Hawaii Cannabis logo

By Keith Stroup, NORML Legal Counsel

Two new studies helpful to those who are advocating for marijuana legalization came out over the past few weeks. One quantifies the enormous potential tax revenue generated from a legal marijuana system, which should encourage additional states to reconsider their marijuana policies; the second confirms that per se DUID laws are scientifically baseless, and concludes that no one should face conviction of a DUID charge without a showing of impairment.

Tax Revenue Left on the Table

The Tax Foundation, a Washington, DC-based think-tank, released a series of reports (on 4/20, no less) quantifying the potential state and federal tax revenue from a nationally legal marijuana market. Their conclusion: $28 billion annually!

That’s right. The states and the federal government are losing that much tax revenue annually as a result of their reticence to embrace a legal marijuana market. The states would raise an estimated $20.5 billion through the collection of excise, sales, income and payroll taxes. The federal government is losing another $7.5 billion from income, payroll, and excise taxes.

Tax experts reached figures from an estimate that a nationally legal marijuana market would generate $45 billion in annual sales. This is obviously relevant information for any elected officials who might be considering supporting marijuana legalization. We know from the experience with legal gambling in the US that initially only one state (Nevada) was willing to raise tax revenue by legalizing and regulating gambling, and then a second (New Jersey) elected to jump on board the gaming bandwagon. The other states knew this could be a helpful source of tax revenue, but so long as the issue was considered too controversial (or in some states, considered immoral conduct), they were unwilling to take advantage of the potential revenue stream.

But today, some form of gambling is available in almost every state. The aura of impropriety has gradually given way to the reality that people gamble regardless of whether it is legal and regulated or remains illegal. The primary difference is that with illegal gambling the government realizes no tax revenue.

That scenario is one that is almost certain to be repeated in state after state over the coming years, as marijuana smoking is increasingly seen as no big deal, and the enormous tax revenues are more and more crucial for states struggling to balance their budgets without cutting essential services. With every new state that adopts full legalization, there are a larger number of neighboring states that will be forced to reconsider their marijuana policies with a view towards keeping that tax revenue in their own states.

Fair DUID Policies

The second piece of good news came from the respected American Automobile Association (AAA) Foundation for Traffic Safety, a somewhat unexpected source. Following a thorough review of the scientific evidence, AAA concluded that motorists are being convicted of driving under the influence of marijuana based on arbitrary state standards – called “per se” laws — that have no connection to whether the driver was actually impaired.

Under these laws, if the driver is found to have a certain level of THC in their system, they are convicted of a DUID offense, without any showing of impairment.

Five states (Montana, Nevada, Ohio, Pennsylvania, and Washington) presently impose per se limits for the detection of specific amounts of THC in blood, while eleven states (Arizona, Delaware, Georgia, Illinois, Indiana, Iowa, Michigan, Oklahoma, Rhode Island, Utah, and Wisconsin) impose zero tolerant per se standards — meaning any THC in the system is sufficient for a conviction. In Colorado the presence of more than 5 nanograms per millimeter of THC in the blood gives rise to a permissible inference that the driver was impaired.

The problem with these laws is that residual levels of THC may be present in the blood for extended periods of time (days or even weeks) after the last use of marijuana, although the impairment from smoking generally lasts no more than 90-minutes.

The AAA finding is similar to that of the US National Highway Safety Administration that has previously found “It is difficult to establish a relationship between a person’s THC blood or plasma concentration and performance impairing effects … It is inadvisable to try and predict effects based on blood THC concentrations alone.”

This study confirms the position that NORML has taken for years, arguing for impairment testing, rather than per se THC standards. As NORML Deputy Director Paul Armentano has written, “[R]ecently adopted statewide per se limits and zero tolerant per se thresholds in the United States criminally prohibiting the operation of a motor vehicle by persons with the trace presence of cannabinoids or cannabinoid metabolites in their blood or urine are not based upon scientific evidence or consensus … [T]he enforcement of these strict liability standards risks inappropriately convicting unimpaired subjects of traffic safety violations, including those persons who are consuming cannabis legally in accordance with other state statutes.”

Information is Power

Information is power, and both of these new reports provide us with tools to better shape the debate over the advantages of marijuana legalization, and to assure that new legalization laws do not unfairly treat responsible marijuana smokers as dangerous drivers. Now if we can get our elected officials to focus on the facts, we can continue to refine the image of fair marijuana legalization.


This column was first published on Marijuana.com.

To continue reading this story, visit our friend’s website (opens in a new window):: Two New Studies That Help Estimate Tax Revenue and Getting It Right with DUID