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Opponents of Measure 3 Need to Get Their Facts Straight

In recent weeks, two prominent North Dakota citizens - Robert Wefald, former North Dakota attorney general and district court judge, and Dan Donlin, former Bismarck Police Chief - expressed opposition to Measure 3, which asks North Dakota voters whether to legalize recreational marijuana.

Given their background and experience, the opinions of these two men likely carry weight with the average voter. Unfortunately, neither is accurately portraying the legal implications of Measure 3.

The measure is fairly simple. The major substantive provisions remove marijuana from the list of "Schedule I" controlled substances and restrict possession and sale to those over the age of twenty-one. Measure 3 also includes a so-called "supremacy clause" providing that any existing statutory language that conflicts with the new law is nullified and repealed.

Opponents of Measure 3 make sweeping claims about the consequences of the supremacy clause. According to Donlin, "any current law that covers marijuana now would be repealed." That is simply not the case.

The supremacy clause in Measure 3 is a common legislative provision intended to avoid conflicts with existing laws. Read in isolation, the language appears to be a broad repeal of all existing marijuana laws. But the supremacy clause must be read together with existing statutes to determine if a conflict actually exists. In most cases, it doesnt, meaning both laws stand.

For example, Wefald claims "driving while impaired by marijuana would no longer be illegal." Measure 3 removes marijuana from the list of "controlled substances." The statute that prohibits driving while impaired includes any drug or substance that renders a driver incapable of safely driving, regardless of whether the drug or substance is listed as a "controlled substance" in the other statute. It also expressly states that being legally entitled to use the drug or substance is not a defense. Even if marijuana becomes legal, it will still be illegal to drive under the influence of marijuana because the impaired driving statute is not limited to controlled substances and being legally entitled to use marijuana is not a defense to an impaired driving charge.

Wefald also argues that if Measure 3 passes "marijuana could be smoked...anywhere, including in places where smoking cigarettes is not allowed." The statute prohibiting smoking in public places and places of employment applies to any "heated tobacco or plant product intended for inhalation, in any manner or in any form" including electronic or vaping devices. Whether tobacco or any plant product is listed in the other statute as a "controlled substance" is completely irrelevant to the indoor smoking ban, and Measure 3 will not change that. The indoor smoking prohibition will continue to apply to marijuana if Measure 3 passes because the indoor smoking prohibition, like the impaired driving statute, is not limited to controlled substances.

Wefald and Donlin both assert there would be no rules or regulations on the growing or selling of marijuana. Growing a few plants in your garden and sharing the harvest with friends would not be regulated, just like growing tomatoes or cucumbers. But growing on a larger scale and engaging in retail sales would require permits and licenses and compliance with zoning codes and other laws, just like any business. Measure 3 would not place marijuana in some special category immune from the normal laws and regulations that apply to all business ventures.

Dont believe everything you read and hear about Measure 3, even from a former attorney general or city police chief. Many of the arguments being advanced by those opposed to legalized marijuana are simplistic and inaccurate.

The opponents of Measure 3 seem passionate in their position. But passion is no substitute for the truth.

Tory Jackson is an attorney in Bismarck.

This is a paid endorsement letter to the editor.