Op-Ed: Prop. 64 Is No Free-for-All

The passage of Proposition 64 in the fall election may seem like the end of prohibition, but it doesn’t mean anything goes.

Do you know that it is still illegal to smoke marijuana in public, or any place where tobacco is prohibited? Growing pot at home? You are limited to six plants, and you’ll probably need to lock them up so that children can’t get to them. In many jurisdictions, you need to grow indoors. If you’re a renter, you’ll need your landlord’s permission to grow (or smoke!) on their property.

Planning on opening up a recreational pot club? State licensing is not set to begin until 2018. Many cities, including Campbell, Cupertino and San Jose, have prohibited recreational marijuana businesses temporarily or permanently.

And, of course, it is still illegal to smoke or possess marijuana if you are under 21—just as it is illegal to buy cigarettes or alcohol.

My request is simple: please pay close attention to the details of Proposition 64 and how the state and local municipalities implement them. Knowing these details could be the difference between having your business closed, or even being charged with a crime.

My critique is more complex. There are three major areas where the state must bolster Proposition 64: protecting people from dangerous drivers who are high, keeping young people from access and harm, and protecting the environment and our communities from fires and other impacts.

Driving While High

Colorado and Washington have seen marijuana-related traffic deaths nearly double since legalization. Drivers need to be held accountable when they drive under the influence of marijuana. Just like drivers know it’s a crime to operate a motor vehicle with a blood alcohol level of .08 percent or higher, drivers need to know it’s a crime to operate a vehicle with a level of THC at or above a defined limit. Without a numerical standard to evaluate marijuana DUI impairment, California lacks the necessary tools to effectively investigate and prosecute these crimes.

One way we are addressing this issue is a bill sponsored by State Sen. Jerry Hill and Assemblyman Evan Low, which would close a loophole for driving while smoking pot. There is no difference between a joint and a can of beer to the family of a victim of impaired driving

Minors and Marijuana

Data from Colorado and Washington shows that the increased availability of marijuana has led to an increase in abuse by minors. Since legalization, the percentage of teens who used marijuana in the past month increased 20 percent in Colorado, yet decreased by 4 percent nationally.

Studies from the State of Washington have shown similar patterns of increased marijuana abuse by youths after legalization. Proposition 64 intends to regulate marijuana more akin to alcohol and tobaccos. Beer, booze and cigarettes are heavily advertised and normalized within our communities.

We should expect the same with legalized marijuana in California … and fight against it.

Smoke and Fire

Our concern with public safety extends beyond underage use and DUIs. The recent Loma Fire, which scorched almost 4,500 acres and destroyed 12 homes, started at an illegal commercial marijuana grow. These facilities dump illegal pesticides into our watersheds and wreak havoc on the environment. Without adequate resources to inspect the legal cultivators for safety and compliance and to fight illegal cultivation, residents and their environment will continue to suffer impacts like those created by the Loma fire.

We don’t want to be a buzzkill. The people of California—and Santa Clara County—voted to legalize recreational marijuana. Now we must ensure that the new law is implemented in a way that protects our children, families, and environment.

Jeff Rosen took office as District Attorney of Santa Clara County in 2011. Opinions in this article are the author’s own and do not necessarily reflect those of San Jose Inside.


  1. In Campbell, apparently, they want you to notify the police department if you intend to grow at home. However, in Trumps Amaerica, I would be hesitant to admit to committing a federal crime to any law enforcement agency.

  2. Has there ever been a study to prove or disprove marijuana as being the “gateway” drug? I always wonder if this topic is at least partially what Nikita Khrushchev had in mind when he stated:

    “We do not have to invade the United States, we will destroy you from within.”

    Not quite on the topic, here’s another of his that I’ll always remember:

    “We can’t expect the American people to jump from capitalism to communism, but we can assist their elected leaders in giving them small doses of socialism, until they awaken one day to find that they have communism.

    For the moment, we seem to have dodged that one.

