Canada is Looking to Bellingham PD for Tips and Lessons Learned on Marijuana DUI Enforcement
With Canada looking to legalize marijuana in 2018, they are looking to WA state for guidance on Marijuana DUIs. In this November 2017 news report, Bellingham PD and DUI attorney Jonathan Rands candidly describe the challenges of identifying Marijuana DUIs as there is no roadside test equivalent to the breathalyzer for alcohol-related DUIs.
Related Podcast: Marijuana and Roadside Tests. Scientific or Anecdotal?
The New Approach To Marijuana
On December 6, 2012, the "New Approach" to marijuana took effect, and this new approach certainly is radical in terms of the effect on DUI laws. Specifically, the crime of DUI has always encompassed legal and illegal drugs, but prior to the new approach, there was never a threshold limit of proof beyond a reasonable doubt. Previously, the standard was whether the driver was actually affected by the level of the drug in their blood.
The new approach initiative was brokered with a specific eye on Marijuana, and since it is a drug, known as DUI-Drugs, or what is quickly becoming known as DUI-D. Although are fond of saying DUI -M. In fact, the initiative lawyers very openly admit, that the new law was REQUIRED to address DUI. As a result, effective December 6, 2012, police agents who make an arrest for DUI will now have the authority to obtain a blood test without having to bother Judge and get a warrant for that blood if they "suspect" pot was previously consumed. However, post-September, 28, 2013, this is no longer the case. A warrant is now required absent emergency circumstances.
The public was supposed to be assuaged by the limitations on this power by being told that in order to obtain this blood Probable Cause would be required. Take it from me - a well-trained DUI defense lawyer with over 10 years of experience - this level is so low there is no protection of your rights. Although, the new warrant requirement helps.
As the possibility of the law became more likely, Washington State Law Enforcement began preparing with mandatory training of all commissioned officers. Practically speaking, having Advanced Roadside Impaired Driving Enforcement (A.R.I.D.E) training and noting the odor of marijuana, is likely all that is necessary to establish Probable Cause.
Related Blog Post: Understanding ARIDE & Standardized Field Sobriety Tests as a DUI Lawyer
The new pot law is intended to legalize and regulate the use and sale of Marijuana, Pot, Weed, or whatever be your favorite term for Marijuana. This legalization and regulation creates and affects numerous other statutes, but more importantly for the licensed driver, the important DUI statutes that have been amended, re-written, and created are:
- The Definition of the New THC Limit (RCW 46.04)
- Implied Consent to Provide Both Breath and Blood (RCW 46.20.308)
- License Suspension/Revocation Consequences for Over THC Limits and Refusals (RCW 46.20.3101)
- Adult DUI-D and Physical Control-Drugs (RCW 46.61.502, 46.61.504)
- Minor DUI-D: Zero Tolerance for THC (RCW 46.61.503)
- Mandatory Appearance if Arrested and Charged for a DUI-D (RCW 46.61.50571)
- The Admissibility of THC Blood Results (RCW 46.61.506)
- Commercial Driver's DUI-D: Zero Tolerance (Post Sept. 28, 2013)
Consider the legislative preamble to the "new" approach:
"The people intend to stop treating adult marijuana use as a crime and try a new approach that: (1) Allows law enforcement resources to be focused on violent and property crimes; (2) Generates new state and local tax revenue for education, health care, research, and substance abuse prevention; (3) Takes marijuana out of the hands of illegal drug organizations and brings it under a tightly regulated, state-licensed system similar to that for controlling hard alcohol. This measure authorizes the state liquor control board to regulate and tax marijuana for persons twenty-one years of age and older, and add a new threshold for driving under the influence of marijuana. This means if under age 21, there is no change in the criminal law, it remains."
Ironically, with the passage of I-502, the real focus is now on DUI-D crimes which are not property or violent crimes, AND the new threshold is nowhere near a limit that has ever established evidence of actual impairment. The irony is in the fact that the legislative intent and preamble (and pre-vote rhetoric also) states goals of "education, health care, research, and substance abuse prevention," yet, the new law creates a false threshold level thereby perpetuating the very myths they goals seek to eliminate.
The Definition of the New THC Limit
RCW 46.04: Pursuant to this newly created statute, DUI-D laws, the threshold limit for presumption of guilt for a DUI-D statute and subsequent charge is written as:
"THC concentration" means nanograms of delta-9 tetrahydrocannabinol per milliliter of a person's whole blood."
THC concentration does not include measurement of the metabolite THC-COOH, also known as carboxy-THC. First, the limit had to set, 5.00 ng, then they needed to define it in terms of measurement and therefore we also get a definition of THC and what it means. Once this was done, the statute simply incorporated the terms into the current DUI-Alcohol laws.
