BILL ANALYSIS
AB 390
Page 1
Date of Hearing: January 12, 2010
Counsel: Kimberly A. Horiuchi
ASSEMBLY COMMITTEE ON PUBLIC SAFETY
Tom Ammiano, Chair
AB 390 (Ammiano) - As Amended: January 4, 2010
SUMMARY : Legalizes the possession, sale, cultivation and
other conduct relating to marijuana by persons over the age of
21. Specifically, this bill :
1)Declares the intent of the Legislature to enact the Marijuana
Control, Regulation, and Education Act, to do all of the
following:
a) To legalize marijuana and its derivatives.
b) To remove all existing civil and criminal penalties for
adults 21 years of age or older who cultivate, possess,
transport, sell, or use marijuana, without impacting
existing laws proscribing dangerous activities while under
the influence of marijuana, or certain conduct that exposes
younger persons to marijuana.
c) To regulate marijuana in order to more effectively limit
access to marijuana by minors.
d) To deprive the criminal market of revenue derived from
the cultivation, smuggling, and sale of marijuana.
e) To reduce the violence associated with the criminal
market for marijuana.
f) To prevent the environmental degradation that results
from the production and eradication of marijuana associated
with the criminal market.
g) To address the overall failure of marijuana prohibition
to protect the public health and safety.
h) To raise funds and to discourage substance abuse by the
imposition of a substantial fee on the legal sale of
AB 390
Page 2
marijuana, the proceeds of which will support drug
education and awareness.
i) To impose a set of regulations and laws concerning
marijuana comparable to those imposed on alcohol.
j) To impose substantial fines for violations of the
noncommercial regulations and laws concerning marijuana,
which will be applicable until and after commercial
marijuana is available by virtue of future changes in
federal law.
aa) To prevent state and local agencies from supporting any
prosecution for federal or other crimes relating to
marijuana that are inconsistent with those provided in this
bill.
bb) To exclude from the fees and regulations imposed by this
act marijuana that is for uses other than smoking or
ingestion, and to exclude medicinal marijuana from fees
under these provisions.
cc) To encourage the Federal Government to reconsider its
policies concerning marijuana, and to change its laws
accordingly.
1)Authorizes the use of off-sale general license for sale, to
consumers only and not for resale, of marijuana, concentrated
cannabis, or any of its derivatives.
2)States provisions of this bill are an exercise of police
powers of the state for the protection of the safety, welfare,
health, peace, and morals of the people of the state, to
eliminate the evils of unlicensed and unlawful production,
selling and disposing of marijuana and to promote temperance
in the use and consumption of marijuana. It is hereby
declared that the subject that the subject matter of this
legislation involves the highest degree of economic, social
and moral well-being and the safety of the state and of its
people. All provisions of this bill shall be liberally
construed for the accomplishment of these purposes.
3)Declares the intent of the Legislature to ensure the strict,
honest, impartial and uniform administration and enforcement
of marijuana laws throughout the state governing the
AB 390
Page 3
production, sale, disposal, and promotion of temperance in the
use and consumption of marijuana.
4)Requires the Department of Alcoholic Beverage Control (ABC) to
administer and enforce the terms of legalized marijuana, as
defined in this bill. ABC shall make and prescribe those
reasonable rules as may be necessary or proper to carry out
the purpose and intent of this bill, and to enable it to
exercise the powers and perform the duties required.
5)Defines marijuana as all parts of the plant Cannabis sativa
L., whether growing or not; the seeds thereof; the resin
extracted from any part of the plant; concentrated cannabis;
and every compound, manufacture, salt, derivative, mixture, or
preparation of the plant, its seeds or resin. It does not
include the mature stalks of the plant, fiber produced from
the stalks, oil or cake made from the seeds of the plant, any
other compound, manufacture, salt, derivative, mixture, or
preparation of the mature stalks (except extracted resin),
fiber, oil, or cake, or the sterilized seed of the plant that
is incapable of germination.
6)Provides that "marijuana" does not include "medical marijuana"
regulated in the Health and Safety Code.
7)Requires ABC to license commercial cultivators of marijuana.
The fee for the license shall be set at an amount that will
reasonably cover to costs of assuring compliance with the
regulations to be issued, but may not exceed $5,000 for an
initial application, or $2,500 per year for each annual
renewal.
8)Mandates ABC require background checks of applicants. At the
request of ABC or other local agencies, the Attorney General
(AG) shall provide summary criminal history information to
ABC, as specified.
9)Authorizes ABC, with consideration for the risks posed by
cultivation of a valuable crop with public health implications
that is subject to significant fees, to issue and enforce
regulations concerning commercial cultivators of marijuana
that provide for all of the following:
a) Adequate security to reasonably protect against
unauthorized access to the marijuana crop at all stages of
AB 390
Page 4
cultivation, harvesting, drying, processing, packing,
packaging, labeling and delivery to licensed sales outlets
or wholesalers. Each licensee shall be required to provide
a detailed crop security plan, along with satisfactory
proof of the financial ability of the licensee to provide
for that security.
b) Appropriate employment rules, including the rule that a
person under 21 years of age may not have access to
marijuana during cultivation, storage, drying, packing, or
at any other time.
c) Safeguards to assure that a person under the age of 21
may not transport marijuana on behalf of a commercial buyer
or commercial seller.
d) Restrictions to ensure that marijuana is not used or
consumed on the premises of a commercial cultivator.
e) An inspection and tracking system to reasonably ensure
that all marijuana produced by the cultivator that is
eventually sold is assessed under the Revenue and Taxation
Code.
f) Recordkeeping consistent with the regulatory needs of
ABC.
g) Ensure that all applicable statutory environmental and
agricultural requirements are followed in the cultivation
of marijuana.
h) Adequate labeling of packages of marijuana to describe
the purity, potency, processing and any adulteration of the
product.
10)Requires ABC to license marijuana wholesalers, who shall be
allowed to package and prepare marijuana for sale, and who
shall be authorized to sell marijuana to licensed sales
outlets. The fee for the license shall be set in an amount
that will reasonably cover the costs of compliance with the
regulations to be issued, but may not exceed $5,000 for an
initial application, or $2,500 per year for each annual
renewal.
11)Requires ABC to issue and enforce regulations concerning the
AB 390
Page 5
sale of marijuana by off-sale general licensees. Those
regulations shall provide for all of the following:
a) An inspection and tracking system to ensure that
marijuana may not be sold by a licensee if that marijuana
has not been made subject to an assessment provided for in
the Revenue and Tax Code.
b) Marijuana shall be kept behind a counter in an area not
directly accessible to any customer, and shall be stored in
a case that is locked between sales.
c) Marijuana may not be sold to anyone person under the age
of 21.
d) Punishments for violations in actions against licensees
that are in substantial accord with those applicable to the
regulation of alcohol sales, including heavy penalties for
permitting persons under 21 years of age to purchase these
products and other appropriate regulatory provisions
concerning such matters as the time of sale, deliveries,
and signage. It is the intent of the people in enacting
this act that the regulation of marijuana sales be
consistent with the statutory guidance regarding alcohol
sales to the extent that consistency is feasible.
e) Recordkeeping consistent with the regulatory needs of
ABC.