    • > “We can’t expect the American people to jump from capitalism to communism, but we can assist their elected leaders in giving them small doses of socialism, until they awaken one day to find that they have communism.

      The late Tom Hayden, left-wing politician extraordinaire and co-founder of the “Campaign for Economic Democracy”, once famously said: “you can’t sell socialism door-to-door”. He was saying exactly what you suggested: “don’t call it socialism and give it to them in small doses”.

      “Campaign for Economic Democracy” was extremely clever. Most people have a positive knee-jerk to the term “democracy” and think it is a good idea. But the notion of “economic democracy” is not a principle of a “free market”; it is really an articulation of “socialism” without using the word “socialism”. It’s the notion that “everyone gets a vote on how to spend your money.”

      • > The gateway myth has been firmly put to bed,

        No. It hasn’t.


        > However, they say, “some evidence suggests smoking marijuana may trigger a heart attack among individuals with diagnosed heart disease.” There’s also some evidence that smoking marijuana during pregnancy is linked to lower birth weight in the offspring.

        > Evidence suggests that smoking marijuana on a regular basis is associated with more frequent chronic bronchitis and worse respiratory symptoms, such as chronic cough, the scientists say. Etc. etc.

  3. > There are three major areas where the state must bolster Proposition 64: protecting people from dangerous drivers who are high, keeping young people from access and harm, and protecting the environment and our communities from fires and other impacts.

    Good list, as far as it goes.

    I think there is a fourth area where serious regulatory oversight is required: the health effects of pot. There are LOTS and LOTS of studies, and piles of scientific evidence about the adverse health and behavioral effects of pot. “Big marijuana” simply overwhelmed these issues in its campaign to legalize pot with mammoth amounts of cash and trendy tribal advertising focused on “here and now” voters who just want to have fun (i.e, millennials).

    Despite the pro-pot claims, marijuana IS addictive to some people, and pot sellers are profiting from people’s misery.

    • Marijuana is far safer than alcohol, tobacco, and even fast food for that matter. Does that mean it is harmless, no. Should it be illegal, of course not. And please, check the fortunes 500, you won’t find a single “big marijuana” booeyman anywhere. That mythical beast is just as real as the gateway unicorn. It doesn’t exist.

      • > Marijuana is far safer than alcohol, tobacco,. . . .

        Alcohol and tobacco are not “safe”. Didn’t you know?

      • Fortune 500? No it’s not there, maybe the cartel 500, or the the mule 500, or the grateful dead 500.
        Over the last 50 years I’ve known about 6 people that OD, were shot, knifed, or crashed and burned.
        One murdered an old women, two more lost there minds, two lost son’s. I have a few friend that still
        smoke $h!+.
        Oh my point none of them started with cocaine, heroin, LSD, peyote, crack, KJ.
        Watching their hobby turn into dependents or an illusion, rather sad, and yes I had plenty of alcoholic
        friends wipe out as well. But Al Capone and Joe Kennedy didn’t have a problem with giving the people just what they wanted neither did El Chapo.

        Puff away Yousless!

  4. D.A. Rosen, thank you for your trepidatious warnings towards the public on prop 64.

    I agree with everything you say. Only question I have is, do you know if the BOS has any rumblings towards allowing cultivation in the unincorporated hills surrounding the county?

    SJO, Yousef

    Arguing over “Which is safer” is like, “My dad can beat up your dad!” The simple answer is both are probably mildly dangerous in small doses, and very dangerous in larger doses. How can you tell what is a large, and what is a small dose? You pass out on a large dose, you can function with a little bit of impairment on a small dose.

  5. No. I think I’ll do as my County does, not as they say.
    San Jose and Santa Clara County pick and choose which federal laws they’ll respect and enforce. So why can’t I just pick and choose which state and local laws I will respect and obey?

    It’s my opinion that I’m a safe driver even when I’m stoned.
    Think I’ll get high now and take my Hummer for a spin.

    As a representative of this scofflaw County, Jeff Rosen is on very thin ice telling us to obey the law.

