Marijuana Questions

Q: Does Oregon’s new law (Measure 91) allow for me to smoke marijuana and drive a car?

A: Measure 91 does not change current DUI law. Driving under the influence of marijuana is a DUI, so if you are negatively affected, either mentally or physically, by the use of marijuana, and driving a vehicle, you can be arrested for a marijuana-based DUI.

Q: How much marijuana can I smoke and still drive?

A: This is a great question, but there is not an easy or straightforward answer. The short version is that each person will have their own point where they cannot legally drive after using marijuana, but Oregon hasn’t adopted a specific scientific test of blood or urine to establish an exact ‘line in the sand’ for marijuana use like the .08 BAC standard that exists for alcohol-based DUI charges.

As with alcohol, it is not illegal to have a drink or use marijuana and drive a car, unless that drink or marijuana use makes you impaired. The legal standard of ‘impairment’ for a DUI, whether alcohol or marijuana, is whether a person is adversely affected to either a noticeable or perceptible degree by the use of the intoxicant. This means you can be arrested for a marijuana-based DUII if an officer believes you are not as sharp, mentally or physically, as you would have been if you had not used marijuana.

Q: How long should I wait after I have smoked marijuana before I can drive legally?

A: This is another great question without an exact answer. Every person is different and there are many varieties and strengths of marijuana. There is no precise timing involved other than, under the law, you should not drive if you are “adversely affected to a noticeable or perceptible degree.” A good rule of thumb is if you have smoked marijuana, you should not be making a decision for yourself or others about your ability to safely drive. If there is a question as to whether you should or should not drive, the safer option is always not to drive. While it may seem extreme, police scientists have testified in Oregon that the impairing effects of marijuana can last up to 24 hours after consuming.

Q: What tests can I do to make sure that I am ok to drive?

A: The best practice in determining whether you are ok to drive is to simply avoid driving if you have consumed marijuana in the last 24 hours. There is not a single test that gives you a yes or no answer. When police investigate a possible DUII for controlled substances they administer multiple tests to create a bigger picture for them to work with. This can include checking your pulse rate, blood pressure, and body temperature, as well as testing your balance and ability to follow instructions. Police often test your eyes to see if the pupils are reacting normally in different lighting conditions.

Some officers will testify that a person under the influence of marijuana will have a difficult time in crossing their eyes (to check this, an officer will have you follow his finger with your eyes as he moves it in a circular pattern for a brief time and then bring his finger to the bridge of your nose – he is looking to see if your eyes are able to cross at that point), however, this test is far from perfect.

Q: Are there differences in effects from marijuana when it is eaten rather than smoked?

A: Yes, both in the euphoric/medicating effects as well as how the body stores the metabolites of marijuana that can be detected for investigatory purposes.

Q: Can I smoke marijuana in a car if I am not the driver?

A: Probably not. Driving a car on a public road is considered under the law “in public” and Measure 91 does not allow for marijuana consumption in public.

Q: Can I smoke marijuana on a boat?

A: No. Waterways, lakes, rivers, ponds, the ocean, are likely to be considered a public place and consuming marijuana in a public place is a violation of law.

Q: How do officers first determine that I am under the influence of marijuana?

A: There are many variables associated with determining that you are under the influence of marijuana and every case is different. Odor of marijuana is a common factor that police encounter at the beginning of their interactions. Odor is tricky because sometimes you can become so used to the odor that you no longer smell it and don’t even realize that you smell like marijuana. There are also physical signs in your eyes (typically a reddening of the eye towards the underneath portion of the eyelid) that can be a signal that you are under the influence of marijuana. Your demeanor can also be a factor. In court, officers often describe the effects of marijuana as an outwardly slowing of movements and coordination while the brain activity and thought patterns are sped up. I have heard officers testify that the effects of marijuana are observed as a quiet demeanor on the outside with a party going on inside.

Q: How do officers investigate DUII if it does not involve alcohol?

A: There is a protocol law enforcement uses to evaluate whether a person is under the influence of substances that are not alcohol. DUII law has always considered elicit substances as one form of a possible DUII. Typically, there the protocol has 12 steps that police follow in investigating a non-alcohol DUII. The police examine an assortment of psychological, physical, medical, balance and memory tests during this protocol, referred to as a drug recognition evaluation, or DRE.

Q: Is there a difference between a urine test and a blood test for purposes of marijuana detection?

