Posted: October 9th, 2010 by Militant Libertarian
This series on California’s Regulate, Control and Tax Cannabis Act of 2010 (known as Proposition 19) is examining the issues surrounding the ballot measure as well as the legislation itself. In the original article opening this series, it was established thatthis will be a balanced look at how the new law, if passed, may or may not affect marijuana’s legality in California.
In this segment, we are examining some of the claims made by those opposing the proposition. To see the claims made by those supporting it, go to this link.
The website for the official No on 19 (NoOnProposition19.com) makes three misleading or false claims about what Proposition 19 will do that are not supported by the legislation, as written. These claims are:
1. Employers will not be able to have a marijuana drug screen for new job applicants,
2. Employers will have to allow marijuana smoking on the job,
3. California employers and businesses will no longer be eligible for federal grants larger than $100,000.
As with the Yes on 19 website, the No on 19 website also does not link directly to the text of Proposition 19 as enrolled in the California voter’s guide.1
Employers Cannot Drug Screen Job Applicants?
This claim is based on section 11304(c) and is made because of the phrase “Provided, however, that the existing right of an employer to address consumption that actually impairs job performance by an employee shall not be affected.”
That phrase is badly-worded and could give the wrong impression, but regardless, the No on 19 claim is false for two reasons. First, any employer who is complying with the Federal Drug Free Workplace rules (as per Title 41, Chapter 10 of the U.S. Code2) would have the clear argument that hiring someone who tested positive on a drug screen test would clearly impair their ability to conduct business and therefore, an employee unable to comply with USC 41.10 would be impaired in their job performance.
Secondly, the problem here is mainly to do with the drug screens themselves, not the fact that marijuana would be legalized. Cannabis is one of the few drugs that, when tested via the common urine tests available, will show up as being in the person’s system long after it’s ceased to affect the person’s mental function. These tests also give positive results even if the marijuana ingested was not psychoactive (as with some liquified THC options used by medical marijuana patients). This compares to alcohol, which can easily be tested for and for which positive results nearly always imply cognitive impairment.
Employers Must Allow Marijuana Smoking On the Job?
This claim is made, again, due to section 11304(c) in The Regulate, Control and Tax Cannabis Act of 2010 and its reasoning is closely related to that above. This section of the Act is, again, badly-worded and confusing to many.
For employers complying with the Federal Drug-Free Workplace rules, this is not a concern for those reasons given above. For employers who do not comply with the Drug-Free Workplace rules, it is likely a concern as they would not, unless they can prove impairment, be allowed to stop cannabis use with the exception of the current codes for smoking in the workplace.
Since most jobs in safety-related fields such as police work, handling hazardous materials, or commercial driving require that the employees involved in the work be compliant with the Drug-Free Workplace rules, this is not an issue for them. Commercial drivers, for instance, are subject to both state-level and federal level Department of Transportation rules, including being drug free.
For others, however, this is a legitimate concern if their business could be impaired by employees who are not sober while on the job. In that regard, No on 19 has a point and, again, it’s due to the bad wording of this section of the proposition.
California Employers No Longer Eligible for Federal Grants?
Once again, this is referring to section 11304(c) of Proposition 19 and it’s wording. Like the other two complaints, however, it is trumped by the U.S.C. itself. Employers who apply for or are recipients of federal grants are required to abide by the Drug-Free Workplace rules,3 employees who are not able to comply with those rules would be impaired in their jobs and thus the employer would not be required to retain them.
Driving Under the Influence of Marijuana Not Defined in Prop 19?
Another argument listed on the No On 19 site, though not on our list of misleading statements they’ve made, regards how marijuana DUI is undefined in the proposition. The statement, on its face, is true, so it is not an outright lie and thus didn’t make our list. It is, however, a bit misleading to those who have not looked into California law.
While the Regulate, Control and Tax Cannabis Act of 2010 does not define what it is to be impaired while driving under the influence of marijuana, neither does the California Vehicle Code. Section 11301(c)(3) of the proposition states clearly that no changes to the current Vehicle Code is made by the new law, should it pass. It reads: “Consumption by the operator of any vehicle, boat, or aircraft while it is being operated, or that impairs the operator.” That under the headline “nothing in this act shall permit.”
The relevant DUI section of the California Vehicle Code is Section 23152-23329.1.4 Under this section of the code, no definition of what “impairment” is while under the influence of any drug other than alcohol is given.
So, while the No on 19 people are correct in saying that Proposition 19 does not define what driving under the influence of marijuana means, neither does the California code under which it is penalized. This appears to be a problem for the California legislature or the appropriate regulators, not Proposition 19.
In the next segment of this series analyzing Proposition 19, we will look at the proposition itself and how it will likely be interpreted by law enforcement and the courts if it becomes law.
1 – Proposition 19: The Regulate, Control and Tax Cannabis Act of 2010 California Voter’s Guide, CA.gov
2 – U.S. Code, Title 41, Chapter 10, Cornell University Law School, Law.Cornell.edu
3 – Drug-free workplace requirements for Federal grant recipients, USC 41.10.702, Cornell University Law School, Law.Cornell.edu