    • Don’t forget your machine gun, pistols, and lots of 30 round mags John!
      I hear you can pick up some fun grenades and RPG’s in Chinatown.

      • Nah. That can’t be right. Immigrants have all been vetted. We can relax in the knowledge that they all love their new land and obey it’s laws.

          • Google and Starbucks are in a race to the bottom for the most diminished public image in the Trump era.

          • I guess out of the 94 million unemployed people we have in this country starbucks can’t find any BA’s qualified to pour coffee. Refugees will work for slave wages while the money grubbing leftwing CEO collect millions in benefits, how progressive is that ?

    • > Not sure if Outside the Bubble realizes it was Nikita Kruschchev’s quote.


      Tom Hayden plagiarized a Soviet Communist. Imagine that!

  6. The data from Colorado and Washington has been manipulated. I recently read the Rocky Mountain High Intensity Drug Trafficking Area report and it is a purely politically driven document. For example, the detection threshold for THC in the bloodstream during DUI stops was lowered by 50% after legalization, which makes it appear that Colorado suddenly had a huge spike in marijuana DUI. In fact, if you remove this from the data set, the level of marijuana DUIs has barely changed. The footnotes give it all away: “The number of DUID arrests in which marijuana was mentioned reflects any DUID arrest where possible marijuana intoxication is mentioned by the officer in the report and is not necessarily indicative of legal intoxication.” Translation: we don’t have any evidence, but hey, the police said it, so let’s call that a statistic. Conveniently, the original report indicating the threshold change disappeared a few months ago and was replaced by an edition that omits this little gem, but still contains all kinds of contradictory sidebars and footnotes that undermine the entire report. Well, that and a lot of supposedly causal links marijuana use and rising crime that are about as flimsy as a lace curtain. This is what happens when you start with false data; your evidence will always be skewed. But what the hell, truth means nothing in this country anyways.

  7. Pot is now legal! Enjoy the ride!
    Cartels will rein in the bucks and buy politicians while laughing all the way to the bank.
    The road is open and most current voters are ignorant as hell.
    Good luck!

  8. DA Rosen, you say, “Do you know that it is still illegal to smoke marijuana in public…”. Can you tell me what law is being broken if I smoke marijuana on the corner of 1st and Santa Clara (less then 25 feet from a doorway)? I cant seem to find that statute.

    What law is being broken if I drive down the road and my three passengers are smoking a bong with the windows down and the music thumping? I’m having trouble finding that statute.

    If I wreck that car that I’m driving and seriously injure or kill someone. Can the police draw blood while unconscious in the hospital? (not displaying any indication of intoxication..bong and marijuana in the car).

  9. The people in Santa Clara County receiving social services should be given the opportunity to learn new skills, particularly modern day cultivation of marijuana, and earn some college credits along the way.

  10. To DA Rosen,
    I have seen 2 reports on TV in the last few weeks warning about marijuana that has been contaminated with toxic
    mold and bacteria that has resulted in death or sickening patients with weakened immune systems, IE cancer patients.
    There are no FDA rules or regulating that control the quality of this drug.

    Who should be held liable when people are killed or injured by this product that is being licensed by locale or state governments in violation of federal law?

    Do you think the individual growers or distributor could be criminally negligent or even local regulatory agency or personnel that are involved in quality control?

    Should liability insurance be required to sell this product?

  11. “a level of THC at or above a defined limit. Without a numerical standard to evaluate marijuana DUI impairment,”

    The problem is the science/tech, exactly. THC levels within a single person correlate to impairment, but across the population of users sensitivity has maybe 20x variation. Tolerances build to an absurd level in those using it daily for relief from chronic pain. (Impairment declines over time too, encouraging greater use.) Another science challenge is how the THC sticks around in the body for weeks.

    We must face it – pot is different. Lacking am efficacious test law enforcement must use side-of-the-road standards for detecting functional impairment, same as they did pre-breathalyzer.

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