April 22, 2019

Summons For A DUI

I received a summons for a DUI.  What should I do? 

Historically, when a person was arrested for DUI, he or she would be taken into custody or, alternatively, directed by the arresting officer to be present in Court the next date Court was in session. The initial appearance or arraignment for the DUI was typically on the Monday following the arrest. This has been the common practice for decades. Rarely, would a defendant be mailed a Summons regarding a DUI charge and, certainly, not six or nine months after the initial arrest. Over the course of the last year, this has all changed.

Why The Change In Practice?

The legalization of marijuana has changed how law enforcement and lawyers handle criminal charges. Following the passage of Initiative I-502, law enforcement and policy makers have been in a constant race to keep ahead of the issues that “legal” marijuana creates.

What is The Change?

For a large portion of DUI arrests, law enforcement is now drawing blood. Since so many citizens partake in the use of marijuana, it logically follows that a DUI suspect might be impaired due to THC. Without a blood draw, there is no definitive way to know if the person has smoked or ingested marijuana.


Unfortunately, when a DUI suspect has their blood drawn, the result is not available immediately, as it is with a BAC machine measuring alcohol. Consequently, the arresting officer will simply file a report, submit the blood to the toxicology lab, and then forward that information to the Prosecutor’s office. Despite the fact that the suspect is technically “under arrest” during the process, he or she is not booked into jail and does not remain in custody. Furthermore, the suspect will not be directed to appear in Court. The reason for the change in protocol is twofold.


The primary reason for the change in protocol is simply logistics. It takes several months for law enforcement to receive the result from the blood draw. The blood samples must be sent to the Washington State Crime Lab, which is providing those results in approximately four months. We have seen results come back eight months later!


The second reason for the change is that the delay in blood results creates a subsequent legal challenge. The Court and the Prosecutor must comply with a suspect’s speedy trial rights, which is 90 days following the arraignment. If the Prosecutor’s office charges a case immediately following the arrest, this means they must be ready to take the case to trial within the 90 day window. Clearly, with their evidence at the toxicology lab for four or more months, this wouldn’t work. The Prosecutor would lose all of these cases based on the legal challenge from any competent defense attorney. Therefore, it is imperative that the Prosecutor delay the arraignment.

Community Safety

Once upon a time, the Prosecution believed in the importance of getting a DUI suspect into Court quickly, so that they could set “conditions of release.” In other words, cases were prioritized to ensure community safety. Historically, on a Monday following a DUI arrest, the Prosecutor would request that the Court order a defendant to consume no alcohol or non-prescribed drugs. After I-502, the priority of community safety has changed. Without a faster turn around time from the toxicology lab, the Prosecution must alter strategy to comply with the rights of the accused. Simply put, the State cannot charge a person without evidence ready to take to trial.

Real World Consequences

Hypothetically, a person can be arrested in January and wait in limbo for many months to know whether their recreational marijuana use met the 5 ng/ml standard for a DUI. After several months pass, most people think their blood sample was fine. Since the suspect is released the night of the blood draw with no instruction on when (if at all) to go to Court, he or she believes life can go on as normal.


In May, a job opportunity arises out of state that the individual can’t pass up. The person moves on with life and that means a new address. Since many months have passed, the person does not think to leave a forwarding address or contact Washington Department of Licensing. Six months later, when the DUI is charged, a Summons is mailed to the last known address. Not surprisingly, the person misses the court date listed on the Summons. Now, a Bench Warrant is issued for their arrest. Additionally, the individual also fails to receive the information regarding the 7 day window to request a Department of Licensing Hearing to challenge their license suspension and, therefore, is now driving on a suspended license.


As you can see, there are many frustrating challenges that flow from the delay in blood results. Unfortunately, this “hypothetical” is actually happening to many Washington citizens everyday.

What Should I do?

First and foremost, keep your address up to date with the Department of Licensing. Once your case is charged, the Prosecutor will give the information to the Court Clerk’s Office and they send out the Summons. They send the Summons to the last known address provided to DOL.


Second, get ahead of the DUI charge. When we are hired for a DUI and there is no date set, we typically advise our clients to take some proactive steps. We will consider whether, in a particular case, an alcohol evaluation or a DUI Victims Impact panel might be beneficial to complete before the arraignment date. Additionally, we keep in regular contact with the Prosecutor’s Office so we know as soon as the case has been charged. There are strategies that we employ that can make the arraignment – and the remainder of the case – go much more smoothly.


There are too many pitfalls to go through this process alone. If you have received a Summons for a DUI, or you were arrested and have not yet received a Summons, give our office a call for a free, confidential consultation.

Published in Criminal Defense
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

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