Jennifer Witt

Jennifer Witt

September 17, 2018

Marijuana

Marijuana is a tricky substance when it comes to the law. Most people in Washington State know that, after I-502 passed, recreational use became legal for adults over 21 years old. There were several restrictions placed on the legal use but, generally speaking, most Washington citizens believe there is wide latitude in the purchase and use of marijuana. While that is true, the devil is in the details—and there are a lot details.

Where

First, where you use marijuana changes the jurisdiction of your case. We handle cases that arise in cities, counties, and on federal land. The prosecutors in these various courts handle marijuana cases differently. For example, prosecutors all over the state will use the per se marijuana DUI standard (THC concentration of 5 ng/ml) when analyzing the elements of that criminal charge but that doesn’t mean they will pursue the same punishment. If your blood test is well over the per se limit, a prosecutor in Kitsap County may not agree to a Pre-Trial Diversion Agreement but a federal prosecutor may consider it.

Possession of marijuana in a National Park will invoke different consequences than if you are possessing marijuana at home. Similarly, if you cross the street to your neighborhood school and consume marijuana on school grounds, you can expect to be treated differently than if you smoked in your living room.

If you cross the Washington State border into Oregon with marijuana in your car, you have committed a federal crime. While you can possess marijuana in Washington and Oregon, you are not permitted to transport marijuana across state lines.

If you are going to trial for federal charges, you may not mention your authorization to use medical marijuana as a defense. If you are authorized to grow plants in a non-commercial cooperative under Washington law, that information would also be inadmissible in a federal case.

So, as you can see, marijuana charges, consequences, and trial strategy will all vary depending on where you are charged. While current federal memos and procedures are intended to assure recreational and medical users they will not face federal prosecution, there are no guarantees. The biggest risk for prosecution is for those individuals who choose to grow or distribute without following the law. However, uninformed users are also at risk for prosecution. They may believe their use falls within Washington legal guidelines but they are actually engaging in behavior that could be prosecuted—including driving with THC concentrations higher than permitted by statute.

Finally, if you use or possess marijuana on federal land or federally controlled property such as Forest Service Land, Park Service, Postal property, Veterans Administration, or any federal buildings including on military property, you can be prosecuted under federal regulations and under Title 21 of the United States Code Controlled Substances Act. State laws and attitudes toward marijuana use do not have any bearing on federal prosecutions. Basically, if you are going to be on or crossing through any federal land or building, do not carry marijuana on you or in your vehicle.

When

Second, when you use marijuana can have a big impact on the outcome of your case.

If you use marijuana everyday but not within 5 or 6 hours of driving, you may still violate RCW 46.61.502 as your blood may contain THC concentrations over 5 ng/ml. Regular users may have higher concentrations of THC in their blood.

The blood test will not decipher when you last used marijuana nor provide a measure of psychoactive impairment—and it doesn’t have to. If your test establishes a blood concentration higher than 5 ng/ml of blood, you have violated the DUI statute.

There may still be legal challenges to make regarding the blood draw. There is a specific protocol that must be followed when the blood sample is taken and the sample must be handled in a certain manner. Once your defense attorney has the reports, an analysis can be done to determine if there are any legal challenges regarding your blood sample.

Why

While recreational use of marijuana is allowed by adults over 21 years old, medical marijuana use is also allowed in unique circumstances for people under 21 years of age. There are lengthy requirements and a tremendous number of limitations in that use if you are under 21. Furthermore, regardless of age, anyone using marijuana for medical reasons documented by the recommendation of a qualified provider is still required to follow the law under RCW 46.61.502 and refrain from operating a vehicle if their THC concentrations would be 5 ng/ml or higher. There is no medical marijuana defense to driving impaired.

How

Whether you smoke or consume edibles, how you consume marijuana will impact all human’s differently. Daily use will likely impact your blood draw even if you were not consuming marijuana hours before you drove. In at least one state, there are saliva tests available that will indicate psychoactive metabolites present at the time of your stop. Unfortunately, in Washington, law enforcement is not using that technology. If you are released or bail out within hours of your stop, we are aware of a Kitsap County treatment provider who has saliva tests that will provide a more accurate measurement of recent use. You must be tested within 12 hours of the stop.