A: Typically in Oregon DUII investigations, urine tests are used more frequently than blood tests for the detection of controlled substances. Urine tests show past use of a substance, but at this time urine tests do not specify if a person is currently under the influence of that substance, when a substance was taken, how much of a substance was taken, or even whether the effects of that substance are currently active. Blood tests, on the other hand, can, determine whether a substance is active in the person and how much of that substance is actively affecting a person. At this time blood tests are used much less than urine tests in Oregon

Q: Do I have to be “stoned” to be guilty of DUII by marijuana?

A: No, for several decades Oregon law has directed that “under the influence” does not require proof of being “drunk” or “stoned”. Rather, Oregon law requires that no one drive a vehicle if they are “adversely affected to a noticeable or perceptible degree by the consumption of certain medicines, controlled substances and/or alcohol”. “Adversely affected” does not necessarily require that a person is “drunk” or “stoned” just that they are affected in a way that is detectable from another person’s perspective.

Q: Is there a test for detecting levels of marijuana like a breath test in an alcohol based DUII?

A: Not currently. Other states have decided to use a measurement from the blood as a default for the definition of “under the influence”. For example, there are a few states that have determined that 5 nanograms of a particular marijuana metabolite is the line, just like a 0.08% BAC acts as a default for deciding that a person is under the influence of alcohol, but Oregon has not adopted this.

Q: Can I travel in a car with marijuana if I’m not using it once it becomes legal recreationally?

A: Since the inside of a traveling car could be considered to be in a public place, Measure 91 allows for the possession of up to one ounce of marijuana in public places. It is still illegal to consume marijuana in a public place though.

Q: Do I have to consent to a search of my car if a police officer asks to search it?

A: You do not have to consent to a search of anything, including yourself or your belongings. However, you may not actively resist or put effort to preventing a search.

Q: When did recreational Marijuana become legal?

A: Measure 91 went into effect on July 1, 2015, allowing for the personal possession and use of recreational marijuana.

Q: Is there an age limit for legal marijuana?

A: Measure 91 allows for people that are 21 or older to participate in recreational marijuana.

Q: As a parent, may I allow my under 21 year old child to consume marijuana in private or in our home?

A: No.

Q: How much marijuana can I possess legally under Measure 91?

A: Measure 91 will allow for the possession of up to 1 ounce in a public place and up to 8 ounces of marijuana in private and each residence can have up to 4 plants as long as they are not visible to the public.

Q: What does “in a public place” mean?

A: The Oregon legislature has defined “public place” as any location that the general public has access and includes, but is not limited to, hallways, lobbies and other parts of apartment houses and hotels not constituting rooms or apartments designed for actual residence, and highways, streets, schools, places of amusement, parks, playgrounds and premises used in connection with public passenger transportation.

Q: Can I consume marijuana in a public place?

A: No you cannot. Even medical marijuana may not be consumed in a public place

Q: Will measure 91 affect my current medical marijuana card status?

A: Measure 91 does not alter the rules of the medical marijuana program.

Q: Where and when can I purchase marijuana once it is legal recreationally?

A: The retail sale of marijuana will not be legalized and regulated by the OLCC until 2016. OLCC is required to begin accepting applications to license retailers by January 4, 2016.

Q: How do I determine how much marijuana weighs when it is in a food product or some other form than the flower?

A: You have to weigh the whole end product, not just the marijuana. Measure 91 allows for the making of marijuana product in one’s home as long as the solid product itself does not weigh more than 16 ounces.

Q: How much of a liquid marijuana product may I lawfully possess under the recreational marijuana law?

A: Measure 91 allows of the making of homemade liquid marijuana products, such as spaghetti sauce, as long as the total amount of liquid marijuana product in that household is 72 ounces or less.

Q: Can the possession of recreational marijuana affect my concealed handgun license?

A: Yes, under federal law a person may not possess a firearm in conjunction with possession an illicit controlled substance. Therefore, you could lose your privilege of a concealed handgun license if it can be established that you possessed a firearm and marijuana at the same time.

Q: Can I be charged with a crime even if I am in possession of amounts of marijuana that measure 91 allows?

A: Under measure 91 it is still unlawful to sell marijuana unless properly licensed. A person can be accused of unlawfully possessing, selling or manufacturing marijuana even if the person only possesses less than the allowable amount if the circumstances can establish that an illegal sale occurred or a person is involved that is under the age of 21.