12)States beginning 30 days after the operative date of the
regulations issued, ABC shall begin to enforce the
regulations, as specified.
13)Eliminates marijuana-related misdemeanors from provisions of
law allowing for criminal records destruction after a period
of two years.
14)Amends various provisions of law prohibiting or regulating
the use of tobacco to include marijuana.
15)Eliminates objects designed to use or market marijuana,
hashish or hashish oil or designed to clean or refine
marijuana from the definition of "drug paraphernalia", as
specified.
AB 390
Page 6
16)Deletes tetrahydrocannabinols from the list of Schedule I
drugs and instead includes synthetic tetrahydrocannabinols not
derived from cannabis plants.
17)Eliminates existing penalties for possession of marijuana
with the exception of penalties for possession of any amount
of marijuana on school campus and sale to a person under the
age of 18.
18)Deletes existing penalties for possession for sale and
transportation of marijuana, as specified, and makes
conforming amendments to provisions related to denial of
probation.
19)Removes crimes of possession, sale or growth of marijuana
from the list of offenses for which property may be the
subject of asset forfeiture.
20)Eliminates possession and growth of marijuana from provisions
of law defining the terms "marketing of illegal controlled
substances" and "specified illegal controlled substances".
21)States it is lawful and not a violation of California law for
a person 21 years of age or older to smoke or ingest marijuana
in one's home, or in any private residence, or upon the
grounds of that home or residence not visible from any public
place or neighboring property, with the consent of a resident
21 years of age or older.
22)Creates an infraction to smoke marijuana in a public place.
23)States it is lawful and not a violation of California law,
except as specified, for a person 21 years of age or older to
be under the influence of marijuana.
24)Provides that it is unlawful for a person not licensed, as
specified, to cultivate marijuana, except in compliance with
the following requirements:
a) Marijuana may be cultivated only by persons 21 years of
age or older.
b) Marijuana may be cultivated only in a location in the
home or yard in which the marijuana is not visible from any
public place.
AB 390
Page 7
c) "Public place" does not include air space, or any place
from which a viewer would violate the cultivator's
legitimate expectation of privacy.
d) Each person 21 years of age or older may have in
cultivation no more than 6 mature plants at any given time.
e) A licensed nursery may cultivate seedlings for sale to
persons 21 years of age or older, but shall destroy any
seedling if it has not been purchased by a consumer before
it reaches maturity.
f) Aside from the sale of seedlings by a licensed nursery,
marijuana cultivated pursuant to this section may not be
sold.
25)Punishes unlawful cultivation of marijuana as an infraction,
punishable by a fine of up to $100.
26)States that selling, providing, or transporting marijuana, or
possessing marijuana with the intent to sell, provide, or
transport that marijuana, into a state in which the receiving,
purchasing, or possessing marijuana would violate that state's
law is a felony.
27)States possession or use of marijuana by a person under 21
years of age is an infraction, punishable by a fine of up to
$100. Any other violation of these provisions, as specified,
is an infraction, punishable by a fine of up to $100.
28)Provides that notwithstanding any other law, it is lawful and
not a violation of California law to possess, transport, or
sell the mature stalks of the plant Cannabis sativa L., fiber
produced from the stalks, oil or cake made from the seeds of
the plant, any other compound, manufacture, salt, derivative,
mixture, or preparation of the mature stalks (except the
extracted resin, which is regulated as marijuana), fiber, oil,
or cake, or the sterilized seed of the plant that is incapable
of germination.
29)Provides that state or local funds may not be expended on,
and state or local law enforcement or other personnel may not
assist in, the enforcement of any federal or other laws that
are inconsistent with the provisions of this bill, or provide
AB 390
Page 8
for greater sanctions for conduct prohibited by this bill.
30)Provides that this bill may not be construed to affect or
limit any criminal statute that forbids impairment while
engaging in dangerous activities like driving, or that
penalizes bringing marijuana to a school enrolling pupils in
kindergarten or any of grades 1 to 12, inclusive. This bill
may not be construed to affect the rights of employers
concerning employees who use marijuana.
31)Declares the intent of the people in enacting portions of
this bill to discourage drug use and to raise revenue for drug
education and drug awareness programs by enacting a
supplemental fee on marijuana.
32)Defines the following terms:
a) "Marijuana" includes all marijuana, concentrated
cannabis, and their derivatives, except that marijuana
containing less than one-half of 1 percent
tetrahydrocannabinol by weight is not subject to this
supplemental fee. However, no fee shall be imposed under
this part on marijuana used medicinally with a doctor's
recommendation, as specified.
b) "Retailer" means any retailer licensed pursuant to
provisions of this bill who sells marijuana at retail.
33)Provides that until a different fee is determined, as
specified, there is hereby imposed a fee of $50 per ounce
(avoirdupois) for the sale of marijuana sold at retail in
California on or after the date determined by the bill.
34)States that to the extent feasible or practicable, the
relevant provisions of the Revenue and Taxation Code shall
govern returns and payments, determinations, collections of
fees, overpayments and refunds, and administration, as
specified.
35)Provides that the Franchise Tax Board (FTB) shall enforce
relevant provisions and may prescribe, adopt, and enforce
rules and regulations relating to the administration and
enforcement of this part. The FTB may prescribe the extent to
which any ruling and regulation shall be applied without
retroactive effect.
AB 390
Page 9
36)States any amount required to be paid to the state, as
specified, shall be paid to the FTB in the form of a
remittance payable to the State Board of Equalization (BOE).
The FTB shall transmit the payments to the Treasurer to be
deposited in the Drug Abuse Prevention Supplemental Funding
Account, which is hereby created in the General Fund. Upon
appropriation by the Legislature, the moneys in the fund shall
be expended exclusively for drug education, awareness, and
rehabilitation programs under the jurisdiction of the
Department of Alcohol and Drug Programs, or any successor to
that agency.
37)Provides that the fee imposed, as specified, shall be
annually reviewed by the Department of Alcohol and Drug
Programs (ADP), or any successor to that agency, to determine
whether a fee less than $50, as specified, will provide
sufficient resources to support its drug education, awareness,
and rehabilitation programs. Based on this annual review, the
Department of ADP shall adjust that fee to an amount not to
exceed $50 per ounce (avoirdupois) of marijuana that is
necessary to fund its drug education, awareness, and
rehabilitation programs, and that amount shall be collected in
place of the fee, as specified.
