I have always stated that the Washington State Marijuana DUI Per Se limit is baseless and does not have an iota of analysis to back it up. The per se limit in Washington state is 5 ng/mL of whole blood of active THC. That means if you are caught driving after smoking marijuana and have a blood level of 5 ng/mL of whole blood you are automatically (per se) guilty of DUI.
Recently a study was completed basing the results of some DREs (Drug Recognition Exams) and their correlation to blood draws when THC was used. The researchers concluded, " Based on this analysis, a quantitative threshold for per se laws for THC following cannabis use cannot be scientifically supported." Basically the research shows the per se limit in Washington of 5ng/mL of whole blood is baseless or as they say, "it went up in smoke."
One interesting note was that in this study, on the walk and turn test (one of the standardized tests used to assist officers in making an arrest decision) 55.5% of the people who had not smoked at all passed it while only 6% of the marijuana smokers did, those that were drug free. (Note: this means the 44.5% of sober people couldn't pass the walk and turn). When the researchers compared the results to the various levels of THC found in the blood of those individuals who did smoke, there was no correlation to people with lower or higher THC levels doing better or worse. Essentially they determined the roadside tests are superfluous when making a determination as to the impairment of someone suspected of smoking or ingesting marijuana and driving.
You can read the article here for further information.
Call us today if you have been arrested for a DUI in Washington State. (425) 522-4200.
Showing posts with label Marijuana DUI. Show all posts
Showing posts with label Marijuana DUI. Show all posts
Friday, May 13, 2016
Tuesday, May 12, 2015
Can Police just take my blood if arrested for DUI?
This is a common question and the answer depends upon the circumstances. If you were arrested for an alcohol related DUI and you are capable of providing a breath sample (i.e., not injured as the result of an accident or incapable due to some ailment like emphysema) the officer must first offer you the opportunity to submit a sample of your breath. If you refuse then the office may apply for a search warrant to obtain your blood and if approved the officer can obtain that blood by necessary means. This means you could literally be strapped down onto a hospital bed and your blood could be drawn. Now that is an extreme circumstance, but I have seen it happen.
Another situation in which the officer can take blood is when you consent to a blood draw. The officer may simply ask you if you consent to a blood draw by presenting you with a consent form and if you agree, it is feasible the State would be able to utilize that blood draw in a subsequent trial.
In the instance wherein the officer suspects you have been consuming or ingesting some type of drug other than alcohol, for example, marijuana or cocaine or oxycontin, then the officer may again apply for a warrant and if approved, your blood may be drawn and ostensibly used as evidence at a trial.
The bottom line is that unless you readily consent to a blood draw, the officer must obtain a warrant. It is always advisable to ask for an attorney immediately upon arrest to preserve your right to challenge any subsequently obtained evidence in a DUI case or any criminal case for that matter.
The rule is: ask for an attorney and do not speak with police after an arrest, it is a very basic premise and one anyone arrested should exercise but the capacity to adhere to that can prove challenging, especially if one is under the influence. There is a line from a Shrek movie that goes something like this:
Donkey: I have the right to remain silent!
Shrek: Yes Donkey you have the right, what you lack is the capacity...
So, don't consent to any search and always ask for an attorney.
As always, please feel free to call us at the Webb Law Firm for advice and a free consultation for any DUI arrest.
Another situation in which the officer can take blood is when you consent to a blood draw. The officer may simply ask you if you consent to a blood draw by presenting you with a consent form and if you agree, it is feasible the State would be able to utilize that blood draw in a subsequent trial.
In the instance wherein the officer suspects you have been consuming or ingesting some type of drug other than alcohol, for example, marijuana or cocaine or oxycontin, then the officer may again apply for a warrant and if approved, your blood may be drawn and ostensibly used as evidence at a trial.
The bottom line is that unless you readily consent to a blood draw, the officer must obtain a warrant. It is always advisable to ask for an attorney immediately upon arrest to preserve your right to challenge any subsequently obtained evidence in a DUI case or any criminal case for that matter.
The rule is: ask for an attorney and do not speak with police after an arrest, it is a very basic premise and one anyone arrested should exercise but the capacity to adhere to that can prove challenging, especially if one is under the influence. There is a line from a Shrek movie that goes something like this:
Donkey: I have the right to remain silent!
Shrek: Yes Donkey you have the right, what you lack is the capacity...
So, don't consent to any search and always ask for an attorney.
As always, please feel free to call us at the Webb Law Firm for advice and a free consultation for any DUI arrest.
Wednesday, December 10, 2014
Seattle DUI Attorney, Nate Webb, Marijuana DUI Lawyer discusses: Is one puff too many, two puffs, three puffs?
Recently I had an individual come and see me about a possible Marijuana DUI charge. Hypothetically if an individual admitted to use, which is legal in the State of Washington, but was adamant they were not impaired by their "one" puff prior to driving and that the use was for therapeutic reasons can they still be convicted?. Typcially I would assure an individual that one puff wouldn't get them close to the per se limit of 5 ng/mL of whole blood. But it does beg the question, how many puffs are too much given the 5 ng/mL standard?