For those people who consume edibles, it is important to know the amount of THC in each product. Edibles can produce a higher level of THC for a longer period of time.

In rare cases, CBD oils can also put you at risk. Most research will tell you that CBD oils will not produce a positive blood test. While generally true, there are transdermal patches that will cause THC to enter the blood stream. Additionally, CBD oils will usually advertise high CBD and low THC but there is no standard definition for these products and subjects have tested positive for the metabolite carboxy-THC on urine tests. Additionally, some CBD oils are sold at very high levels and, when combined with even a small amount of marijuana use, higher than expected THC levels can occur. Therefore, your combination of use (CBD oils, Hemp oils, edibles, smoking) might put you at risk for a blood draw that violates the DUI statute.

“But I wasn’t impaired!” Defense

There is NO defense of “I know my limit and I know I wasn’t impaired.” This is not a defense to alcohol-related DUIs (and makes the Prosecutor think you are in denial of your alcohol abuse) and, currently, it does not work for marijuana-related DUIs. While the science is clear that there is no “one size” standard for measuring impairment by marijuana, the laws have set the standard as THC concentrations of 5 nanograms per milliliter of blood or higher. Until science can catch up and measure the psychoactive forms of THC during your stop, the state can meet its burden using the per se standard. That does not mean there aren’t other potential defenses. Those legal defenses must be analyzed by an experienced criminal defense lawyer on a case by case basis.

Sharing is caring—but not with marijuana

Sharing can quickly become distributing. Definitely do not sell any of your marijuana. In Washington, all marijuana is sold in a licensed facility. It might not seem like a big deal to give or sell weed to your friend, drug laws do not necessarily follow common sense. The fact that marijuana is a Schedule I drug (along with heroin) and is considered more dangerous (higher risk for abuse and no medical benefit) than cocaine or methamphetamines, tells you that there is work to be done on drug reform. If you want to use marijuana, it is best to be very informed on the law and how to avoid criminal charges.

In the meantime, become informed so you are not a statistic in drug enforcement efforts.

If you are being investigated or concerned that your drug use could pose a legal problem, feel free to contact our office for a consultation.

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You have weed in the car and the officer wants to ask you about it. What to do?

The best encounter with law enforcement is NO encounter 

What is my case worth? Many people want to know the value of their case when they first meet with a personal injury lawyer. To be able to answer that fairly, the client needs to answer these 5 questions for the lawyer.

1) Are your injuries documented?

Basically, did you immediately get treatment following the accident or did you delay a month? That month will allow the adjuster to claim that you may have sustained the accident somewhere else or that you aren’t really hurt from the accident. While many attorneys accurately state that “injuries drive the value of a case,” that is only true where injuries are actually documented.

2) Did you receive treatment?

Did you get treatment for your injures and did you stick to the treatment plan? This gets tricky because many people will answer yes to the first part of the question but have a lot of excuses regarding that latter part of the question. If you aren’t following the treatment plan, why aren’t you? There needs to be a very legitimate reason. Are you seeking alternative therapies or getting second opinions? If you simply don’t want to go to medical appointments, that will reduce the value of your case.

3)  What was the cost of your treatment?

How much money has been spent by you or your insurance on medical bills? Do you have large bills (CAT scans or MRI) or did you decide to get a massage or two and stop treating? One person might have prolonged neck pain so they get an MRI. Other clients will see the chiropractor for 5 visits and assume the pain will gradually go away. Generally speaking, the two clients won’t have the same case value.

4)  What was the amount of the property damage?

How much damage was done to your car or motorcycle? Did you document it? Just like injuries, it is important to document body damage immediately. Taking pictures is critical and noting any damage to the inside of a vehicle as well. If an insurance company is disputing the severity of your injuries, it is helpful to have a picture of your totaled vehicle.

5)  Is there insurance? 

What insurance policies are at play? Was the negligent driver uninsured? Did the negligent driver have a policy through an employer? Do you have PIP or UIM? If you or the other party were driving rental cars, was additional insurance purchased? This is the difficult part of the equation. While a person may be entitled to $500,000 for their injuries, there needs to be a policy available. Sometimes, the policy limits are $250,000 and that will be the most that the injured person can recover. Again, finding insurance policies is an investigation. See our other blog on 5 Ways to Ruin Your Personal Injury Case and refer to point #3! Never believe a negligent driver when he tells you he doesn’t have insurance. That should always be confirmed by your attorney or insurance company.

