laws. Probably more concerned with such pursuits as the economy, global climate issues and the like, federal authorities have essentially created a moratorium on enforcement so long as local growers and users comply with applicable state law. Unfortunately, many people misunderstand that decriminalizing marijuana use does not mean there are no longer any consequences from recreational or medicinal use.

In 2007, New Mexico instituted a medical marijuana law to “allow the beneficial use of medical cannabis in a regulated system for alleviating symptoms caused by debilitating medical conditions and their medical treatments.” However, our law is clear that authorized marijuana possession or use does not preclude penalties for impaired driving and other proscribed conduct.

Similarly, courts in California and Washington have upheld employment discipline, even termination, where the employee used medically sanctioned marijuana. Cases are now pending in which authorized medical marijuana users’ rights to a concealed weapon permit is challenged. A reader recently inquired whether a judge could consider a parent’s participation in New Mexico’s medical marijuana program when determining child-custody issues during a divorce case.

While I certainly don’t want to comment on pending cases, removing criminal penalties for marijuana use does not equate to unreserved social acceptance of marijuana use. Marijuana poses dangers just as does its long-legal counterpart, alcohol.

The trend toward decriminalization, perhaps even ultimate legalization, does not require the state, an employer, or a judge to turn a blind eye to the actual effects of marijuana use on a person behind the wheel, an employee performing sensitive work, or on parental responsibility issues.

Some see marijuana use as utterly benign. Others say it’s as dangerous or worse than alcohol. No doubt we soon will see a legalization initiative here in New Mexico. Then each of you can “Judge for Yourself.”

Alan M. Malott is a judge of the 2nd Judicial District Court. Before joining the court, he practiced law throughout New Mexico for 30 years and was a nationally certified civil trial specialist. If you have questions, send them to Judge Malott, P.O. Box 8305, Albuquerque, NM 87198 or email to: alan@malottlaw.com. Opinions expressed here are solely those of Judge Malott individually and not those of the court.

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