New Marijuana Law (I-502) - Seattle Cannabis DUI
Washington State Marijuana DUI
DUI defense is always affected by admissibility of tests to determine alcohol, but now the State has enacted a new portion of the DUI statute to crack down on Marijuana use. Drivers suspected of marijuana use have always come under scrutiny and previously, when charged the State could only speculate as to the "impairment" level of the driver. But now, there is a new legal standard for impaired drivers who have been driving while using marijuana, it is 5 ng/mL. How did the State come up with this standard? Who knows! There are no agreed treatises or studies of any sort which conclude that absolutely every driver is impaired at 5 ng/mL, but the State is using this "level" nonetheless. It is a per se level, so that means, even if you are a regular user of Marijuana in Washington State and are arrested for a Marijuana DUI, the prosecution only has to show that your blood results were 5 ng/mL and they get a conviction. There is no speculating as to whether that particular individual isn't impaired, they are presumed impaired even though there is no documentation (treatise, scientific studies, etc.) to establish this finding. I find this highly suspect and very concerning. My advice to anyone suspected of a Seattle Marijuana DUI is, don't drive at all after smoking marijuana.
Problems with Marijuana DUI Evidence
Numerous defense challenges to the results in Marijuana DUI cases are certain to arise, especially given the fact that there is no way to estimate how many tokes or puffs get someone to the "per se" level of 5 ng/mL. In breath test cases concerning alcohol there is a guideline (albeit from the 1930s) wherein you can estimate a BAC level (Widmark's formula). However, there is no such guideline for cannabis. In fact, numerous studies indicate that estimating marijuana impairment via plasma (i.e., a blood draw) is problematic and inconclusive. Nevertheless, the legislature will enact the 5 ng/mL standard level and you will be presumed guilty. Think also how this affects Medical Marijuana users. They are authorized to consume marijuana, but given there is no way to estimate what level they may reach after just a couple of puffs, this new DUI Marijuana law is essentially "no tolerance." It precludes the use because drivers are risking a criminal conviction even if they are using under the law!
Marijuana DUI - Cannabis DUI Advice
Seeing as how 5 ng/mL is such a low standard, with no apparent scientific standard for estimation or determination of impairment, it is best to just not drive at all after using marijuana. Also, considering the government put no effort into determining how different varieties of marijuana may affect individuals, it is advisable to find other transportation. This new statute and enactment by the government, in my humble opinion, is foolish, and without any true scientific conclusions it is draconian . I'm prepared to fight for you if you have been charged with a Seattle Marijuana DUI, Seattle Cannabis DUI or Washington State Marijuana DUI. In fact, my first "Not Guilty" DUI verdict was a case involving and allegedly impaired driver who was smoking marijuana! Contact us today to discuss your case!
Current Statue (RCW 46.61.502)
(1) A person is guilty of driving while under the influence of intoxicating liquor, marijuana, or any drug if the person drives a vehicle within this state:
(a) And the person has, within two hours after driving, an alcohol concentration of 0.08 or higher as shown by analysis of the person's breath or blood made under RCW 46.61.506; or
(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 or affected by intoxicating liquor, marijuana, or any drug; 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.
(3)(a) It is an affirmative defense to a violation of subsection (1)(a) of this section, which the defendant must prove by a preponderance of the evidence, that the defendant consumed a sufficient quantity of alcohol after the time of driving and before the administration of an analysis of the person's breath or blood to cause the defendant's alcohol concentration to be 0.08 or more within two hours after driving. The court shall not admit evidence of this defense unless the defendant notifies the prosecution prior to the omnibus or pretrial hearing in the case of the defendant's intent to assert the affirmative defense.
(b) It is an affirmative defense to a violation of subsection (1)(b) of this section, 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. The court shall not admit evidence of this defense unless the defendant notifies the prosecution prior to the omnibus or pretrial hearing in the case of the defendant's intent to assert the affirmative defense.
(4)(a) Analyses of blood or breath 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 an alcohol concentration of 0.08 or more in violation of subsection (1)(a) of this section, and in any case in which the analysis shows an alcohol concentration above 0.00 may be used as evidence that a person was under the influence of or affected by intoxicating liquor or any drug in violation of subsection (1)(c) or (d) of this section.
(b) 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 in violation of subsection (1)(b) of this section, 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 in violation of subsection (1)(c) or (d) of this section.
(5) Except as provided in subsection (6) of this section, a violation of this section is a gross misdemeanor.
(6) It is a class C felony punishable under chapter 9.94A RCW, or chapter 13.40 RCW if the person is a juvenile, if:
(a) The person has four or more prior offenses within ten years as defined in RCW 46.61.5055; or
(b) The person has ever previously been convicted of:
(i) Vehicular homicide while under the influence of intoxicating liquor or any drug, RCW 46.61.520(1)(a);
(ii) Vehicular assault while under the influence of intoxicating liquor or any drug, RCW 46.61.522(1)(b);
(iii) An out-of-state offense comparable to the offense specified in (b)(i) or (ii) of this subsection; or
(iv) A violation of this subsection (6) or RCW 46.61.504(6).
THEREFORE, even if you are legally consuming, smoking marijuana, you are subjected to arrest for driving a motor vehicle afterward. If you have been arrested for a Washington State Marijuana DUI, call today!
(a) And the person has, within two hours after driving, an alcohol concentration of 0.08 or higher as shown by analysis of the person's breath or blood made under RCW 46.61.506; or
(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 or affected by intoxicating liquor, marijuana, or any drug; 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.
(3)(a) It is an affirmative defense to a violation of subsection (1)(a) of this section, which the defendant must prove by a preponderance of the evidence, that the defendant consumed a sufficient quantity of alcohol after the time of driving and before the administration of an analysis of the person's breath or blood to cause the defendant's alcohol concentration to be 0.08 or more within two hours after driving. The court shall not admit evidence of this defense unless the defendant notifies the prosecution prior to the omnibus or pretrial hearing in the case of the defendant's intent to assert the affirmative defense.
(b) It is an affirmative defense to a violation of subsection (1)(b) of this section, 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. The court shall not admit evidence of this defense unless the defendant notifies the prosecution prior to the omnibus or pretrial hearing in the case of the defendant's intent to assert the affirmative defense.
(4)(a) Analyses of blood or breath 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 an alcohol concentration of 0.08 or more in violation of subsection (1)(a) of this section, and in any case in which the analysis shows an alcohol concentration above 0.00 may be used as evidence that a person was under the influence of or affected by intoxicating liquor or any drug in violation of subsection (1)(c) or (d) of this section.
(b) 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 in violation of subsection (1)(b) of this section, 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 in violation of subsection (1)(c) or (d) of this section.
(5) Except as provided in subsection (6) of this section, a violation of this section is a gross misdemeanor.
(6) It is a class C felony punishable under chapter 9.94A RCW, or chapter 13.40 RCW if the person is a juvenile, if:
(a) The person has four or more prior offenses within ten years as defined in RCW 46.61.5055; or
(b) The person has ever previously been convicted of:
(i) Vehicular homicide while under the influence of intoxicating liquor or any drug, RCW 46.61.520(1)(a);
(ii) Vehicular assault while under the influence of intoxicating liquor or any drug, RCW 46.61.522(1)(b);
(iii) An out-of-state offense comparable to the offense specified in (b)(i) or (ii) of this subsection; or
(iv) A violation of this subsection (6) or RCW 46.61.504(6).
THEREFORE, even if you are legally consuming, smoking marijuana, you are subjected to arrest for driving a motor vehicle afterward. If you have been arrested for a Washington State Marijuana DUI, call today!
by Nathan Webb