Witt Law Group PS is a personal injury and criminal defense law firm with officers in Gig Harbor and Bremerton Washington.

There are 5 big mistakes that will tank your personal injury case.  Don't fall into these traps!

1) Believing that the third party adjuster (negligent driver’s insurance) is the final arbiter of whether you “have a case” is a big mistake.

We have had clients in the past get into an accident but, due to various challenges, were not able to immediately seek medical treatment or reply to their own insurance company. Whether it was due to a funeral or a new job, they didn’t respond to any adjusters. While you have a duty to cooperate with your own insurance (with some limitations), you are not required to respond to all of those “nasty grams” and phone calls that come after you blow off the third party adjuster. Before hiring us, some clients would get notices that their “claim would be closed” due to no response. That was really confusing to the client. They thought that meant they couldn’t’ have a case against the negligent driver. Practically speaking, it means nothing. The only big issue to be aware of is your statute of limitations regarding your case (this is the time limit you have to file a lawsuit after an injury). You or your attorney can always contact the 3rd party insurance when you are ready. Your attorney will be watching for the 3 year statute of limitations (in Washington) regarding your personal injury claim.

2) Believing a third party adjuster about liability is a big mistake.

Occasionally, right out of the gate, the 3rd party adjuster will tell you that they don’t believe it was 100% their insured’s fault. The adjuster will assert that you are partially at fault (even when the police report says otherwise). What the adjuster says is not gospel. They do that all the time. It is an attempt to reduce what they are on the hook for. Disputing liability is one of many ways that less than stellar insurance companies will dispute paying a claim. Sometimes, you just have to file a lawsuit to move past this. If you are handling your own case, this might be a time when you really need to consult an attorney.

3) It is a big mistake to believe a negligent driver when they tell you that they don’t have insurance.

We’ve seen more and more of this. The at fault driver will say he or she has no insurance. If you are handling the case on your own, you might assume you’re out of luck. Hopefully, you have PIP or UIM but you might be tempted to drop it. On more than half of those cases, we found out there WAS insurance and occasionally there is more than one policy at play. On several occasions, the driver was “on the job” so the employer’s policy is involved.

4) Not seeking treatment right away or a gap in treatment are both big mistakes for personal injury cases.

Think about it from the insurance company’s perspective. If you were truly injured, you’d get help. So, while life is busy, don’t neglect your care. Many months down the road, gaps in treatment will really hurt your effort to negotiate a fair settlement.

5) Failing to take pictures of your car, motorcycle or bike is a BIG mistake.

Frequently, when a car or motorcycle is totaled, it will be taken away and your chance to photograph the damage is gone. Don’t let that happen to you! When we are in dispute with an adjuster regarding injuries and we can offer pictures of a car that is smashed beyond recognition, it’s a big help! It also makes it clear that, if those pictures are presented to a jury, denying a victim’s injuries looks like a bad faith move. So, as the old saying goes, a picture is worth a thousand words or, in a personal injury case, a much better settlement!

Witt Law Group PS is a personal injury and criminal defense law firm with locations in Gig Harbor and Bremerton Washington.  Thanks for reading.

If I am arrested for DUI, am I required to take the BAC at the police station?

Drivers in the State of Washington are assumed to consent to the breathalyzer request (BAC) by simply driving on the state’s roads. This is known as Implied Consent.

