Episode 0002

DeadHead Cannabis Show - 0002

Jim Marty: [00:00:34] Jim Marty here and we are here to talk about some of the social impacts of legalized cannabis. I'm here with Larry Mishkin.

 

Larry Mishkin: [00:00:43] Hey Jim how are you. Very good. Wonderful. I was looking for you.

 

Jim Marty: [00:00:48] Yeah me too. So we're going to talk for a little bit here and a half an hour on the subject of the social impact of legalized marijuana when it comes to highway safety fatalities. Driving while intoxicated and roadside sobriety tests.

 

Jim Marty: [00:01:06] So those topics should take us to the next half hour. And that's the subject I've been studying because I'm from Colorado as many of you know my company is Bridge West where a CPA firm devoted to the cannabis industry and hard to believe but it's been 10 years since they started signing tax returns for cannabis clubs. And of course there's always a lot of debate about you know is legalized marijuana a good thing or is it does it add to traffic fatalities certainly the other side. I call them the prohibitionists. And you know with this place we can have common ground with people on the other side but they like to bring up traffic safety as one of the downsides of legalizing cannabis. But I've been studying that for some time in Colorado and the surprising thing is that we back in 2002. when we had no legal cannabis in Colorado there was almost a thousand million twelve hundred fatalities a year. And by 2014 that that's when we got full adult use. That number had dropped to about 600 traffic fatalities a year. And it's been consistently there ever since I think we had a lower 550 fatalities and then the last two years has been right around 600 with a smile. Yep. In 2018. But the question to ponder is why are we half a million back in 2002 and the only logical answer I can come up with and there's a couple is now we have safer cars and airbags and seatbelts are making cars safer even though there's accidents now they're not fatal accidents. Larry did you have anything you want to comment on.

 

Larry Mishkin: [00:02:47] Yeah sure. What you've done here Jim is you've really coached not just on a particular topic but you know what ultimately can be a wide series of topics that we have to really consider what is the impact on society and the individual both with medical cannabis and whether you know the onset of adult youth certainly in Colorado and a lot of western states and now on the minds of everyone in Illinois and parts east of the Mississippi at that expense and the first thing one of the very first things that people on both sides of this equation want to talk about is public safety issues and there's really no public safety issue I don't think that galvanizes the attention of the public. Like do you guys because a DUI is something where any one of us regardless of how well we may be following and observing the rules of the road if somebody out there is intoxicated to the point where he or she cannot control their actions that puts us very much at risk. And every other driver on the road. And I think that if you're going to have this conversation but I think it's really necessary to start certainly from my perspective and I'll answer your question in one minute with the idea that nobody who is part of the cannabis industry advocates intoxicated driving. I don't know of anyone who says suddenly get stoned and go get behind the wheel of your car. Go for it.

 

Jim Marty: [00:04:11] Everyone in any industry where the products can result in intoxication and a lessening of motor skills has to be behind the notion that that's not what we support. We support safe use. We support proper use and certainly discourage any type of use that would put you or anyone else at risk or in danger. Having said all of that we are a society that does in fact engage in intoxicants especially when we have Saturday night out or a football game to go to or all of those things that society has trained has told us. This is a good time to sit down and have a drink. But instead of having a drink now perhaps people are substituting that with a joint and to get to your questions your mind on it. On a double level no one I think that the decrease in traffic fatalities can absolutely be attributed to the fact that if people are now smoking marijuana and instead of drinking and then going home and driving most of the studies do demonstrate that people who have are intoxicated because of marijuana are safer drivers than people who are intoxicated due to alcohol they're not angry they're not nearly as aggressive or they're not as likely to cut somebody off in traffic or. Somebody ought to cut them off. The only thing to escalating situations where people drive faster and tend to lose control. And I think that that's a really really important aspect of what's going on.

 

Larry Mishkin: [00:05:42] You know one takeaway that cannot be denied is there has not been a spike in traffic fatalities in Washington Oregon and Colorado where we've had the least since 2014 for Colorado and Washington. Legal adult use. So you can debate whether you know hey there may be more of these people in accidents have cannabis in their system which we're going to talk about next. But you can't deny the fact that traffic accidents have not spiked in any way and they're very flat line and in some cases improving. So the takeaway is marijuana does not seem to add to traffic fatalities legal marijuana for whatever variety of reasons. I think the cops are going to lose money pretty soon on DUI is in general with Uber and Lyft. There's absolutely no reason to get a DUI in this day and age if you have a cell phone and who doesn't have a cell phone.