38)Eliminates existing prohibitions on possession of marijuana
in a vehicle.
39)States the provisions of this bill are severable.
EXISTING LAW :
1)Provides that "marijuana" is all parts of the plant Cannabis
sativa L., whether growing or not; the seeds thereof; the
resin extracted from any part of the plant; and every
compound, manufacture, salt, derivative, mixture, or
preparation of the plant, its seeds or resin. It does not
include the mature stalks of the plant, fiber produced from
the stalks, oil or cake made from the seeds of the plant, any
other compound, manufacture, salt, derivative, mixture, or
preparation of the mature stalks (except the resin extracted
there from), fiber, oil, or cake, or the sterilized seed of
the plant which is incapable of germination. [Health & Safety
Code (HSC) Section 11018.]
AB 390
Page 10
2)States that except as authorized by law, every person who
possesses any concentrated cannabis shall be punished by
imprisonment in the county jail for a period of not more than
one year, by a fine of not more than $500, by both such fine
and imprisonment, or shall be punished by imprisonment in the
state prison. [HSC Section 11357(a).]
3)States that except as authorized by law, every person who
possesses not more than 28.5 grams of marijuana, other than
concentrated cannabis, is guilty of a misdemeanor and shall be
punished by a fine of not more than $100. Notwithstanding
other provisions of law, if such person has been previously
convicted three or more times of an offense described in this
subdivision during the two-year period immediately preceding
the date of commission of the violation to be charged, the
previous convictions shall also be charged in the accusatory
pleading; if found to be true by the jury upon a jury trial or
by the court upon a court trial or if admitted by the person,
the provisions of existing law shall be applicable to him or
her, and the court shall divert and refer him or her for
education, treatment, or rehabilitation, without a court
hearing or determination or the concurrence of the district
attorney, to an appropriate community program which will
accept him or her. If the person is so diverted and referred,
he or she shall not be subject to the fine specified in this
subdivision. If no community program will accept him or her,
the person shall be subject to the fine specified in this
subdivision. In any case in which a person is arrested for a
violation of this subdivision and does not demand to be taken
before a magistrate, such person shall be released by the
arresting officer upon presentation of satisfactory evidence
of identity and giving his or her written promise to appear in
court, as provided in existing law, and shall not be subjected
to booking. [HSC Section 11357(b).]
4)States that except as authorized by law, every person who
possesses more than 28.5 grams of marijuana, other than
concentrated cannabis, shall be punished by imprisonment in
the county jail for a period of not more than six months, by a
fine of not more than $500, or by both such fine and
imprisonment. [HSC Section 11357(c).]
5)States that except as authorized by law, every person 18 years
of age or over who possesses not more than 28.5 grams of
marijuana, other than concentrated cannabis, upon the grounds
AB 390
Page 11
of, or within, any school providing instruction in
Kindergarten or any of Grades 1 through 12 during hours the
school is open for classes or school-related programs is
guilty of a misdemeanor and shall be punished by a fine of not
more than $500, by imprisonment in the county jail for a
period of not more than 10 days, or both. [HSC Section
11357(d).]
6)Provides that every person who possesses for sale any
marijuana, except as otherwise provided by law, shall be
punished by imprisonment in the state prison. (HSC Section
11359.)
FISCAL EFFECT : Unknown
COMMENTS :
1)Author's Statement : According to the author, "California's
prison spending is out of control. Since 2000, prison costs
have grown 50% to over $10 billion - about 10% of the state
budget. It now costs $46,000 to incarcerate one person for
one year.
"In order to slow the increased costs of incarceration in the
state, California must slow the prison population growth.
Since the late 1980s, the prison population has increased by
75% to over 170,000 - nearly three times faster than the
general adult population. Meanwhile, the number of
incarcerated nonviolent offenders skyrocketed from 20,000 to
70,000.
"Most of those nonviolent offenders incarcerated in the state
prison system have been convicted of relatively minor drug
offenses. Many of these drug offenses involve marijuana - a
drug which modern science and public opinion have suggested
should not be classified as a schedule I drug. In addition to
the cost of incarcerating those convicted of possession, sale,
transportation, or cultivation of marijuana, the state and
local governments incur the extraordinary costs of enforcing
these laws and trying suspects in court.
"California is experiencing the worst economic recession it has
seen since the Great Depression. With the downturn in the
housing market and the meltdown of the banking industry, the
state has been forced to cut vital programs and social
AB 390
Page 12
services at an alarming rate. More Californians than ever are
in need of government assistance yet our state eliminated many
important programs in the most recent budget. California is in
desperate need of new revenue sources.
"Among those programs cut were drug addiction treatment programs
required by Proposition 36. That initiative was passed by the
voters in 2000 to allow first- and second-time nonviolent,
simple drug possession offenders the opportunity to receive
substance abuse treatment instead of incarceration.
"It is anticipated that this bill would inject nearly $1 billion
into a special fund dedicated to drug education, awareness,
and rehabilitation under the jurisdiction of ADP. The current
total budget for this department is $661 million and is
partially covered by existing dedicated revenue sources.
$189.5 million comes from the General Fund but other funding
sources could be legally redirected to other programs.
Proposition 36 treatment programs are virtually unfunded now,
but previously received $120 million, annually, from 2000
through 2006. According to the 2008 UCLA evaluation of
Proposition 36 full funding of the program would require $250
million, annually.
"It is clear that the revenue generated by this bill could
offset hundreds of millions in existing General Fund
obligations, fully fund Proposition 36 treatment programs, and
still provide additional new resources for drug awareness and
prevention.
2)Federal Preemption : This bill proposes to legalize marijuana,
a substance currently prohibited under both state and federal
law. This bill has no impact on existing federal prohibition
and punishment of possession, cultivation and sale of
marijuana. A state statute that conflicts with federal law
creates several issues of enforcement.
First, courts may have to decide if the federal law is itself
unconstitutional, clearing the way for state law. If the
federal statute is ruled constitutional as applied to the
state, the courts may have to determine if the state law is
constitutional. If so, it is possible for a state law and a
federal law to be in conflict but co-exist. California's
Compassionate Use Act of 1996 is considered a valid state law,
AB 390
Page 13
but was determined to have no effect on federal criminal law
related to marijuana; hence, the State may grant criminal
immunity for actions still illegal and punishable under
federal law.
Second, courts may determine that a state statute is
unconstitutional because it is in conflict with federal law.
This argument is grounded in the U.S. Constitution's Supremacy
Clause [U.S. Const. Art. VI 2]. This provision allows
federal law to trump state law under a theory of preemption.
As briefly explained above, the idea of preemption takes many
forms and is rooted in the Supremacy Clause in Art. VI 2 of
the United States Constitution, which states, "The
Constitution, and the laws of the United States which shall be
made in pursuance thereof; and all treaties made, or which
shall be made under the authority of the United States shall
be supreme law of the land; and the judges in every state
shall be bound thereby, any thing in the Constitution or laws
of any state to the contrary notwithstanding." [U.S. Const.,
art. VI, 2].
