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Marijuana DUIs in Washington State

Marijuana DUIs in Washington State

Posted by Robert J. Ault on Nov 20, 2014 | 0 Comments

Ever since the legalization of recreational marijuana was approved in Washington State on November 6th, 2012 I have been asked countless times to what degree we can expect the number of Marijuana DUI arrests to increase. If I knew the precise answer, I would be playing the lotto rather than writing this article. However, I think a brief review of the changes made subsequent to the passage of I-502 will provide guidance as to what can be expected in relation to Washington State Marijuana DUI arrests.

CHANGE IN MARIJUANA LAW: Obviously, it is no longer a crime for those 21 or older to possess marijuana (with certain exceptions as to premises, etc...) Further, marijuana can now be purchased at stores located throughout Washington State. Thus, marijuana is now available to a much larger population. In the past, only those with a medical marijuana license or those willing to violate the law could possess marijuana. Thus, Marijuana DUI arrestees will no longer consist of people who had obtained marijuana on the black-market. Rather, the law-abiding citizen will now be at-risk for a potential Marijuana DUI.

CHANGE IN MARIJUANA DUI LAW: Prior to the legalization of recreational marijuana, the law concerning drug-related DUIs merely consisted of:

A person is guilty of Driving While Under the Influence of... any drug if the person drives a vehicle within the state:

(C) While to person is under the influence of or affected by any drug; or

(D) While the person is under the combined influence of or affected by intoxicating by intoxicating liquor and any drug.

However, with the passage of I-502, the following law now applies to Marijuana (THC) DUIs:

A person is guilty of Driving While Under the Influence of... marijuana or any drug if the person drives a vehicle within the state:

(B) And the person has, within two hours of 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 to person is under the influence of or affected by any drug; or

(D) While the person is under the combined influence of or affected by intoxicating by intoxicating liquor and any drug.

Thus, with the legalization of recreational marijuana came a "per se" legal limit, as to a specific amount of THC in someone's blood qualifying them as DUI.  Such is obviously similar to the .080 per se limit for alcohol-related DUIs.  The attorneys at Veitch Ault & Associates have been fighting Marijuana DUI charges for a combined 28 years, and have always had an abundance of success.  Unlike alcohol, there isn't a great deal of research connecting marijuana use & one's ability to safely operate a motor vehicle.  Further, while performance on standardized Field Sobriety Tests (FST) are supposedly a determining factor in assessing one's state of intoxication due to alcohol, the same cannot be said for marijuana.  Without a "per se" legal limit for marijuana, a trier of fact was left to determine whether the THC previously consumed by a driver was, in fact, sufficient to cause that specific driver to be under the influence of/affected by the drug.  Thus, while a driver may have had what many would consider to be a significant amount of THC in their system, a skilled Washington State Defense attorney could always argue that the subject metabolized marijuana differently than others. The change in the per se Marijuana DUI law clearly presents more of a challenge for Washington DUI defense attorneys.  For example, I could have a client whose driving is not in the least bit indicative of intoxication; the driver could look & sound entirely unaffected; they could have perfect coordination & provide entirely sensical responses...  That being said, a jury should still convict the client if they believe the 5.0 THC test is accurate (this is assuming a judge previously found a legal basis for contact, along with a lawful detention/arrest, followed by ruling the blood results admissible).  In essence, a driver completely unaffected whatsoever by THC can now be convicted of DUI if their blood comes into evidence & is believed to be accurate.  I should also add that the per se prong of Marijuana DUIs (i.e. a THC level of 5.0 or greater) has brought on a proposed civil Department of Licensing (DOL) administrative suspension under RCW 46.20.308.  Previously, a blood level of any number of THC in one's system would not bring a proposed administrative suspension from DOL.  However, now, a THC level of 5.0 or greater is likely to bring a proposed license suspension of atleast 90-days (depending on prior administrative actions).    I am not claiming that a per se limit for THC is improper.  However, anyone who consumes marijuana should be cognizant of how easy it is for their blood to reach 5.0 THC.  We will all be affected differently by marijuana, based on an assortment of factors.  Further, because of the unfamiliarity people have with THC & the absolute naivete regarding where one's THC level stands, it is, in my opinion, ABSOLUTELY IMPERATIVE that marijuana not be consumed less than 24 hours prior to the time a person gets behind the wheel.  I am far from an expert when it comes to the human ability to metabolize marijuana, but I am yet to have a client who wasn't in absolute shock when they became aware of their THC level.  In my opinion, some of the people most susceptible to punishment under the new per se Marijuana DUI law are medical marijuana users.  Many of these people have been consuming marijuana for a long time & will reach 5.0 THC while feeling next to nothing.  I should point out that it is only active THC that is used with per se Marijuana DUIs.  Contrary to many prosecutors' beliefs, Carboxy (an inactive metabolite of THC) says absolutely nothing about impairment or actual THC in one's system.

While Marijuana DUIs in Washington State may appear tougher to defend subsequent to the enactment of I-502, the attorneys at Veitch Ault & Associates have been preparing for these changes for some time, & are already successfully fighting alleged Marijuana DUI charges.  If you or someone you know has been arrested for DUI, contact Veitch Ault & Associates (425-452-1600) immediately to ensure that one gives themselves the best chance possible to defend themselves.

About the Author

Robert J. Ault

Rob's status as one of the premier DUI defense lawyers in the state includes being repeatedly recognized as a Super Lawyer Rising Star.


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