Implied Consent: Breath & Blood
RCW 46.20.308 has new language married to it to simply piggyback on the DUI alcohol statue. Many drivers are NOT aware of this VERY important statute prior to the amendment and with the new amendment, it has become even more powerful and dangerous to the regular marijuana user, regardless of the method of ingestion, if they rely on their personal driver's license and even more devastating to the Commercial Driver License (CDL) holder.
This statute is known as the "Implied Consent" Law. Essentially, this is an "implied" agreement between a driver and the State, that the majority of drivers have no idea that they have agreed to this by holding a Washington Driver's License. This is the statute that allows the Department Of Licensing (DoL) to take action against a driver and their license BEFORE any court action. After December 6, 2012, but before September 28, 2013, this statute now applied equally to Alcohol and THC levels. It was created first for the .08 BAC laws, but was now incorporated THC levels and identical consequences as alcohol. The statute stated:
"Any person who operates a motor vehicle within this state is deemed to have given consent, to a test or tests of his or her breath or blood for the purpose of determining the alcohol concentration, THC concentration, or presence of any drug in his or her breath or blood if arrested for any offense where, at the time of the arrest, the arresting officer has reasonable grounds to believe the person had been driving or was in actual physical control of a motor vehicle while under the influence of intoxicating liquor or any drug or was in violation of RCW 46.61.503. Neither consent nor this section precludes a police officer from obtaining a search warrant for a person's breath or blood."
Translation: You had agreed to give a sample of breath or blood if stopped and arrested for DUI or DUI-D, but you are permitted to withdraw this previously given consent, BUT IF YOU DO, the police officer can quickly apply for an obtain a warrant from a Judge. This will then override your refusal and compel you to produce the sample. This will be done with, or without your cooperation.
The most fascinating aspect of DUI defense is how quickly the law changes. ON September 28, 2013 this statute above was re-drafted reworked as a result of the United States Supreme Court ruling that warrantless blood draws violated a driver's 4th Amendment Right to be free of unreasonable search and seizure. As a result, the Washington legislature saw the need to respond with a new law that reads as follows:
Except as provided in this section, the test administered shall be of the breath only. If an individual is unconscious or is under arrest for the crime of felony driving under the influence of intoxicating liquor or drugs under RCW 46.61.502(6), felony physical control of a motor vehicle while under the influence of intoxicating liquor or any drug under RCW 46.61.504(6), vehicular homicide as provided in RCW 46.61.520, or vehicular assault as provided in RCW 46.61.522, or if an individual is under arrest for the crime of driving while under the influence of intoxicating liquor or drugs as provided in RCW 46.61.502, which arrest results from an accident in which there has been serious bodily injury to another person, a breath or blood test may be administered without the consent of the individual so arrested pursuant to a search warrant, a valid waiver of the warrant requirement, or when exigent circumstances exist.
If, following his or her arrest and receipt of warnings under subsection (2) of this section, the person arrested refuses upon the request of a law enforcement officer to submit to a test or tests of his or her breath, no test shall be given except as authorized by a search warrant.
Finally, the era of forced searches has come to an end and the search of a DUI suspect has as much protection as everyone sought to be searched.
License Suspension/Revocation Consequences for Over THC Limit and Refusals
RCW 46.20.3101: The above consequences described above don't end there, as the statute further states that you can refuse but:
"If the driver refuses to take the test, the driver's license, permit, or privilege to drive will be revoked or denied for at least one year; If the driver refuses to take the test, the driver's refusal to take the test may be used in a criminal trial."
Conversely, if a driver does take the take the test, there are also serious consequences depending on the amount of THC found in the blood along with the age of the driver. When a refusal happens, if the police seek and obtain a search warrant your blood can still be drawn against your will.
Consider another part of the law regarding age 21 and over:
"If the driver submits to the test and the test is administered, the driver's license, permit, or privilege to drive will be suspended, revoked, or denied for at least ninety days (90) if the driver is age twenty-one (21) or over and the test indicates either that the alcohol concentration of the driver's breath or blood is 0.08 or more, or that the THC concentration of the driver's blood is 5.00 or more;"
Also, consider the same law and consequences (90 days license suspension) for under 21 drivers:
"If the driver is under age twenty-one (16-20 years old) and the test indicates either that the alcohol concentration of the driver's breath or blood is 0.02 or more, or that the THC concentration of the driver's blood is above 0.00."
As you can see there is a threshold limit for Minors and alcohol (.02 BAC) and there is a threshold limit for adults (.08 BAC for alcohol and 5.00 ng for THC) but when it comes to minors and pot, there is no similar threshold as it is ZERO TOLERANCE. This is an interesting paradox because there is no impairment at the 5.00 ng limit for over 21, yet there is zero tolerance for under 21 DUI-D levels. Apparently, the focus on drug education under the "new approach" is not concerned with those under 21 and it appears as if some "morality" has slipped into the rational if there ever was such a rationale.
