Attorney Says Plain Reading of Recreational Marijuana Measure Means It Legalizes Driving While Stoned

Mark Friese is a defense attorney with the Vogel Law Firm in Fargo. He supports decriminalizing marijuana for recreational use. He also says he’s “more than likely” to vote for the ballot measure to make recreational marijuana legal in North Dakota in November (it will be Measure 3 on the ballot).

But when two law enforcement groups recently passed a resolution opposing the measure – the North Dakota Peace Officers Association, as wells the Sheriffs and Deputies Association, are arguing that the measure’s decriminalization is so broad it will make things such as driving while stoned legal – Friese says they have a point.

He was on my radio show today to talk about it (listen below) and points to two sections of the measure which are problematic (full text here):

The first problem has to do with the part which says no person over the age of 21 “shall be prosecuted in any court for any non-violent marijuana related activity” which the exception of selling pot to someone under the age of 21.

Friese says driving while stoned is a non-violent marijuana related activity and, a plain reading of the measure indicates that it would “abrogate existing laws on impaired driving.” He cautioned that DUI cases involving marijuana are a “very small” percentage in North Dakota, but also pointed out that the DUI isn’t the only concern. He pointed out that things like smoking marijuana in front of children, or having marijuana and related paraphernalia around children, would also fall under the broad language.

“I’m interpreting it exactly as it’s written. They wrote it too broadly,” Friese said in response.

Legalize ND, the organization behind the marijuana ballot measure, sent out a press release today (PDF) charging that critics like Frieses are using an overly broad interpretation of the language.

“I’m interpreting it exactly as it’s written. They wrote it too broadly,” Friese said in response.

The press release quotes some attorneys – none of whom are from North Dakota, as it happens – one of whom argues that the courts will find that it was not the intent of Legalize ND to legalize any sort of impaired driving. “I would say, looking at statutory construction rules, where the language might be ambiguous, you look at the intent and avoid invalidating another statute if possible. So Legalize ND’s statement on the record that it is not intended to include driving under the influence, which can happen with any drug, legal or illegal, is not contemplated by your language should be determinative by a judge,” Alicia Dearn, the CEO of Bellatrix Law, is quoted as saying.

But Friese says that’s not how it works, pointing out that there has been no legislative process at all around this measure and thus there’s no official documentation of intent the court can work from.

Another attorney in the Legalize ND release argues that other North Dakota statutes won’t be impacted by this measure. ” A crime like driving under the influence is not impacted based on the legality or illegality of an intoxicating substance, therefore the initiative does not impact drug driving laws. It neither directly amends the drug driving statue, nor does it repeal it by implication or application of the supremacy provision of the Marijuana initiative,” California attorney Jordan Parker says.

Friese points to the section of the measure titled “statement of supremacy” which nullifies any other portion of state law which conflicts with this one.

Still, despite all these problems, Friese says he’s more than likely to vote for the measure. He just wants voters to understand that the Legislature will probably have to fix a lot of these problems before this policy can be workable.

Here’s the full audio of today’s show:

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Rob Port is the editor of SayAnythingBlog.com, a columnist for the Forum News Service, and host of the Plain Talk Podcast which you can subscribe to by clicking here.

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