At the end of 2012 Washington voters approved Initiative 502 which legalized possession of marijuana by persons over 21. In the Washington Laws, there is a statute that “saves” sentences and or convictions that exist when the law changes (to the benefit of the defendant) after the fact. For example – if there was a hypothetical law against selling beans, and you were convicted of selling beans, and then the law changed to make the sale of beans legal, your bean selling conviction would still stand as a valid conviction. The issue with I-502 was that people were being sentenced for marijuana possession long after marijuana was legal. This was happening when individuals were on diversion style agreements that they entered when marijuana was illegal, and then they somehow failed on the diversion and were kicked off and sentenced – when marijuana was legal.

Effect of State v. Rose


The Washington Court of Appeals in State v. Rose corrected this issue. The basic facts were that in 2012, Rose was smoking marijuana while fishing on the Yakima River. A Fish & Wildlife officer busted him for the marijuana possession. In October of that year, Rose entered into a deferral. Two months later, in December of 2012, I-502 went into effect. In January 2013, the district court revoked Rose's deferral and found him guilty. At sentencing Rose moved to dismiss based on I-502's decriminalization. The district court denied his dismissal, citing RCW 10.01.040 – the “saving” clause previously mentioned.


This revocation issue made its way to the Washington Court of Appeals. December 17, 2015, the Court ruled on the Rose case, overturning the District and Superior Court’s convictions. It was held that the “savings” clause would no longer allow the conviction for possession of marijuana when someone is bumped off of an old possession of marijuana deferred prosecution. What that means is if a person entered into some type of diversion agreement while marijuana was illegal, if the diversion agreement is revoked it will not lead to a conviction.

Published in Witt Law Group Blog
April 20, 2019

Marijuana DUI

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:

RCW 46.61.502

(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.

Similarities

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.

Differences

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.

Published in Criminal Defense

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 

Published in Witt Law Group Blog

When I-502 passed in 2012, big changes happened in Washington. The Initiative didn’t just create rules for the legal use of marijuana, there were some trickle down impacts that most defense attorneys saw coming.

To appease those who were skeptical that a civilized society could use cannabis without absolute chaos ensuing, there were numerous “safe guards” that were created. There were educational programs set up through the state to help people learn about cannabis and the risks to teens. Information was disseminated regarding medical marijuana authorization and who would be considered credentialed under the oversight of the Washington State Liquor and Cannabis Board. Additionally, to address the risk of people becoming impaired and driving, lawmakers decided on a per se standard with regard to Marijuana DUIs.

The skeptics got their way   

 

In Washington, the per se standard is 5ng of THC per milliliter of blood. This standard met with disapproval by many who found it arbitrary. There was research prior to the passing of the Initiative, as well as following it, which did not support the notion that THC and Carboxy-THC could predict driving impairment. (National Highway Traffic Safety Administration)

Carboxy-THC does not measure psychomotor impairment and, additionally, this metabolite can exist in your system for hours, days, or weeks after use. Some citizens and defense attorneys were concerned that, despite waiting to drive for an appropriate time following the use of cannabis, the per se rule of 5 ng/mL would subject a person to a DUI who was not actually impaired. Since science has yet to provide us a bright line rule regarding cannabis use and impairment, the debate continues and so does the per se standard.

Get educated if you choose to use marijuana

 

Whether you agree or disagree with the per se standard of 5ng/mL, it is important for those who use cannabis recreationally or for medicinal reasons to educate themselves on this topic. It is entirely possible to be arrested for a Marijuana DUI even if you have not smoked or ingested cannabis for more than the suggested time by Washington State Department of Health or WSLCB. You may believe (perhaps accurately) that you are not impaired, but it is still possible to be prosecuted for DUI.

Published in Witt Law Group Blog