Continuing on into the consequences of the new approach limits, if there is a license suspension due to a THC test or refusal, a person will be able to continue driving if they choose too but they will need an ignition interlock driver's license (IIL) during this time. Again you can see the folly of the new approach sanctions. The Ignition Interlock Device (IID) and companion license detect alcohol only and NOT drugs of any kind, yet a DUI-D pot suspension will require an alcohol-monitoring device on your car. The rational connection between the purpose of the law and the consequences under the law once more are shown to be non-existent.
Related Blog Post: Rules, Regulations, & Repercussions Of The Ignition Interlock License
Refusal of a Blood Test for DUI-D (THC)
Staying with the license consequences from DoL before any criminal consequences are imposed are such that the consequences of a refusal to provide a breath or blood test from the Department Of Licensing (separate and at in most instances BEFORE the criminal sanctions):
"A first refusal within seven years, (where there has not been a previous incident within seven years that resulted in administrative action under this section), revocation or denial for one (1) year;
For a second or subsequent refusal within seven years (or for a first refusal where there has been one or more previous incidents within seven years that have resulted in administrative action under this section), revocation or denial for two (2) years or until the person reaches age twenty-one, whichever is longer."
An IID is available for those who are revoked under this statute just like those suspended for 90 days.
Blood Sample Provided
If you give a blood sample and you are over 21 years old AND the THC concentration of the person's blood was 5.00 or more:
"A first incident within seven years, where there has not been a previous incident within seven years that resulted in administrative action under this section, suspension for ninety days; A second or subsequent incident within seven years, revocation or denial for two years."
In the case of an incident where a person under age twenty-one has submitted to blood and the THC concentration of the person's blood was above 0.00:
"A first incident within seven years, suspension or denial for ninety days; A second or subsequent incident within seven years, revocation or denial for one year or until the person reaches age twenty-one, whichever is longer."
If there are criminal charges that follow, and there usually is and there is a conviction for DUI-D there are additional suspensions and revocations, but if the driver suffers a DoL sanction and then a criminal suspension follows, the DoL shall grant credit on a day-for-day basis for any portion of a suspension, revocation, or denial already served under this section for a suspension, revocation, or denial imposed arising out of the same incident.
Adult DUI-D and Physical Control-Drugs
RCW46.61.502 & RCW 46.61.504: These are the statutes that define a DUI and Physical Control, and it adds and incorporates the THC language along with the standard and historical DUI-Alcohol language and elements.
A person is guilty of driving while under the influence of marijuana, or any drug if
"the person drives a vehicle within this state and 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."
A person is guilty of physical control of a motor vehicle while under the influence of marijuana, or any drug if:
"the person has actual physical control of a vehicle within this state and 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."
Above is the distinction between the two facts of the two different charges, one occurs when the person is driving and then stopped (DUI), the other occurs where driving may have occurred, but at the time of police contact the person, there is no driving, meaning the vehicle is not moving. What follows applies to each statute above equally:
- The fact that a person charged 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.
- It is an affirmative defense, which the defendant must prove by a preponderance of the evidence, that the defendant consumed a sufficient quantity of marijuana after the time of driving and before the administration of an analysis of the person's blood to cause the defendant's THC concentration to be 5.00 or more within two hours after driving.
- Analyses of blood samples obtained more than two hours after the alleged driving may be used as evidence that within two hours of the alleged driving, a person had a THC concentration of 5.00 or more and in any case in which the analysis shows a THC concentration above 0.00 may be used as evidence that a person was under the influence of or affected by marijuana.
There is no distinction between an Alcohol DUI and a DUI-D conviction for purposes of prior offenses. A DUI is a DUI no matter what the basis of the conviction is and thus the statutes regarding felony DUI and other priors and the sections remains unchanged.
Minor DUI-D: Zero Tolerance for THC
RCW 46.61.503: As mentioned above, the law with respect to under age 21 is zero tolerance when it comes to THC. Unlike the under 21 alcohol limit of .02, the THC limit is 0.0ng. The statute reads:
"A person is guilty of driving or being in physical control of a motor vehicle after consuming marijuana if the person operates or is in physical control of a motor vehicle within this state and the person is:
- Under the age of twenty-one; and
- Has, within 2 hours of operating or being in physical control of the motor vehicle,
- A THC concentration above 0.00;
- It is an affirmative defense that the defendant must prove by a preponderance of the evidence, that the defendant consumed a sufficient quantity of marijuana after the time of driving or being in physical control and before the administration of an analysis blood to cause the defendant's THC concentration to be in violation of this section within two hours after driving or being in physical control;
- Analyses of blood samples obtained more than two hours after the alleged driving or being in physical control may be used as evidence that within two hours of the alleged driving or being in physical control, a person had a THC concentration in violation of this section."
