When Washington State added marijuana per se limits to the DUI statute, they unintentionally created a legal paradox. While an alcohol-related DUI is based on science, the marijuana DUI standards are based on fear. The marijuana standard of 5 ng/ml is simply an arbitrary number based on no clear understanding of THC on impairment.
When the marijuana DUI law was created, it was generally agreed upon that the 5 ng/ml standard did not truly measure impairment. Attempted measurement of impairment is too subjective based on many physiological factors that differ from person to person. The origin of the 5 ng/ml standard is not impressive. Rather than a basis in agreed upon science, it is the result of clamoring from multiple special interest groups.
No Correlation Between Per Se Standard and Impairment
Marijuana does not have a steady burn off rate in our bodies like alcohol does. After an individual uses marijuana, even long after they are no longer “high,” the THC is stored in fat cells and slowly released over days or weeks. The “high,” or impairment, may only lasts a short period, but the measurable amount THC remains for a much longer period.
The Marijuana DUI Statute
The statute that is used to criminalize marijuana and driving is simply a modified version of the decades old DUI statute. RCW 46.61.502 was modified in the following ways to regulate marijuana:
(1) A person is guilty of driving while under the influence of … marijuana … if the person drives a vehicle within this state:
(b) The person has, within two hours after driving, a THC concentration of 5.00 or higher as shown by analysis of the person’s blood made under RCW 46.61.506; or
(c) While the person is under the influence of … marijuana; or
(d) While the person is under the combined influence of or affected by intoxicating liquor, marijuana, and any drug.
(2) The fact that a person charged with a violation of this section is or has been entitled to use a drug under the laws of this state shall not constitute a defense against a charge of violating this section.
The marijuana DUI is a gross misdemeanor, just like the alcohol DUI. The requirements upon sentencing are similar as well. An individual convicted of a marijuana DUI will also need to obtain an alcohol and drug evaluation, follow through with treatment, and complete a DUI Victim’s Impact Panel.
Difference 1 is the timeline. The timeline is much different with a marijuana DUI. With an alcohol DUI, an individual typically goes to Court for a first appearance on the next judicial day. The criminal process starts immediately. With a marijuana DUI, the Court process may not start for 4 to 8 months. Long enough where the individual can forget about it – and then they receive a summons in the mail. The reason for this long delay is that the arresting officer will send a suspect’s blood sample off to the Washington State Crime Lab. The Crime Lab doesn’t turn the result around for many months. Then, once the result is received by the arresting officer, it is finally sent off to the local prosecuting attorney’s office, who will ultimately charge the case.
Difference 2 is the presence of a warrant. In the great majority of marijuana DUI cases, the root of the blood result is a warrant. For law enforcement, obtaining a warrant is a specialized process fraught with pitfalls where law enforcement is prone to make errors. If an error can be exposed in any part of the warrant application process, then the result of the warrant (the blood result) can be thrown out.
Marijuana DUI cases are defensible. If you have been charged with a marijuana DUI case, you need to contact an experienced DUI defense attorney right away. You do not want to wait the 4 or 8 months until the case is charged. Within the first several days there are strategic decisions that need to be made (should you go obtain your own independent test?) and timelines that need to be recognized (do I need to request a DOL hearing within 7 days?). These decisions are critical and can not be revisited once it is too late.
If you have a question about a marijuana DUI case, call our office for a free, confidential consultation.