Amid a patchwork landscape of laws and enforcement, California legislators eyed a new bill that would ban getting high behind the wheel.

Joined by Assemblyman Evan Low, D-Campbell, state Sen. Jerry Hill, D-San Mateo, introduced Senate Bill 65 to address an obvious gray area left untouched by Proposition 64, the marijuana-legalizing initiative passed by voters last November. 

“It’s currently illegal to have an ‘open container’ of weed in a vehicle. It’s also illegal to drive while high. But there’s a technical loophole in these existing laws, because they don’t specify cannabis usage while driving,” the San Jose Mercury News explained. “Nor do they define whether a pipe, joint or edible are considered ‘open containers.’ That’s akin to saying you can’t have an open can of Bud in the car, and you certainly can’t be drunk, but it’s OK to take sips while behind the wheel.”

Questions of overreach

Already, however, critics and analysts have raised pointed questions about how the putative law would be enforced. Instead of merely prohibiting THC use on the road, “Senate Bill 65 would also encompass a ban on CBD consumption while driving, an ingredient in marijuana that does not contain THC (the chemical that gets users high),” as the San Francisco Examiner noted. “CBD is often used by those suffering from chronic pain or cancer to alleviate suffering and anxiety.”

“Another complication of Senate Bill 65 is the potential testing of how high a driver is. If a driver is caught driving erratically after smoking weed, any testing that would take place would not offer as clear results as an alcohol breathalyzer. THC does not show up immediately in the blood stream after consumption, and it can stay in the body’s system for up to a week after smoking, making a quick assessment of one’s recent drug intake complicated. In addition, no threshold has been established on the amount of THC one can have in their system while driving.”

Some Californians have already faced rude awakenings at the borders of California’s laws, some of which haven’t budged. National Park Service rangers, for instance, have continued “to bust people caught with marijuana in Yosemite, Redwood, Death Valley and other federal lands across the state,” the Sacramento Bee reported. “The federal government says it’s not backing off on citing people who are caught with marijuana in California’s national parks, monuments, recreational areas and other federal lands regardless of the landslide vote that legalized recreational marijuana in the state.”

Enforcement pushback

However, this optimism may be premature. Polls show younger voters, including Republicans, are strongly predisposed to support proposals such as the Nov. 8 ballot measure. But voters who haven’t made up their minds may be dismayed upon learning what’s happened in Colorado since voters there approved pot legalization in 2012.

The Colorado experience seems likely to have eventually made its way into the California debate, but the recent chance seating of Assembly Speaker Kevin de León next to Colorado Gov. John Hickenlooper on a cross-country flight accelerated its entry. De León, a Los Angeles Democrat with statewide ambitions, told the Los Angeles Times last week that the “comprehensive” briefing he had gotten on what happened in Colorado left him so concerned he was unsure how he would vote on Proposition 64.

Colorado report depicts wide range of social ills

A 166-page report assessing how the Rocky Mountain State had been affected by state marijuana policies was released in September 2015. It found sharp increases in driving under the influence of drugs; increases in traffic deaths related to stoned drivers; a spike in marijuana users aged 12 to 17; a sharp increase in marijuana-related emergency room visits; and a huge surge in the number of children under 5 who had been exposed to marijuana in their homes. The document also found evidence that Colorado had become a marijuana exporter, with volume growers taking their crop to other states.

Plainly, what’s happened in Colorado offers rich fodder for anti-Proposition 64 ballot arguments. There is now a legal fight in the works over opponents’ proposed language.

The Colorado report is also a great source of TV attack ads — if the No on Proposition 64 has deep enough pockets to launch such a campaign.

Fearful that California’s legalization of marijuana would set a precedent for the nation, a group leery of Proposition 64 has emerged as its leading critic. Known as the Smart Approaches to Marijuana, it was founded in 2013 by former Rhode Island Rep. Patrick Kennedy; David Frum, former speech writer for President George W. Bush; and Kevin Sabet, a UC Berkeley alumnus who was the leading opponent of drug legalization or normalization within the Obama administration.

In a recent Los Angeles Times article, Sabet expressed confidence that the anti-Proposition 64 campaign will be well-funded.

But as is often the case with ballot measures in California, one side or the other has a billionaire paying most of the bills. The key advocate behind Proposition 64 is Silicon Valley billionaire Sean Parker, who has already given $9.2 million to qualify the measure and to set up a campaign organization on its behalf. At this point, the No on 64 side has no similar figure.

Battles over credibility loom

What’s more, Sabet’s emergence as a face of the anti-64 campaign could actually galvanize Prop. 64’s supporters.  In some progressive circles, he’s seen as an enemy of balanced, honest debate about drug use in modern America. A 2013 Rolling Stone article depicted him as the “biggest enemy” of pot legalization — a pretend reformer who is a “prohibitionist” at heart.

Dr. Sunil Kumar Aggarwal, a New York City physician who has written about marijuana’s potential as a pain reliever in the Clinical Journal of Pain, has charged Sabet with exaggerating marijuana’s addictive qualities and cherry-picking information to mislead journalists on many fronts, such as the alleged correlation between marijuana use and lower IQs. 

Sabet says that legalization supporters have their own credibility gaps, starting with a refusal to acknowledge how detrimental marijuana use is for teenagers and a refusal to admit that marijuana today is far more powerful than it was a generation ago.

California’s Proposition 64 shares its number with the Colorado pot measure approved in 2012.