Fortunately with zero tolerance, there was no change in the seriousness of the crime as it remains a misdemeanor, but if the limits are over 0.0 and less than 5.0 it will simply stay a minor DUI, but for 5.0 ng or more, and under 21, you will likely be charged under the adult DUI statute as this is the case with alcohol when the minor is over .02 and over .08. Being under age 21 does not save you from the more serious charge when you are over that adult limit.
Mandatory Appearance When Arrested & Charged DUI-D
RCW 46.61.50571: When charged with a DUI, Physical Control or Minor DUI and you are provided an actual ticket, citation, or complaint at the time of the arrest the Court rules require a first appearance before a judicial officer within one judicial day after the arrest. This has always been the case for DUI-Alcohol charges and this statute is merely amended to incorporate DUI-D arrest now also.
Traditionally, the Minor DUI arrests could be waived, however, this statue in adding DUI-D THC arrests, states that:
"all appearances required by this section are mandatory and may not be waived."
Perhaps the trend of waiving arraignment will cease when judges and prosecutors revisit this statute as I have.
Admissibility: THC Blood Results
RCW 46.61.506: The blanket admission of breath tests with a limited showing of the ticket having printed was the new standard after a prior legislative fix and s Washington Supreme Court Review in the case of City of Fircrest v. Jensen. The statute remains unaffected on this issue, only now it permits the admission of the test for THC concentration.
There is no reason to believe that the statute on admission will be applied any differently than the breath test results, EXCEPT for the fact that the blood testing procedure (Chromatography) is much more involved and open to contamination.
Related Podcast: Science in the Courtroom: Go Behind the Scenes with Blood Testing
This statute is the same standard for admissibility of the blood test at a criminal trial or at a civil procedure DoL level when they are determining whether to take action against your license due to an arrest.
The statute now reads as (Italics new info):
- Upon the trial of any civil or criminal action or proceeding arising out of acts alleged to have been committed by any person while driving or in actual physical control of a vehicle while under the influence of intoxicating liquor or any drug;
- If the person's alcohol concentration is less than 0.08 or the person's THC concentration is less than 5.00, it is evidence that may be considered with other competent evidence in determining whether the person was under the influence of intoxicating liquor or any drug;
- The blood analysis of the person's THC concentration shall be based upon nanograms per milliliter of whole blood;
- The foregoing provisions of this section shall not be construed as limiting the introduction of any other competent evidence bearing upon the question whether the person was under the influence of intoxicating liquor or any drug;
- Analysis of the person's blood to be considered valid under the provisions of this section shall have been performed according to methods approved by the state toxicologist and by an individual possessing a valid permit issued by the state toxicologist for this purpose;
- The state toxicologist is directed to approve satisfactory techniques or methods, to supervise the examination of individuals to ascertain their qualifications and competence to conduct such analyses, and to issue permits which shall be subject to termination or revocation at the discretion of the state toxicologist;
- For purposes of this section, "prima facie evidence" is evidence of sufficient circumstances that would support a logical and reasonable inference of the facts sought to be proved. In assessing whether there is sufficient evidence of the foundational facts, the court or administrative tribunal is to assume the truth of the prosecution's or department's evidence and all reasonable inferences from it in a light most favorable to the prosecution or department;
- Nothing in this section shall be deemed to prevent the subject of the test from challenging the reliability or accuracy of the test, the reliability or functioning of the instrument, or any maintenance procedures.
- Such challenges, however, shall not preclude the admissibility of the test once the prosecution or department has made a prima facie showing of the requirements contained in (a) of this subsection. Instead, such challenges may be considered by the trier of fact in determining what weight to give to the test result;
- The person tested may have a physician, or a qualified technician, chemist, registered nurse, or other qualified person of his or her own choosing administer one or more tests in addition to any administered at the direction of a law enforcement officer.
- The test will be admissible if the person establishes the general acceptability of the testing technique or method. The failure or inability to obtain an additional test by a person shall not preclude the admission of evidence relating to the test or tests taken at the direction of a law enforcement officer;
- Upon the request of the person who shall submit to a test or tests at the request of a law enforcement officer, full information concerning the test or tests shall be made available to him or her or his or her attorney.
I have always been fond of saying that this statute allows anything that is printed by the breath test machine, and now with the addition of the THC limits, the statue will pretty much allow for admission of a blood test that is also printed at the end of a very complex analyses called "Chromatography". A blood test analyses for THC uses a different instrument called Mass Spectrometry.
The possible errors along the way, if discovered by only the most well-trained DUI Defense lawyers, will likely be pushed aside in favor of admission. However, there is still room to expose the problems, to explain their significance, and above all even with a positive, over 5.00 ng test, show that impairment is in fact not anywhere close to this new limit. But to do that, you will need the most experienced, dedicated, and knowledge DUI Defense Lawyer or Attorney at your side.