 

Jim Marty: [00:06:30] Well you're right you're right about that too. And again I stress the importance of if you are intoxicated from any substance and you have an option that does not require you to drive yourself you should always take that option whether it's somebody else driving your car taking an Uber or taking the train whatever you have to do I think is certainly appropriate. But you touched upon something a few minutes ago that really is going to get to the crux of this issue and that is enforceability. As a lawyer we're always very very concerned about the rights of individuals both the individuals who might be stopped by the police and the individuals who might be harmed if that person is stopped by the police.

 

Jim Marty: [00:07:13] Let me ask you a question Larry and Larry's a very prominent attorney cannabis attorney with Hoban law. Thank you. I have a lot of respect for his opinions. Is there a accurate roadside sobriety test for cannabis. I've heard both sides of that issue. Some people say yes. Some people say no. I do know that in Colorado one of the counterarguments is that more people in fender benders are testing positive for cannabis. And well certainly if you're in a fender bender there's more likelihood you are going to be tested for cannabis. If you're an illegal alien if you're in a legal state like Colorado there's I want to turn it back to you and no.

 

Larry Mishkin: [00:07:53] Is there an accurate way to test impairment for cannabis if they ask you the question Jim you really touched on part of the answer and it's the disturbing part of the answer it's kind of the lazy methods part of the answer I like to say and that is just you know let's just do a quick test let's do a blood draw let's see if we can measure measurable amount of THC in this person's bloodstream. If we can fight it then we're going to slam them with DUI whether or not they're intoxicated. So in other words what they're more concerned about is presence rather than impairment. So what we need is not just something that can detect the presence of marijuana because it's going to be there for 28 days no matter what you do. But the real question is do we have a way to test impairment. But interestingly enough a few years ago maybe five or six years ago now the Arizona Supreme Court addressed that very issue. And in the particular case that was before them an individual had been pulled over for speeding and reckless driving when he was pulled over and during his questioning he acknowledged and admitted that the day before maybe two days before it relatively close in time he had smoked a joint maybe to Joyce with some of his friends. So he was immediately booked that just for speeding but for DUI and he was booked under a Colorado excuse me and Arizona statute that makes it illegal for anyone with an illegal substance in their body to operate a motor vehicle. So that seems to suggest that you know regardless of what your levels are if you have it in your body that's not OK. The case is he was convicted at the trial court he lost on his first round of appeals but he got the Arizona Supreme Court. Listen to this scientific argument and it really makes a lot of sense. The scientific argument was that the metabolites for marijuana in our air for THC in our bloodstream started out in a hydroxide state.

 

Larry Mishkin: [00:09:52] And when they're in a hydroxide state they are psychoactive and they cause the psychoactive effects that leads to intoxication from having used marijuana. However it also shows us that within four to five hours after you start smoking marijuana or ingesting it however you're doing it that the body begins to break it down and these metabolites metabolize and they go from the hydroxide state to the car back state when they're in the car by state. They are not psychoactive and they are no longer producing any kind of intoxicant effect on the individual. And it just so happens. In this case that based on the blood results they were able to determine that at the time of the testing the metabolites were elite per boxes state. So the Arizona Supreme Court said if they're in the car back to state clearly this man was not impaired just because it was present in his system. Therefore he was not a DUI. And furthermore once the metabolites are in the car boxes state and they're not producing a psychoactive effect they're not even an illegal substance anymore. So he can't even be ticketed for operating a vehicle with an illegal substance in his body. Now the ramifications of this type of testing are profound for driving for employment for a thing. But we're focusing on driving the real question is how do you do it in a roadside setting. And to date that's a process that they're still working on right.

 

Jim Marty: [00:11:17] Yes. Now in Colorado and they'll take you to a hospital for a blood test the amount of nanograms of active THC in your body which supposedly will only detect that it's psychoactive if you smoked in the last three hours that you smoked in the last day or so. It doesn't trigger that same test as you have any thoughts on that.

 

Larry Mishkin: [00:11:37] Well you know again in the practice of law whenever we talk about these kind of tests what it really boils down to is do they have a level of accuracy that will allow a court to consider them as evidence. So you know we always hear the story about the person who goes there for the defense either do I excuse me on a speeding ticket that says the all the radar gun is defective it doesn't operate properly and there are many judges out there who will in fact require the police to put on evidence to demonstrate that the gun was working properly on the designated day and in all of this other stuff is as we try to come up with a way to do this. They're going to have to come up with something I'm familiar with what you're talking about Jim. I don't think that anybody out there agrees yet that we have a uniform way to be able to determine conclusively at the car standing by the car on the roadway much very much unlike the breathalyzer test which gives an immediate result that's universally accepted as being accurate. This is a real problem and this is going to be part of the challenge as we go forward. But you know what's interesting to me about it is that people are objecting to the fact that we don't have the product in place already whereas I would turn that on its head and say what was the incentive for industry to develop these types of tools or instruments if the underlying product wasn't permitted anyway. Now that we have rules and laws to say that that adults can use marijuana I think that provides quite an incentive for a number of companies and I wouldn't be surprised within a year to the market all of a sudden flooded with products that purport to be able to measure THC levels and the level of active ingredients in your bloodstream at that particular time.