When the legislature enacted the per se limit of 5 ng/mL of whole blood as a per se "impaired" limit it essentially relied upon other state's per se limits. There is no definitive research out there which establishes that ever person who had a whole blood concentration of 5 ng/mL is impaired to the degree that they cannot operate a motor vehicle.
So when someone is a regular user, much like a regular consumer of alcohol, how does that individual know how much is too much? There is simply no way to tell given the quality of the herb, the potency of the particular varietal they smoked or consumed. It is a very slippery slope that people are not encountering. When in doubt, don't smoke and drive but if you are therapeutic user for example you would be well-advised to have your blood checked a few times after you normal use to determine where you are on the spectrum of ng/mL measurements.
Personally I believe it isn't fair for the therapeutic users to be subjected to arrest simply because some overzealous trooper or officer smells marijuana and automatically thinks they have someone impaired when they typically have very limited ability to determine impairment using roadside test which were implemented to gauge impairment of drivers who consumed alcohol. This area is ripe for litigation given law enforcements limited ability to tell if someone is impaired or under the influence of marijuana.
Just look at NHTSA's own description of use of marijuana, it is so vague I wonder if the Washington State Legislature really did any research at all. Also, see this resource which says that marijuana use doesn't significantly impact driving abilities as well as a University of Washington study which says it still needs more research to definitively say whether there is any impact on driving.
If you or someone you know has been arrested for a DUI, including a Marijuana DUI, call today to speak with a highly experienced DUI attorney, Seattle Marijuana DUI Lawyer, Nate Webb at (425) 398-4323.
When the legislature enacted the per se limit of 5 ng/mL of whole blood as a per se "impaired" limit it essentially relied upon other state's per se limits. There is no definitive research out there which establishes that ever person who had a whole blood concentration of 5 ng/mL is impaired to the degree that they cannot operate a motor vehicle.
So when someone is a regular user, much like a regular consumer of alcohol, how does that individual know how much is too much? There is simply no way to tell given the quality of the herb, the potency of the particular varietal they smoked or consumed. It is a very slippery slope that people are not encountering. When in doubt, don't smoke and drive but if you are therapeutic user for example you would be well-advised to have your blood checked a few times after you normal use to determine where you are on the spectrum of ng/mL measurements.
Personally I believe it isn't fair for the therapeutic users to be subjected to arrest simply because some overzealous trooper or officer smells marijuana and automatically thinks they have someone impaired when they typically have very limited ability to determine impairment using roadside test which were implemented to gauge impairment of drivers who consumed alcohol. This area is ripe for litigation given law enforcements limited ability to tell if someone is impaired or under the influence of marijuana.
Just look at NHTSA's own description of use of marijuana, it is so vague I wonder if the Washington State Legislature really did any research at all. Also, see this resource which says that marijuana use doesn't significantly impact driving abilities as well as a University of Washington study which says it still needs more research to definitively say whether there is any impact on driving.
If you or someone you know has been arrested for a DUI, including a Marijuana DUI, call today to speak with a highly experienced DUI attorney, Seattle Marijuana DUI Lawyer, Nate Webb at (425) 398-4323.
Tuesday, November 12, 2013
New Marijuana DUI Laws explained.
Washington State's NEW Marijuana DUI Standards
Do you think it is illegal to smoke marijuana and then drive? Well, it is not! Seriously? Yes. Just like alcohol (it is not illegal to consume alcohol and drive in Washington, or any state for that matter) driving after marijuana use is not illegal so long as the driver is not under the influence or affected by the marijuana or over the per-se (commonly referred to as the "legal limit") of 5 ng/mL of blood.
Every Washington State DUI case is affected by admissibility of tests to determine alcohol, but now the State of Washington's legislature has enacted a new portion of the DUI statute to crack down on Marijuana use while driving. 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 available, 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 (THC) 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 an allegedly impaired driver who was smoking marijuana! Contact us today to discuss your case!
Current Statue (RCW) on DUI - Drugs
RCW 46.61.502 Driving under the influence. (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.
THEREFORE, even if you are legally consuming, smoking marijuana, you are subjected to arrest for driving a motor vehicle afterward.
___________________________________________________________________
About the author:
Nathan Webb, is a seasoned Seattle DUI Lawyer. His practice emphasizes DUI defense. He has been repeatedly recognized as one of Seattle's Best Attorneys! He was recognized as a Top Seattle DUI Attorneys by Seattle Met Magazine, Repeatedly named a Super Lawyer Rising Star in the area of DUI Defense by Washington Law and Politics Magazine, and Rated Superb for DUI Defense (10.0 out of 10.0) by Avvo.com.
Subscribe to:
Posts (Atom)