The Supremacy Clause allows Congress the power to preempt state
law. State law that conflicts with a federal statute is
without effect. [Jevne vs. Superior Court (2005) 35 Cal.4th
935, 949; County of San Diego vs. San Diego NORML (hereinafter
San Diego NORML) (2008) 165 Cal.App.4th 798, 819.]
There are four variations of federal preemption: express,
conflict, obstacle and field. Express preemption arises when
Congress defines explicitly the extent to which its enactments
pre-empt state law. Pre-emption fundamentally is a question
of congressional intent; and when Congress has made its intent
known through explicit statutory language, it is obvious when
the states are preempted from acting differently. Second,
conflict preemption will be found when simultaneous compliance
with both state and federal directives is impossible. Third,
obstacle preemption arises when under the circumstances of a
particular case, the challenged state law stands as an
obstacle to the accomplishment and execution of the full
purposes and objectives of Congress. Finally, field
preemption, i.e., congressional intent to pre-empt all state
law in a particular area, applies where the scheme of federal
regulation is sufficiently comprehensive to make reasonable
the inference that Congress left no room for supplementary
AB 390
Page 14
state regulation. [Viva! Internat. Voice for Animals vs.
Adidas Promotional Retail Operations (2007) 41 Cal.4th 929,
935-936; San Diego NORML at 819.]
The federal Controlled Substances Act (CSA) prohibits
possession, distribution and manufacture of marijuana.
However, Congress stated it did not intent to preempt the
state on the issue of drug regulation. The CSA explicitly
contemplates a role for the states in regulating controlled
substances. Federal law states:
"No provision of this title shall be construed as indicating an
intent on the part of the Congress to occupy the field in
which that provision operates, including criminal penalties,
to the exclusion of any State law on the same subject matter
which would otherwise be within the authority of the State,
unless there is a positive conflict between that provision of
this title and that State law so that the two cannot
consistently stand together. [21 U.S.C. 903].
Hence, the federal CSA does not seem to expressly preempt state
law and limits preemption to cases of positive conflict.
"Because Congress provided that the CSA preempted only laws
positively conflicted with the CSA so that the two sets of
laws could not consistently stand together, and omitted any
reference to an intent to preempt laws posing an obstacle to
the CSA, we interpret 21 USCS 903 as preempting only those
state laws that positively conflict with the CSA so that
simultaneous compliance with both sets of laws is impossible."
[San Diego NORML)(2008) 165 Cal. App. 4th 798, 825, review
denied 2008 Cal. LEXIS 11986 (September 26), review denied
2009 U.S. LEXIS 3594 (2009).] The Court of Appeals in San
Diego NORML went on to explain:
"Although we conclude that [18 USCS Section 903] signifies
Congress's intent to maintain the power of States to elect 'to
'serve as a laboratory' in the trial of 'novel social and
economic experiments without risk to the rest of the country'
(internal citation omitted) by preserving all state laws that
do not positively conflict with the CSA, we also conclude the
identification laws are not preempted even if Congress had
intended to preempt laws posing an obstacle to the CSA.
Although state laws may be preempted under obstacle preemption
when the law 'stands as an obstacle to the accomplishment and
execution of the full purposes and objectives of Congress'
AB 390
Page 15
(internal citation omitted), not every state law posing some
de minimus impediment will be preempted. To the contrary,
'[d]isplacement will occur only where, as we have variously
described, a 'significant conflict' exists between an
identifiable 'federal policy or interest and the [operation]
of state law,' [citation] or the application of state law
would 'frustrate specific objectives' ? [citation].' [Boyle
v. United Technologies Corp. (1988) 487 U.S. 500, 507, italics
added.] Indeed, Boyle implicitly recognized that when
Congress has legislated in a field that the states have
traditionally occupied, rather than in an area of unique
federal concern, obstacle preemption requires an even sharper
conflict with federal policy before the state statute will be
invalidated." [San Diego NORML at 826]
Although the San Diego NORML case affirmed the judgment of the
lower court that providing identification cards as authorized
by the California's Compassionate Use Act were not preempted,
laws pertaining to medical marijuana are considerably narrower
than outright legalization. It is unclear whether the courts
would take such a strict view of conflict preemption when
applied to a larger policy change like legalized marijuana.
It important to note, however, that both the California and
U.S. Supreme Court declined to hear this case, giving at least
tacit approval of its holding, albeit quite narrow in scope.
Also important to note is the identification cards at issue in
San Diego NORML explicitly stated a person may still be
prosecuted under federal law. As briefly explained above,
state laws may not provide immunity from federal prosecution
unless the federal statute is ruled an unconstitutional use of
federal authority. Federal authority may be found in the
interstate commerce clause.
It is also possible that creating a state structure to legalize
and regulate marijuana rather than just eliminating statutes
that penalize possession and/or cultivation of marijuana may
be construed as obstacle preemption. As noted above, where
the statute at issue is not an area of unique federal concern,
there must be a "sharp conflict" with federal policy for the
state statute to be invalid. [Boyle at 506.] Provisions of
this bill authorize the cultivation and sale of marijuana on
specified circumstances. Although it seems likely that the
courts will not see drug policy as a unique federal concern,
legalization and regulation may also be seen as the sort of
sharp conflict that rises to the level of obstacle preemption.
AB 390
Page 16
3)Interstate Commerce Clause : A significant way in which the
Federal Government regulates state conduct is through the
interstate commerce clause. The United States Constitution
states that of the powers granted to Congress is "[the power]
[t]o regulate commerce with foreign nations, and among the
several states, and with the Indian Tribes". (United State
Constitution Article I, Section 8.)
The CSA defined five schedules of narcotics based on medical
uses and the likelihood of addiction. (21 USCS Sections
801-844.) The Act defines "marijuana" as "all parts of the
plant Cannabis sativa L., whether growing or not; the seeds
thereof; the resin extracted from any part of such plant; and
every compound, manufacture, salt, derivative, mixture, or
preparation of such plant, its seeds or resin. Such term does
not include the mature stalks of such plant, fiber produced
from such stalks, oil or cake made from the seeds of such
plant, any other compound, manufacture, salt, derivative,
mixture, or preparation of such mature stalks (except the
resin extracted there from), fiber, oil, or cake, or the
sterilized seed of such plant which is incapable of
germination." [21 USCS Section 802(16).] California has also
adopted this definition and similarly characterizes marijuana
as a Schedule I controlled substance. Schedule I controlled
substances incur the highest penalties for possession, use and
sales and is perceived as having little or no medical purpose.
(See HSC Section 11018.)
