“Driving High” Marijuana DUI Law in Washington

Marijuana will be legal in the state of Washington starting on December 6, but drivers need to be aware that the ballot initiative that legalized it also included a new DUI Standard which may make driving riskier for regular users than the previous law did.

Under Washington law, adults (persons 21 years and old) may possess up to an ounce of processed marijuana, 16 ounces of marijuana-infused product (solid form), or 72 ounces of marijuana infused liquid product.

The DUI standard and physical control laws have set the THC level for intoxication at 5 nanograms per milliliter of blood. This has been deemed the level at which motor skills are impaired to the point that it is too dangerous for a person to operate a motor vehicle, and is similar to the standard for alcohol which is 0.08.

A driver’s THC must be tested through a blood test. The law that allows for a blood draw on a driver has changed, they are referred to as Implied Consent laws, and now the law allows for blood tests if the driver is suspected of being under the influence of marijuana.

The DUI standard for persons under age 21 is zero tolerance. Any driver under the age of 21 who is suspected of being under the influence of marijuana, and who subsequently tests for any amount of marijuana in their system, will be charged with DUI.

Washington State Patrol Spokeman Bob Calkins said, “Regardless of whether this person has been a regular user of marijuana, may have a routine THC level in his blood of this point or that point, if he’s driving OK, he’s probably not going to come to our attention. And if he’s driving badly, he probably is going to come to our attention.”

Part V of the initiative, the section that establishes the per se DUI limit of THC at 5ng/mL, has raised concern amongst medical marijuana advocates who say the new DUI law will lead to convictions for those who use marijuana to treat their ailments. The metabolite 11-COOH-THC, which is the secondary metabolite in marijuana that forms after consumption of cannabis and is also known as the metabolite that can remain in a person’s system for days to weeks, is explicitly excluded for from consideration for a DUI charge.

11-OH-THC is the active metabolite of THC. If both 11-OH-THC and 11-COOH-THC are present then motor impairment may still be present.

Hundreds of Marijuana Cases Dismissed in Light of I-502

King and Pierce County prosecutors are going to dismiss more than 220 misdemeanor marijuana cases after the passing of Initiative 502, which decriminalizes small amounts of marijuana.

King County, whose largest city is Seattle, has 175 case dismissals of people 21 and older who were charged with possession of one ounce or less of marijuana. I-502 does not begin until December 6th but Dan Satterberg, King County Prosecutor, has moved to retroactively apply the initiative. Satterberg said in a press release, “Although the effective date of I-502 is not until December 6, there is no point in continuing to seek criminal penalties for conduct that will be legal next month.”

Not long after, the King County Sheriff’s Office announced that their deputies “will not be directed to arrest or charge individuals caught with one ounce of less of marijuana following the passage of I-502.”

A group of academics found that in the past 25 years, there had been 241,000 misdemeanor marijuana possession cases in Washington, and 67,000 of them had been in past five years. Seattle City Attorney Pete Holmes said that when he took office, he stopped prosecuting simple possession marijuana cases altogether.

The Justice Department has not commented on the passing of I-502. Marijuana is still illegal under federal law, and some are worried that Washington state may be sued over legalization.

Washington Initiative 502 Will Set Standard for Marijuana DUI

Washington’s Initiative 502 would allow possession of up to one ounce of marijuana for adults over age 21. The initiative would also allow 16 ounces of solid marijuana infused products or 72 ounces of liquid marijuana, as long as they are purchased in a state-licensed store. It would still be illegal to possess non-medical marijuana that is grown or purchased outside of the state. A provision on Initiative 502 allows for prosecution of drivers who have more than 5 nanograms per milliliter of active THC metabolites in their system. Current law uses the same criminal statute for Marijuana DUI, drug DUI, and alcohol DUI.

Critics of the DUI provision warn marijuana users of how easy it could be to get charged with Marijuana DUI, which would carry significant and serious criminal charges. Washington’s current DUI law is based on implied consent and per se DUI provisions. This means that if you drive on Washington roads, you have already given consent to have your blood or breath tested if you are arrested for DUI, if the officer has reasonable grounds to believe you are impaired.

I-502 will add a per se threshold for THC whereas before there was none. The law will distinguish between THC and THC-COOH. THC-COOH is the inactive marijuana metabolite known as carboxy-THC which can be used under current law to convict drivers of DUI. The initiative would only consider THC concentration in DUI cases.