 

Jim Marty: [00:13:20] Right. And I think there's pretty widespread agreement that at this time there really isn't an accurate roadside test and they will take you to the hospital grilled blood tests. Which brings me to my next. I now wanted to make and that is if you're pulled over and you're stopped by the police. Do you consent to the test or do you turn it down. Now in Colorado if you turn down a roadside sobriety test you automatically lose your license for either three months or a year and you get the exact amount but you definitely lose your license on the spot. Basically if you turn down a roadside sobriety test I don't know how that works in Illinois.

 

Larry Mishkin: [00:14:01] In Illinois the theory it works the same way. But the attorney the advice of attorneys will almost always give their clients is a quote the famous Matt Abell from Detroit Michigan when I say this to make sure he gets proper credit. Just say no that's all you say to the police officers I've instructed my sons and their friends a police officer comes and says you know your car smells like you've been smoking. Let me search your car. No. Let me give you a breathalyzer test. No.

 

Larry Mishkin: [00:14:28] And the idea is once you've given a consent to search the car you no longer have available to the defense of the search was no good because the stop was improper in the first place. Similarly with a DUI cut if you don't blow into the DUI machine they can make whatever assumptions they want to make and try to pay you for whatever they want to pay you. But the truth is they they do not have evidence of the fact that you were driving while intoxicated. Now this is by no means intended to serve as a primer for people on how to avoid these types of problems but by the same token drivers should always know their rights. There's no rule that compels you to allow your car to be searched. And notwithstanding was that on their face purport to require you to provide evidence from your own body there's a big body of law and any one of a number of people who will say we're not here to make the police officers jobs easier. And that doesn't mean that they're our enemy. But it does mean that simply because a police officer for some reason decides to pull this car. Over that they have a right to start sticking their nose in there demanding you show them everything you have in there and demanding that you know you start breathing into a tube or giving them some blood. In other words they have to have an objective observable basis.

 

Jim Marty: [00:15:45] We call it on the law probable cause as to why they have stopped you in the first place. Right.

 

Jim Marty: [00:15:50] Get enunciate that even if you do lose your license on the spot. That doesn't preclude you for failing to get a part when you get to court correct.

 

Larry Mishkin: [00:15:56] Absolutely correct because the burden of proof will always remain on the police officer to prove that you were in fact intoxicated at that time and and without a breathalyzer that becomes a very very difficult thing to prove. Now again having said that I am all in favor of an accurate device that can measure if somebody is overly intoxicated on marijuana because like we said before I don't want to be on a road with somebody who is so stoned they can't see out the window any more than they want to be on the road with somebody so drunk that they can't see their name properly. What is the worst case scenario.

 

Jim Marty: [00:16:30] I'd like to move on to a more pleasant subject but is this really good information something that all of us should know in dealing with this world that we live in. You know I would the takeaway is you got Uber you got Lyft you got designated drivers if you McLeod for the night you bring it. So many of my millennial friends don't even have cars. I want you up there in Chicago. You see that trend also people not having cars.

 

Larry Mishkin: [00:16:54] I think that's right and that's smart. And really you're absolutely right and what a big part of this is is just changing our own personal habits and for years everybody gets in a car and goes to where they want to go. And the idea was if I try to catch a taxi afterwards it's going to be impassable and it's going to be expensive and I will have enough cash on me. But you're right with Uber and Lyft you know being what they are especially as you know you're going to be at that you know setting somebody show it in Boulder Colorado. The last thing you want to do is come stumbling out of that stadium and figure out how you're going to drive from there back to your house up in the lovely hills there and not have to worry about somebody's quality over because they say you pull out of the parking lot so they figure you're a pretty good bet to be hired.

 

Jim Marty: [00:17:33] Yes. And that's the more pleasant subject I want to turn to as we come to the end of this episode Larry and I are very much looking forward to the getting company tour. I was very fortunate that I was able to see the Grateful Dead. By my count in my dead based book highlighting the shows I got to see the Grateful Dead with Jerry Garcia about 45 times. Ashley was 45 times before he passed and seen many many shows since then. I'm not one of these purists who say well we on Jerry's gone I'm not going to go to any more shows. I just look at them and I say you're missing so much great music this music wasn't meant to end at the end of a human life. So anyway we're very much looking forward to the dad and company tour. We're going to get to shows July 15 6 at Folsom Field which last year they sold out the Saturday night show for the first time in the dating companies runs at pretty much 60000 people. And Larry they're going to do Wrigley Field in Chicago again.