The United States Supreme Court ruled that Congress is within
its right to supersede state drug laws because even intrastate
manufacturing and sales affects a national and international
drug trade that poses a risk to the United States as a whole.
[21 USCS Section 801; Gonzales vs. Raich (hereinafter Raich)
(2004)545 U.S. 1, 17.]
The Federal Government may use the interstate commerce clause to
affect state law if the activity regulates the use of the
channels of interstate commerce, the instrumentalities of
interstate commerce, and activities that substantially affect
interstate commerce. [Raich at 15; Lopez v. U.S. (1995) 514
US 549.] In viewing those factors, the court has held that if
legislators have a rational basis for believing that a
regulation affects interstate commerce and the means chosen
AB 390
Page 17
are reasonable and appropriate, congressional action will
probably be deemed a fair use of the interstate commerce
clause. [Heart of Atlanta of Atlanta Motel vs. United States
(1964) 379 U.S. 241 and Katzenbach vs. McClung (1964) 379 U.S.
294.]
There are two analogous cases that might shed light on whether
the State of California may amend its marijuana statute in
manner different than the federal statute. First, in Wickard
vs. Filburn, the Supreme Court held that the Agricultural
Adjustment Act of 1938 permitted the Secretary of Agriculture
to regulate the growth and consumption of wheat on every farm
in the United States. The Court reasoned that even one
farmer's growth and consumption because of the "cumulative
effect" each farmer might have on the overall wheat industry
and, hence, the national economy. [Wickard vs. Filburn (1942)
317 U.S. 111.]
Second, in Gonzales vs. Raich, the U.S. Supreme Court, relying
heavily on the aforementioned Wickard case, held that
California may exempt marijuana for medicinal purposes from
its own criminal possession statute but that has no effect on
federal law. The court based its ruling on the idea that use
of "any commodity, be it wheat or marijuana, has a substantial
effect on the supply and demand in the national market for
that commodity." [Raich at 2208.]
It is unclear how legalizing marijuana in the State of
California will affect a federal prohibition on possession of
marijuana. At the very least, a person may still be subject
to federal arrest and prosecution for possession, distribution
and manufacturing. Therefore, legalization in California
would not immunize a person from a substantial federal prison
sentence. The State of California should have an interest in
providing some comfort to its citizens that compliance with
state law is, by definition, lawful conduct.
4)Tenth Amendment : As explained above, the Supremacy Clause in
the U.S. Constitution allows Congress to regulate various
aspects of interstate commerce and otherwise limit state
action. However, such powers are limited by the State's right
to act. Tenth Amendment jurisprudence has expanded and
contracted over the past two hundred years. Although the
first ten amendments are referred to as the "Bill of Rights",
the Tenth Amendment is different than the first nine and
AB 390
Page 18
provides, "The powers not delegated to the United States by
the Constitution, nor prohibited by it to the States, are
reserved to the States respectively, or to the People." [U.S.
Const. Am. 10.] The Tenth Amendment is not an individual
right but rather a recognition of the states' rights in
relationship to the Federal Government. This amendment
though, has been largely ignored. The landmark case of
McCulloch vs. Maryland (1819) 17 U.S. (4 Wheat.) was the first
to recognize federal constitutional limitations on the right
of states to enact contrary laws. [Stephens & Scheb, American
Constitutional Law, Vol. II (2008), p. 15; Mayer, Justice
Clarence Thomas and the Supreme Court's Rediscovery of the
Tenth Amendment (hereinafter Mayer), (1996) 25 Cap. U.L. Rev.
339, 362]. During the years following the New Deal, the U.S.
Supreme Court greatly limited the Tenth Amendment as a
restraint on federal power and particularly the interstate
commerce clause. [See Wickard at 124; NLRB vs. Jones &
Laughlin (1937) 301 U.S. 1, 30; Mayer at 379.]
The Tenth Amendment lay mostly dormant until U.S. vs. Lopez
(1995) 514 U.S. 549 interpreted the application of the
Gun-Free School Zones (GFSZ) Act of 1990. The Lopez Court
struck down as unconstitutional the federal GFSZ because it
exceeded congressional authority under the Commerce Clause.
[Mayer at 393]. In rejecting the Federal Government's claim
that firearms had a substantial effect on interstate commerce,
the Court stated, " . . . if we were to accept the
Government's arguments, we are hard-pressed to posit any
activity by an individual that Congress is without power to
regulate even in areas such as criminal law enforcement or
education where States historically have been sovereign."
[Lopez at 567]. The U.S. Supreme Court also rejected portions
of the Violence Against Women Act as an inappropriate use of
the interstate commerce clause in U.S. vs. Morrison (2000) 529
U.S. 598. Both these cases related to congressional efforts
apply criminal penalties to the states. Could a similar
analysis be applied to the federal Controlled Substances Act?
Also, of important note, is the distinction between
legalization and decriminalization. Would it be more squarely
constitutional to eliminate various criminal penalties related
to possession, sale or cultivation rather than legalizing
marijuana and affirmatively regulating its possession and
sale?
5)Pending Initiatives Related to Marijuana Legalization : There
AB 390
Page 19
are at least four initiatives proposing to legalize marijuana
pending signatures seeking inclusion on the November 2010
ballot. The Cannabis Control, Decriminalization, Regulation
and Taxation Act adds five new sections to the Health and
Safety Code generally legalizing use, possession and sales of
marijuana and does not amend or delete any other existing
statute criminalizing marijuana. The Regulate, Control, and
Tax Cannabis Act of 2010 also seeks to legalize possession and
cultivation of marijuana and authorizes local governments to
adopt regulations to control, license, regulate and permit
cultivation and sale of marijuana. The Jack Herer Cannabis
Hemp Initiative is similar in that it legalizes the
possession, cultivation and sale of marijuana but also
contains a broad provision repealing all laws in conflict with
the terms of this initiative and requires that all persons
incarcerated for any non-violent cannabis, hemp or marijuana
offenses be released and all related criminal convictions be
expunged from the offender's record. These three initiatives
each include language prohibiting the sale of marijuana to
persons under the age of 21. Finally, the Common Sense Act of
2010 is the shortest of all the initiatives and simply
instructs the legislature to formulate new laws to regulate
and tax the cultivation, production, transport, sale and/or
use of marijuana by January 2011. The Common Sense Act also
includes a provision requiring every member of the U.S.
Congress from California must work to remove federal criminal
penalties related to marijuana. Each initiative must obtain
433,971 valid signatures no later than April 2010 depending on
the initiative in order to qualify for the November 2010
ballot.
