Breaking down ND's Measure 3: Legalizing recreational marijuana

We've been hearing the debate for months - should North Dakota legalize recreational marijuana? Voters will get their say on November 6th with Measure 3. We dig into the measure to break it all down.

It's become one of the most high-profile and heated debates in the 2018 election.

Legalizing marijuana in North Dakota.

We wanted to break through the noise, so to help, we started with Vogel Law Criminal Defense Attorney Jade Rosenfeldt.

She practices primarily in Minnesota and lives in Moorhead meaning she has no connection to Measure 3.

"My biggest concern is that it's simply just too broad. Basically, nobody can be prosecuted for any non-violent criminal behavior related to the use of marijuana," said Rosenfeldt.

With just a few pages of actual language, it would be the most liberal marijuana law in the country.

We quickly learned it's what the measure doesn't say, not what it says, that attorneys like Rosenfeldt see as an issue.

"It really lacks any specific measures. Basically what it is saying is that you can own, you can possess, you can use, you can distribute marijuana."

And in any amount.

The measure does exclude people under 21.

We reached out to the "Vote No" group for its biggest concerns on the measure.

Number one on the list?

The Supremacy Clause.

"It's extremely concerning. I mean, basically, they're saying anything that conflicts with this proposal is by the wayside," said Rosenfeldt

Even things like smoking ordinances could be in conflict.

Rosenfeldt said the measure would even seem to suggest that you could smoke marijuana just walking down the street.

Also on the list: DUI enforcement.

While alcohol-related DUI's will be unaffected, Rosenfeldt says driving under the influence of marijuana would be legal with this measure.

While she says there are few of these cases, it highlights a problem with how marijuana is detected in a person's system.

"It's difficult to prosecute because marijuana could be in someone's system for up to 28 days. So how do you prove that the person is actually under the influence of marijuana at the time you've stopped them," Rosenfeldt asked.

She says the same issues with detection will come into play for employers and employees.

"If you're doing mandatory drug testing the question is can someone use marijuana just like they can use alcohol - on their own time - and come to work and not be using it and how do you regulate that for an employer."

Supporters we talked to, along with attorneys and legal minds, admit this measure is flawed, but say the end - legalizing marijuana in North Dakota - justifies the means.

They expect lawmakers to be forced into action if this passes.

"If this gets passed they are going to have to call a special session, it would seem to me, to put some regulations in place and figure out how administratively they're going to do this," Rosenfeldt said.

Part of that administration would be expunging the more than 170,000 records of people who have marijuana convictions.

That has to happen within 30 days or people can sue the state.

"I think everyone is in a bit of a panic mode," said the legal counsel of the ND Association of Counties, Aaron Birst.

Birst said the deadline will be impossible to meet.

"The real concern would be even if you had unlimited resources, which counties don't, there's no way you could possibly bring in staff members to get that done within 30 days," he added.

Birst said there are also questions with what happens to convictions for marijuana linked to other crimes.

"From my perspective, I would've liked to see a little more input from all the stakeholders to try to get something that's workable, but in this current form, it's just almost impossible to work through."

We reached out to the "Vote Yes" side who has long argued the financial benefits of legalizing marijuana through tax revenue and allowing new opportunities for farmers and entrepreneurs.

The group's number one issue for proposing and supporting this measure, however, is preventing people from losing jobs, student loans or families from being torn apart for simple possession of marijuana.

That intention of the measure is something Rosenfeldt agrees with.

"I can certainly attest to the fact that we see far too many people being prosecuted for possession of marijuana, distribution of marijuana that are sitting in jail and getting felony convictions for these types of things and they just shouldn't be."

For now, it's started a conversation that voters will weigh in on - on November 6th.

"I think maybe what the goal here is to get this passed and have the legislature step in and sort of make those regulations, which makes sense and you could do that. But in the interim, what does the state of North Dakota do? I don't know what they do," said Rosenfeldt.

North Dakota voters approved medical marijuana with nearly 64 percent of the vote in 2016.

There have been years of hold-ups and patients still can't get it.

Another thing to remember: despite what measure may be passed, or even how it's interpreted by the state courts, marijuana is still illegal under Federal Law.