Q: Can I sell marijuana once it becomes legal recreationally?

A: Not without a license. Measure 91 has directed OLCC to regulate and tax the recreational sales of marijuana. Measure 91 directs the OLCC to accept applications for licenses to sell, produce, process and wholesale marijuana by January 4 of 2016. Only those properly licensed may lawfully sell marijuana.

Q: Can I travel back and forth between Washington and Oregon with marijuana once measure 91 goes into effect?

A: No. Even though it appears that both states have legal recreational marijuana, the transfer between states is not authorized under Measure 91 and is illegal under federal law.

Q: How many plants will I be able to legally grow under Measure 91?

A: Each household may legally grow 4 marijuana plants.

Q: What if I grow 4 plants lawfully but they produce more than 8 ounces of MJ?

A: The law is not as forgiving as some may hope. Measure 91 allows for a person to possess eight ounces of the flower form of marijuana. Measure 91 allows for a residence to grow up to 4 plants. Measure 91 sets both of these numbers as limits. That means that you may not exceed either, so if you produce more than 8 ounces of marijuana from 4 plants you would violate the rule by going over the 8 ounce measurement.

Q: Can Child Protective Services take action even if I am under the limits allowed by measure 91?

A: Measure 91 does not change any rules for Child Protective Services. Child Protective Services may investigate any issue that involves the possible endangerment of a minor, which can even include a child’s access to marijuana.

Q: Can my landlord prevent me from growing marijuana?

A: Measure 91 makes no changes to current landlord tenant law. Q: Can my boss fire me if I consume marijuana on my private time?

A: Measure 91 makes no change to current employment law

Q: Can I possess marijuana in a national forest or park?

A: No, marijuana is not legal under federal law. Federal land is governed by federal law.

Q: Can I possess recreational marijuana on Tribal land?

A: Tribal lands are governed by the laws of the sovereign nation that encompasses that land. Measure 91 has no effect upon tribal laws.

Q: Can I consume marijuana in a forest or park?

A: No. The definition of a “public place” in Measure 91 specifically identifies parks or forests as a public place. Consuming marijuana in a public place is not allowed under Measure 91.

Q: Does having a medical marijuana card prevent my boss from firing me if I test positive for a urine test or blood test from my employer?

A: No. A medical marijuana card does not necessarily prevent an employer from enforcing their own rules regarding the use of controlled substances. The Oregon Medical Marijuana Act does not affect current employment law and the Oregon Medical Marijuana Act does not provide protections such as those under the Americans with Disability Act.

Q: When will OLCC accept applications for business licenses in the marijuana industry?

A: Measure 91 requires the OLCC to begin to accept applications for licenses on January 4, 2016.

Q: How much homegrown marijuana can I give to someone else who is also 21 years of age or older?

A: One ounce at the most. Measure 91 allows for the delivery of not more than one ounce of homegrown marijuana at a given time, and both people involved must be above the age of 21.

Q: How much homemade solid marijuana product may I give to someone else?

A: Measure 91 allows for the delivery of not more than 16 ounces of homemade marijuana products in solid form as a given time, and both parties involved must be at least 21 years of age.

Q: How much homemade liquid marijuana product may I give to someone else?

A: Measure 91 allows for the delivery of not more than 72 ounces of homemade marijuana product in liquid form, and both parties must be above the age of 21.

Q: Can I smoke marijuana in my backyard if the smoke goes over my fence?

A: It is difficult to say how this issue will be treated under Measure 91. Measure 91 allows for the consumption of marijuana, as long as the consumption is not in public. It is difficult to anticipate if the use of the term “in public” only means in public view or whether odor could be considered to violate the “in public” rule. Some jurisdictions are considering drafting their own municipal codes to specifically address this issue. A good starting point might be to avoid any possibility of breaking the rule by not allowing smoke or odor to escape the private confines of a home.

Q: Can I smoke marijuana at an outdoor concert?

A: Legally, no, you can’t smoke at an outdoor concert. It is likely that a concert venue would be considered a public place. Measure 91 does not allow for consuming marijuana in public places

Q: Can I grow marijuana in my front yard?

A: No, you can’t grow marijuana in your front yard, - marijuana may not be grown or stored in a place that can be seen from a public place.

Q: Can I make my own extracts of marijuana?

A: Measure 91 only allows for people above the age of 21 to possess extracts that were produced from a licensed marijuana retailer. So extracts will be legal once the retail system is in place.

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