6)Prior Legislation :
a) SB 847 (Vasconcellos), Chapter 750, Statutes of 1999,
established the Marijuana Research Act of 1999 and provide
that the Regents of the University of California, if they
elect to do so, may implement a three-year program, the
"California Marijuana Research Program", under which funds
would be provided for studies intended to ascertain the
general medical safety and efficacy of marijuana and, if
found valuable, to develop medical guidelines for the
appropriate administration and use of marijuana.
b) SB 791 (McPherson), of the 2001-02 Legislative Session,
would have reduced simple possession of not more than 28.5
AB 390
Page 20
grams or marijuana to an infraction for the first offense
and an alternate infraction/misdemeanor for the second
offense. SB 791 failed passage on the Assembly Floor.
c) SB 420 (Vasconcellos), Chapter 875, Statutes of 2003,
establishes a voluntary registry identification card system
for patients authorized to engage in the medical use of
marijuana, and their caregivers.
d) SB 131 (Sher), of the 2003-04 Legislative Session, would
have reduced simple possession of not more than 28.5 grams
of marijuana to an infraction for the first offense, would
have reduced simple possession for a subsequent offense to
an alternate infraction/misdemeanor, and would have
increased the penalty for an offense to a fine of not more
than $250. SB 131 failed passage on the Assembly floor,
was granted reconsideration, and was never re-heard.
e) SB 797 (Romero) of the 2005-06 Legislative Session,
would have reclassified a first offense for simple
possession of not more than 28.5 grams of marijuana as an
alternate infraction/misdemeanor and increases the penalty
for the offense from $100 to $250. SB 797 failed passage
on the Assembly Floor and was moved to the Inactive File
after being granted reconsideration.
f) AB 684 (Leno), of the 2007-08 Legislative Session, would
have clarified the definition of "marijuana" contained in
the Uniformed CSA to exclude industrial hemp, except where
the plant is cultivated or processed for purposes not
expressly allowed, as specified. AB 684 was vetoed.
g) AB 2743 (Saldana), of the 2007-08 Legislative Session,
would have stated that it is the policy of the state that
its agencies and agents not cooperate in federal raids and
prosecutions for marijuana related offenses if the target
is a qualified patient. AB 2743 was moved to the Inactive
File on the Assembly Floor.
7)Arguments in Support :
a) California NORML : "AB 390 would save the state over $170
million in enforcement costs to arrest, prosecute and
imprison marijuana offenders, while reaping an addition $1
billion in much needed revenue for the state. See attached
AB 390
Page 21
financial analysis.
"The evidence is clear that California's current laws against
marijuana have failed. Criminal penalties have failed to
prevent drug use or abuse, or to protect public health or
safety. California first prohibited cannabis (or "Indian
hem") in 1913 at the behest of the state Board of Pharmacy.
At the time, cannabis use was virtually unknown, the
purpose of the law being to prevent foreign immigrants from
spreading it. Only after being prohibited did marijuana
become widely popular, eventually being used by millions of
Californians.
"Felony penalties failed to prevent an explosion of marijuana
use in the sixties and seventies. Because of rising
enforcement costs, the legislature decriminalized
possession to a misdemeanor by the Moscone Act of 1975-6.
The Moscone Act saved the state an estimated $100-200
million per year in enforcement costs, with no perceptible
impact on marijuana use. However, it failed to eliminate
prohibition-related crime, because production and sale
remained felonies.
"Subsequent years have seen continued marijuana arrests, at
the rate of 16,400 felonies and 55,200 misdemeanors per
year. Last year, arrest climbed to their highest level
since decriminalization.
"Since 1980, the number of marijuana offenders in state
prison has increased 15-fold, with no perceptible effect on
marijuana use.
"In 1983, the state introduced the CAMP marijuana eradication
program. CAMP's take has soared in recent years, reaching
an all-time record high of 2.9 million plants in 2007-8.
At $1,000 per plant, the value of the lost crop is worth
over $3 billion - money lost to California's legal economy
due to prohibition.
"The evidence is clear that all of the state's efforts have
failed utterly to eradicate marijuana use. So long as
marijuana remains illegal, the state will continue to waste
money criminalizing its citizens, searching for illegal
gardens in our parks and national forests, hunting down
smugglers and "grow houses," and generating needless
AB 390
Page 22
prohibition-related crime.
"By undermining the illicit market, AB 390 would improve
public safety in the same way that repeal of alcohol
prohibition did. Illegal producers and dealers would be
forced off the market by legally licensed suppliers, while
taxpayers would benefit from the revenues of the legal
market. Taking into account the $50/ounce tax levied under
AB 390, the price of marijuana could be expected to fall to
around $100/ounce, further reducing any remaining incentive
for illegal growing.
"As for consumption, there is no need to fear significant
adverse effects to public health or safety from legal
marijuana. This is first of all due to the unique safety
profile of marijuana. In the words of the 1990 Report of
the California Research Advisory Panel: 'an objective
consideration of marijuana shows that it is responsible for
less damage to the individual and society than are alcohol
and cigarettes.' This has been confirmed by subsequent
studies, which have consistently showed that (1) marijuana
is a significantly lesser driving hazard than alcohol, and
(2) marijuana smoke poses a negligible risk of lung cancer,
unlike tobacco. Any increase in marijuana use would
therefore have minimal negative impact on public health,
and could even be beneficial, to the extent that it might
substitute for alcohol, tobacco, and other, more harmful
drugs. In addition, legalization would break the
connection between marijuana and the illegal drug market,
decreasing the likelihood that its users would have access
to other drugs.
"Finally, it must be noted that there is no evidence that
legalization would lead to excessive marijuana and drug
abuse. This can be seen from experience in the
Netherlands, the one country where marijuana is now de
facto legally available. Surveys of drug usage in Europe
show that the marijuana usage rate in the Netherlands is
around 3.3 % , in the mid-range of other European
countries, and half that in the U.S. and California. In
India, where cannabis use was under 1%, with the highest
rate (in Calcutta) just 5.4%. More recently, a succession
of studies on decriminalization have repeatedly failed to
find any link between the harshness of criminal penalties
and marijuana usage. In particular, studies comparing San
AB 390
Page 23
Francisco to Amsterdam have found no evident differences in
usage attributable to criminal penalties in the former.
"We note that the British Indian Hemp Drugs Commission Report
of 1893-4, which remains by far the most exhaustive study
ever conducted of a legal cannabis regime, rejected
prohibition as an inadvisable policy for British India.
Instead, it concluded that 'the combination of a fixed duty
with license fees for the vend constitutes the best system
of taxation for hemp drugs'. This is precisely the system
proposed in AB 390.
"In sum, AB 390 proposes the only policy for cannabis control
that has proven historically successful and viable. We
urge the legislature to act favorably on AB 390 with the
understanding that whatever technical adjustments may be in
order, the basic framework of legal licensing and taxation
is clearly preferable to California's failed current policy
of prohibition."
b) Drug Policy Alliance : "AB 390 (Ammiano) would set up a
comprehensive system to tax and regulate marijuana and
decriminalizes possession, sale, cultivation,
transportation and other conduct relating to marijuana by
adults. If enacted, AB 390 (Ammiano) would enhance public
safety, while generating $1.3 billion in annual revenue,
and redirecting scarce law enforcement, court and other
criminal justice resources to more important matters of
public safety.