 

Larry Mishkin: [00:18:32] They are. And you know let me just say that you use. You raise an excellent point and Exhibit A I reached a pure right way when Dad and Company was forming and we'd already gone through further and said dad before that and all the other iterations that they kind of put together and they threw together Daddy company. And I have to say I was never a huge John Mayer fan probably for no other reason than I just didn't listen to a whole lot of his music and never really had a chance to fully appreciate him. And the first time that his company came through town I was like yeah you know what. I'm kind of busy. I don't think I'm going to go this time. And one of my friends said exactly what you just said Well you know it's not just about the music because lord knows I'd rather date with Jerry Garcia a hundred and ten times and I can assure you that there were very many of those shows where Garcia was not a let's just say at his best game. But sometimes it just didn't matter because being at the show and being with everyone and be part of the whole scene was so much fun. And so two years ago I saw them at Wrigley Field last year I was out at Folsom Field and I fully pulled back in now with the idea that it's just great to be there it's great to be part of the scene see old friends and even better jam and I'm sure you can relate to this. That's right. There's always places I still see faces that I've seen for 25 30 40 years at shows.

 

Larry Mishkin: [00:19:45] I couldn't say the person's name but I can tell you where they were sitting the night that they broke out a student in Madison Square Garden.

 

Jim Marty: [00:19:51] Oh yeah. We all have our great memories. Yeah. On this tour they're not going to do finally this year. They're moving into Gillette Stadium. So I think that's closer to 80000 people. Well that's amazing. So Dan and companies really. built a nice following in the three or four years Larry and they got together in Chicago in 19 2005 2015 Spring 2015 and make your 30th anniversary shows at Soldier's Field 2015. So anyway they had lots of great Grateful Dead experiences that we'll share. We're also both big fish fan. Which not every Grateful Dead makes the full transition over the fish. There's a bit of a debate a long running debate on fish versus Grateful Dead as far as you know who's playing better which jams or better. So we'll have that discussion and other time. Absolutely. Yeah. Just a few weeks until dad and co and fish kick off their summer tour. So we'll talk more about that later.

 

Larry Mishkin: [00:20:51] It's nice to be our age and still be able to look out there and say wow I got to get my summer planet. Watch the fish tour what's the date tour. Thirty years ago even 20 years ago I never would have thought that you know in my mid to late 50s I would still be planning my summer around summer tour.

 

Jim Marty: [00:21:06] Yes. And it's also nice going to grown children and your teenage children and introducing them to the scene and teaching them what the show is all about which is social responsibility but still having a lot of fun with your friends. Anyway I always tell my fans. have a good time. They'll be responsible. So that's my message for the audience today. Have a good time but be responsible for that.

 

Larry Mishkin: [00:21:30] Know I. I absolutely agree with that. I think that my job with my kids is that their grandfather my father never took me to a single country today but when I was a kid and the fact that I could take my kids to still see the dad and still see session and hay of these bands that come through. It's just it's a wonderful. It becomes a generational thing. And you know it gives me a little bit of hope that we weren't also crazy you know when we were out running around trying to catch as many dead shows as we did.

 

Jim Marty: [00:21:59] Okay. So that's over and out for this segment of cannabis talk with Jim and Larry and we'll talk to you again soon. Next subject will be we have so many subjects to discuss but I think you know the legal status and what they're doing to prevent products crossing state lines and a diversion. That's the word I was looking for.

 

Jim Marty: [00:22:20] We'll talk some about a diversion on the next story the realities of what happens when all of a sudden you know you have a legal product and you know these things that we never had to really think about or worry about because the whole underlying subject matter was illegal to begin with. But one thing trumps you know bombs out like this. You're absolutely right. There's a number of other factors that come into play that people have to be aware of.

 

Jim Marty: [00:22:40] Yes I think we have many many things to talk about. We haven't even touched on the whole other side of cannabis which has hampered hemp products. Right. And what's going to happen with the 2019 hemp crop now that. the 2018 farm bill is in place.

 

Jim Marty: [00:22:55] It would. I would say you're right there's not a ton of those topics and you know we haven't even touched the surface. You know in discussing the merits and the pros and cons of fishers our annual Halloween beautiful plastic. I'm just throwing that out there.

 

Jim Marty: [00:23:08] Yes. And the great fun we have at Dick's every Labor Day weekend three.

 

Larry Mishkin: [00:23:13] No doubt. It's a good one as well. But I'm excited because we look forward to over and out. Bye guys. Thank you.

 

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Dan Humiston