The statute reads in part: 

RCW 46.20.308
Implied consent—Test refusal—Procedures. (Effective until January 1, 2019.)
(1) Any person who operates a motor vehicle within this state is deemed to have given consent, subject to the provisions of RCW 46.61.506, to a test or tests of his or her breath for the purpose of determining the alcohol concentration in his or her breath if arrested for any offense where, at the time of the arrest, the arresting officer has reasonable grounds to believe the person had been driving or was in actual physical control of a motor vehicle while under the influence of intoxicating liquor or any drug or was in violation of RCW 46.61.503.
(2) The test or tests of breath shall be administered at the direction of a law enforcement officer having reasonable grounds to believe the person to have been driving or in actual physical control of a motor vehicle within this state while under the influence of intoxicating liquor or any drug or the person to have been driving or in actual physical control of a motor vehicle while having alcohol in a concentration in violation of RCW 46.61.503 in his or her system and being under the age of twenty-one. Prior to administering a breath test pursuant to this section, the officer shall inform the person of his or her right under this section to refuse the breath test, and of his or her right to have additional tests administered by any qualified person of his or her choosing as provided in RCW 46.61.506. The officer shall warn the driver, in substantially the following language, that:
(a) If the driver refuses to take the test, the driver's license, permit, or privilege to drive will be revoked or denied for at least one year; and
(b) If the driver refuses to take the test, the driver's refusal to take the test may be used in a criminal trial; and
(c) If the driver submits to the test and the test is administered, the driver's license, permit, or privilege to drive will be suspended, revoked, or denied for at least ninety days if:
(i) The driver is age twenty-one or over and the test indicates either that the alcohol concentration of the driver's breath is 0.08 or more; or
(ii) The driver is under age twenty-one and the test indicates either that the alcohol concentration of the driver's breath is 0.02 or more; or
(iii) The driver is under age twenty-one and the driver is in violation of RCW 46.61.502 or 46.61.504; and

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(4) Nothing in subsection (1), (2), or (3) of this section precludes a law enforcement officer from obtaining a person's blood to test for alcohol, marijuana, or any drug, pursuant to a search warrant, a valid waiver of the warrant requirement, when exigent circumstances exist, or under any other authority of law. Any blood drawn for the purpose of determining the person's alcohol, marijuana levels, or any drug, is drawn pursuant to this section when the officer has reasonable grounds to believe that the person is in physical control or driving a vehicle under the influence or in violation of RCW 46.61.503.

 Should you take the BAC test?

Boiled down, the statute says that 1) you consent by driving in Washington 2) if you refuse, you will face much stiffer penalties in your criminal case as well as your administrative consequences with DOL, and 3) you are specifically informed that your refusal can be used against you in trial. Your license will automatically be suspended and the suspension will last longer than if you had blown into the BAC. We have some clients happily tell us that they refused the BAC. Most often, these clients are from out of state. Unfortunately, being unaware of the implied consent rule is not a defense. Most defense attorneys will tell you that refusing only makes your case more difficult and the result more unpleasant. Even if your blow is high, there are still many options that your attorney can consider for suppression of the test. With a refusal, the defense attorney is much more limited in negotiation.

The BAC is different from the roadside test

Remember, the BAC at the police station is very different from the portable breath test (PBT). The officer will request that you submit to the PBT while conducting field sobriety tests along the road. There is no implied consent regarding field sobriety tests (FST). They are voluntary and are used by the officer to gain evidence regarding probable cause for your arrest. However, be aware that the Washington State Supreme Court in Mecham did uphold the lower court’s decision to allow the prosecution to reference the refusal to submit to FSTs as evidence and as well as discuss the refusal in closing. State v. Mecham, 186 Wn. 2nd 128 (2016). Defense attorneys everywhere are still scratching their head.

The ruling in Mecham seems to go against everything we know when advising clients that these tests are voluntary. The Court found that the FSTs are seizures but are not searches under the Fourth Amendment and, therefore, you have no Constitutional right to be protected from using that refusal as evidence of guilt. This is perplexing since an officer can’t gather “evidence” of probable cause for the arrest without you engaging in physical actions that the officer orders you to do. Consequently, many defense attorneys believe FSTs are definitely a “search” but we are still bound by the ruling in Mecham.

Regardless of the Mecham ruling, realize there are still opportunities to refute this “evidence of guilt” since there are a countless number of reasons innocent people would not submit to FSTs. For example, there are dozens of health issues that would cause a person to fail these tests and, therefore, they would rather go to the police station and speak to a lawyer about what they should do. It is best to consult with legal counsel if you are concerned about any refusal following a DUI arrest.

Witt Law Group PS is a DUI defense, criminal defense and personal injury law firm with offices in Bremerton and Gig Harbor Washington.