"Drug Policy Alliance supports AB 390 (Ammiano) for the
following reasons:
" Existing Marijuana Policies are a Threat to Public Health
and Safety : Marijuana prohibition creates a violent,
multibillion-dollar criminal industry that fuels drug
trafficking organizations and organized criminal groups in
Mexico and California. The safe regulation of marijuana
would undermine these criminal enterprises on both sides of
the border while boosting California's economy and
protecting Californians.
"Research shows that California spends over $980 million
annually in enforcing marijuana laws given the costs of law
enforcement, courts, and incarceration. These considerable
AB 390
Page 24
resources would be better spent on preventing and
investigating serious and violent crimes. Available
research shows that policing strategies that stringently
enforce marijuana prohibition do not produce reductions in
violent or property crimes and instead divert limited
resources from more effective law enforcement approaches.
"Existing policies of criminalizing casual, adult, marijuana
use constitute an invasion of privacy and are an example of
government overreaching. In many cases, current marijuana
policies create criminals out of otherwise law- abiding
citizens. The heavy-handed reach of the criminal law into
private conduct substantially burdens the liberty interests
of thousands of Californians. Moreover, beyond direct
criminal penalties, current policies create indirect
burdens in numerous areas concerning individual liberty,
from the ability to find a job, to paying taxes, to the
procurement of federal student loans and other public
benefits. AB 390 (Ammiano) replaces the blunt instrument
of the criminal law with a more precise and effective
system of regulation and taxation.
" Existing Marijuana Laws are Enforced in a Racially Biased
Manner : The burdens of marijuana prohibition in California
disproportionately and dramatically impact minority and
working class Americans. Despite relatively equal
marijuana consumption rates across ethnic and racial lines,
African Americans and Latinos are far more likely to be
arrested for marijuana offenses in California. African
Americans comprise approximately 6 percent of California's
total population but over 32 percent of felony marijuana
arrests and 19 percent of misdemeanor marijuana arrests.
Latinos comprised 37 percent of all misdemeanor marijuana
arrests in 2007. Additionally, a report by the California
Judicial Council Advisory Committee on Racial and Ethnic
Bias in the Courts found that: 'It is likely that the
enforcement of the drug laws has unequally affected
minority-group members, particularly African Americans.'
"Marijuana law enforcement unjustly discriminates against men
and women in communities of color, contributing to economic
and social disenfranchisement for those persons and their
families, and deteriorating public safety in communities
unjustly impacted by zealous drug enforcement and high
incarceration rates.
AB 390
Page 25
" Marijuana is a Billion-Dollar Industry that Could Generate
Considerable Revenue : Marijuana is the California's largest
de facto cash crop, conservatively valued at $13.8 billion
annually-nearly twice the value of the California's
vegetable and grape crops combined. Marijuana, if taxed
and regulated like alcohol and tobacco, would allow
taxpayer dollars currently used for marijuana enforcement
and prosecutions to be redirected to health, education,
drug treatment and other state programs. The regulation of
marijuana cultivation, distribution and sales would
generate considerable additional revenue from excise and
sales tax as well as licensing fees. California has
already collected more than $100 million in tax revenues
from roughly 400 medical cannabis dispensaries statewide
pursuant to policies established by the State Board of
Equalization. Far greater revenues would be generated as a
result of AB 390 (Ammiano) because it imposes taxes and
fees on every phase of the legal marijuana economy,
including permitting and licensure fees for cultivation,
production, manufacture, and sale; regulation and taxation
of distributors; licensing of retail outlets; sales and use
taxes; excise taxes; and income taxes on legal workers at
every level.
"For these reasons, in 2005 over 500 leading economists,
including three Nobel Laureates (the late Dr. Milton
Friedman, Dr. George Akerlof of the University of
California at Berkeley and Dr. Vernon Smith of George Mason
University) signed an open letter to the President,
Congress, Governors, and State Legislatures urging an open
and honest debate about marijuana prohibition, which 'will
favor a regime in which marijuana is legal but taxed and
regulated like other goods.'
"Regulation and Taxation will Reduce Marijuana Use by Young
People: Existing laws have resulted in a black market in
which marijuana is readily available to minors. In the
2007 Monitoring the Future survey on adolescent drug use in
the United States, nearly two fifths of 8th graders (37.4
percent), more than two thirds of all 10th graders (69
percent), and 84 percent of all high school seniors
reported marijuana as being "very easy" or 'fairly easy' to
attain. The recently released 12th Biennial California
Student Survey on Drug, Alcohol and Tobacco Use, 2007-08,
AB 390
Page 26
found that current marijuana use is more prevalent than
cigarette use among California youth in grades 7, 9 and 11;
and that marijuana is perceived as being easier to obtain,
more widely used among peers, and more widely used on
school property than are cigarettes among students in all
these grades.
"AB 390's system of taxation and regulation will reduce
access to marijuana by minors. Age restrictions and taxes
have consistently proven effective at limiting young
people's access to and consumption of alcohol and nicotine.
A meta-analysis of 112 previous studies published in the
February 2009 issue of Addiction concluded that the higher
taxes tended to reduce drinking among adult and teenage
social drinkers as well as problem drinkers. A recent
study of state tobacco taxes from 1991-2005 found that
every $1.00 in increased state tax could potentially result
in a 5.9% decrease in past-month smoking and a 4.1%
decrease in frequent smoking among U.S. high school youth.
Likewise, regulations and taxation required by AB 390
(Ammiano) would limit young people's access to marijuana.
8)Arguments in Opposition :
a) California District Attorneys Association : "The stated
purpose of this bill is to 'regulate marijuana' and
'deprive the criminal market of revenue derived from the
cultivation, smuggling, and sale of marijuana.'
Unfortunately, the bill's own provisions make achieving
either one of those goals very difficult, if not
impossible.
"AB 390 replaces existing felony penalties for the unlawful
cultivation and sale of marijuana with infractions
punishable by a fine of up to $100. Despite the assertions
of proponents of decriminalization that a legal, regulated
market will sap demand from the illegal market, the bill
ensures that there will be no meaningful sanction for those
who will choose to continue to participate in the black
market. The marijuana growers and sellers who will operate
outside of the regulated framework will undoubtedly view
fines of $100 as a small cost of doing business.
