On November 6, 2012, the voters of the State of Washington passed Initiative 502 on marijuana reform. From the broader public perspective, the passage of this measure legalizes the adult possession of small amounts of marijuana for personal use and creates both a system to tax the sale of marijuana and marijuana products and a revenue stream designated for substance abuse education and treatment. From a DUI perspective, I-502 creates a very specific legal standard for Marijuana DUI setting a per se limit of active THC of 5 nanograms per milliliter of blood.
Marijuana DUI prosecution in Washington State after I-502
Prior to the passage of I-502, there was no set legal limit for THC as it related to Washington DUI law. If the state believed an individual had been driving while impaired by the use of marijuana, it had to prove actual impairment irrespective of the actual level of THC in driver’s system. Under the new law, set to go into effect on December 6, 2012, the presence of 5 nanograms of THC in a state approved blood test within two hour of driving creates a per se DUI akin to a .08 level of alcohol.
Studies suggest that individuals can pass physical and cognitive tests at a much higher THC level than the current legal standard. Additionally, people would likely register the 5 nanograms level or higher even several hours after marijuana consumption. So whereas the laws as they relate to alcohol DUI at least attempt to criminalize driving after consuming an amount that would affect one’s ability to drive, the recently passed THC levels appear to more arbitrary. In fact, whereas there is tolerance within the law for driving after drinking alcohol responsibly, no such tolerance exists with respect to marijuana consumption prior to driving after the passage of I-502..
Washington Marijuana DUI Consequences
While the new marijuana DUI statute changes how and when the state can pursue a marijuana DUI conviction, the general consequences of a marijuana DUI remain unchanged except for one major exception. Prior to the new law, there existed no administrative sanction for driving a motor vehicle with THC in the driver’s system, regardless of the level. Now, under this statute, as with drivers who either refuse a breath test or give a breast sample greater than or equal to .08, there are licensing consequences under the new marijuana DUI law as well. As in cases where an individual refuses a breath test or blood alcohol test, refusing legally requested marijuana blood sample could result in an administrative license revocation of at least one year; two years if it is a second or subsequent offense within seven years. A blood test result of 5.0 nanograms of THC or greater would result in a 90 day suspension; two years for second or subsequent offense within seven years. The criminal sanctions associated with a marijuana DUI conviction remain largely unchanged.
Marijuana DUI and Persons Under 21 Years of Age
Zero Tolerance. I-502 only authorizes adults over the age of 21 to possess undergone ounce of marijuana. The new marijuana DUI guidelines reflect this lack of tolerance. A driver under 21 years old who has a THC concentration above 0.0 but less than 5.0 could face charges of Driving After Consuming Marijuana. This charge is similar to the charge of Minor Operating a Motor Vehicle After Consuming Alcohol. It is not a DUI and does not have the same penalties as a DUI but it is still a crime and may have stiff licensing consequences. If the THC was greater than 5.0, the minor driver could face a marijuana DUI just the same as his or her adult counter part would, regardless of his age.
Effects on Medical Marijuana users
It’s one thing to tell a recreational drug user that there is no tolerance for driving after consumption of the drug. It’s another thing entirely to take the keys out of the hands of one who relies on a prescription medication regardless of impairment or lack thereof. Unfortunately, that is exactly what I-502 appears to do. Because the established legal limit is so low, it is very likely that anyone who uses marijuana on a daily basis for medical and therapeutic purposes will find themselves over the new legal limit at virtually all times. Be sure to consult with your physician as well as a Washington DUI attorney to see how the new law may apply to you.
Advice to drivers after the passage of I-502
Essentially we give the same advice to marijuana users as we do to those who drive after consuming alcohol. If you drive after consuming any amount of marijuana, as with alcohol, you are testing fate. People get stopped, arrested and charged for DUI, even when they are not impaired, all of the time. Often times, the initial stop has nothing to do with impaired driving but then turns into a DUI investigation after to odor of an intoxicant is discovered. And whereas the smell of alcoholic beverages can be difficult to mask, the smell of marijuana is even more difficult to hide. If you consume marijuana do not drive, you will be at even greater risk for a DUI prosecution than ever.