"Additionally, we are very concerned about the bill's
language that provides that "state or local funds may not
AB 390
Page 27
be expended on, and state or local law enforcement or other
personnel may not assist in, the enforcement of any federal
or other laws that are inconsistent with this division, or
provide for greater sanctions for conduct prohibited by
this division." This provision hamstrings peace officers
and prosecutors from assisting their federal partners and
creates a dangerous precedent of non-cooperation
b) California Narcotics Officers Association : "We have
examined AB 390 and regret that we must oppose this
legislation. AB 390 would decriminalize marijuana use,
cultivation, sale and transportation for sale in
California. Further, the penalties for illegal cultivation
- activities that have increasingly been taken over by
organized criminal enterprises - are also weakened.
Moreover, even if federal law is changed, the RAND
Corporation has already demonstrated that any actual
revenues from AB 390 would be negligible. The RAND
Corporation conclusions, presented at the Informational
Hearing on October 12, effectively remove any benefit that
would be derived from decriminalization of marijuana.
"It's also worth noting that AB 390 contains no tool in place
to deal with the increase in criminal activity that will
inevitably follow decriminalization. Right now we have
serious public safety and social problems cause by abuse of
alcohol and abuse of pharmaceuticals. Abuse of alcohol and
pharmaceuticals - both lawful products - place incalculable
burdens on the criminal justice system. Given that
reality, it is pertinent to ask how on earth things will
get better by adding yet another mind altering substance -
marijuana - to the array of legal substances that interfere
with a person's five sense? And, into the bargain
marijuana is carcinogenic; assuring that its increased use
will also ratchet up cancer deaths. This fact by itself
should give policy makers pause - surely no one would
advocate a return to cigarette vending machines based on
bare assertions of increased revenues.
"Will legalization reduce the organized criminal activity
associated with marijuana distribution? The available
evidence suggests that it will not. The experience in
Amsterdam provides an important canary in the coal mine:
Since legalizing marijuana cafes in 1988, Amsterdam has
gone from having three identified crime organizations to
AB 390
Page 28
ninety-three today. That is one of the reasons the Dutch
government, in December 2008, has now embarked on a program
to close marijuana cafes: in order to drive out organized
crime.
"In California, marijuana cultivation and distribution are
largely in the hands of either Asian criminal combines, who
control most of the indoor grown activity; or the Mexican
drug cartels, who now control most illegal cultivation in
the emerald triangle. These are violent and sophisticated
organizations - the FBI estimates that over half of the 200
abductions taken place in southern California this year are
attributable to the Mexican drug cartels. To suggest that
legalization will somehow make these criminal combines go
away is not only na?ve, but contrary to the experiences of
history. Serious analyses of the repeal of Prohibition has
revealed that far from disappearing, the criminal combines
engaged in bootlegging simply became "lawful" alcoholic
beverage distributors in various states. The Kefauver
Organized Crime hearing in the 1950's showed that from the
base of alcoholic distribution businesses, organized crime
came to corrode local and state governments throughout the
United States. Is there anyone who seriously believes that
the Asian criminal combines or the Mexican drug cartels are
going to be meekly "driven out of business" by marijuana
legalization? Every experience of history suggests that it
will only strengthen their hand.
"Marijuana legalization will cause increase of other crimes,
as well. Legalization of marijuana will increase use - but
use doesn't come for free. What is being suggested is the
legalization of the sale of marijuana - not grants of
marijuana to low-income users. We in law enforcement can
expect increases in the crimes that are typically
associated with drug users attempting to finance their
habit- auto burglaries, auto theft, identity theft, and
other crimes against persons and property.
"Another crime that we can expect to see exponentially
increase is drugged driving. Even without marijuana
legalization, this is a serious problem - a 2004 study of
emergency room admissions from motor vehicle crashes
revealed that more than half of the drivers admitted to a
level-1 trauma center tested positive for drugs other than
alcohol. This study, published in the Traffic Injury
AB 390
Page 29
Review, was similar to numerous other studies.
Significantly, when breakouts were done of the drugs that
resulted in the DUI accident or arrest, the overwhelming
majority of the test samples showed marijuana in the blood
system of the arrestee.
"Legalization of marijuana will only result in an increased
use of marijuana, with a corresponding increase in the
drugged driving arrests. Unlike many countries in Western
Europe, who provide that the presence of any level of
illegal drug in a person's system is a driving violation,
California has no statutory system in place to deter
drugged driving. In fact, this committee rejected
legislation in 2008 that would have adopted a western
European per se standard. Drugged driving is a growing
problem and marijuana is a major element of drugged
driving; law enforcement has no real tools to combat
drugged driving; surely no one can seriously suggest that
legalization of marijuana will help with this problem - it
will only make it worse.
"Here's what we know: We already have serious problems
created by abuse of legal mind-altering products;
legalization of yet another mind-altering product will only
add to the current level of problems: since that product
is carcinogenic, public health problems will also increase;
legalization not only will not deter organized criminal
activity, it will probably increase it; crimes related to
drug use will increase; and the impartial RAND Corporation
(which, unlike the Board of Equalization did not rely on
NORML sources for their fiscal research) has concluded that
any fiscal benefits are illusory. For these reasons, we
must respectfully oppose AB 390; there is simply no public
benefit derived."
REGISTERED SUPPORT / OPPOSITION :
Support
A New PATH
AFL-CIO
American Civil Liberties Union
American Federation of State, County and Municipal Employees
(AFSCME)
Associated Students, University of California, Santa Barbara
AB 390
Page 30
Bill Rosendahl, Councilmember, City of Los Angeles
California Communities United Institute
California NORML
California Public Defenders Association
California Tax Reform Association
Courage Campaign
Drug Policy Alliance
Interfaith Drug Policy Initiative
Legal Services for Prisoners with Children
Los Angeles Community Action Network
Northern California Chapters of Pink Pistols
Office of the Public Defender, City and County of San Francisco
Office of the Sheriff-Administration, City and County of San
Francisco
Taxpayers for Improving Public Safety
24 private individuals
Opposition
Alcohol-Narcotic Education Foundation
Association for Los Angeles Deputy Sheriffs
California District Attorneys Association
California Fraternal Order of Police
California Narcotics Officers Association
California Peace Officers' Association
California Police Chiefs Association
California State Sheriffs' Association
Californians for Drug-Free Schools
Concerned Women for America of California
Long Beach Police Officers Association
Los Angeles County Professional Peace Officers
Los Angeles Police Protective League
Riverside Sheriffs Association
Santa Ana Police Officers Association
Sheriff, Alameda County
Sheriff, Amador County
Sheriff-Coroner, Del Norte County
Sheriff, El Dorado County
Sheriff, Fresno County
Sheriff-Coroner, Napa County
Sheriff, Sacramento County
Sheriff, San Bernardino County
Sheriff, Stanislaus County
Sheriff, Tuolumne County
Sheriff, Ventura County
AB 390
Page 31
Sheriff, Yolo County
6 private individuals
Analysis Prepared by : Kimberly Horiuchi / PUB. S. / (916)
319-3744