Marijuana DUI Charges in Washington State

What is a marijuana DUI?: Under RCW 46.61.502, “a person is guilty of driving while under the influence of intoxicating liquor or any drug if the person drives a vehicle within [Washington State];” and the person has BAC of 0.08% or higher; OR the person is under the influence of alcohol or any drug; or the person is under the combined influence of alcohol and any drug.

When is someone “under the influence” of marijuana?: The legal answer is that under the influence means that a person’s driving is impaired “to an appreciable degree” by the use of marijuana. The practical answer is that this is very hard to prove without high-levels of THC or very poor driving.

How much THC is too much?: What makes marijuana DUIs difficult for both prosecutors and defense attorneys is that there is no “legal limit” like there is for alcohol. For alcohol, if your BAC is above .08% you are, by law, too impaired. If less than .08% you are assumed to be okay to drive and the prosecutor must prove you are too impaired. In marijuana, no such level has been set for the amount of active THC in your blood and the burden is always on the prosecution to prove you ingested too much marijuana to drive. On the other hand, the assumption of many jurors is that any amount is too much as marijuana is illegal to use for most people. Part of your marijuana DUI attorney’s job is to educate the prosecutor, judge and jury about THC levels. Everyone is made differently and everyone is affected differently by the use of marijuana.

During the 2011 legislative session in Washington there was a lot of discussion about setting a “per se” legal limit for THC. Thus, a person with a blood THC above a certain level would be presumed by law to be too impaired to drive. Ultimately, there was no consensus on what was an appropriately level and the issue was tabled for future discussion. Colorado recently passed legislation setting a 5ng/ml limit for active THC in the blood. Several other states have passed similar laws. The issue of setting a legal limit for marijuana DUI charges will resurface in Washington and law enforcement, MADD and others will once again be lobbying strenuously for its implementation.

The problem with legal limits for marijuana is there is no way for a person to really know what level of consumption will put them above the limit. Any limit would be arbitrary as everyone is effected differently based on individual physiology.

What about the use of Medical Marijuana, can I still be charged with a marijuana DUI?: The valid use of medical marijuana does not protect you from prosecution for DUI. The law makes no distinction between legal and illegal drugs and a person can be convicted of DUI even if he or she is taking only prescriptions drugs, even if taking them exactly as prescribed.

How does the prosecutor prove a marijuana DUI?: Of course the old-fashioned methods of proving a DUI always come into play. Bad driving, admission to smoking, odd behavior, appearing “high” and other observations by the officer often offered as evidence against the marijuana DUI driver. Because these are often ineffective law enforcement has invented a couple of “scientific” tools to use against suspected marijuana DUI drivers in court. The first is the roadside sobriety tests given in alcohol cases. I have yet to see an officer and prosecutor that has not tried to use the results of your roadside coordination tests (if you are unfortunate enough to have agreed to take these tests) in marijuana DUI cases. Most people, including police officer and judges believe these tests were designed to measure your ability to drive. It is important for your attorney to be able to educate the court that the National Highway Traffic Safety Administration (NHTSA) Standardized Field Sobriety Tests (SFST) have never undergone any study to show whether there is any correlation between test results and ability to drive. The SFSTs were designed to determine if a driver was likely above a .08% alcohol level and nothing more. Thus, the use of the roadside tests is inappropriate in marijuana DUI cases. You need an attorney that fully understands theses issues in order to provide you with the best defense to your marijuana DUI as possible.

The other “scientific evidence” most commonly used in marijuana DUI cases is the Drug Recognition Examination (DRE). This battery of exams, like the roadside exams, was also developed by NHTSA. A DRE can only be conducted by a NHTSA certified Drug Recognition Expert (for the sake of confusion, also known as a “DRE”). DRE exams are commonly conducted in places where this is a large number of certified DRE “experts” like Lynnwood, Edmonds, Monroe, Everett, Seattle and by Washington State Patrol throughout Snohomish County. DRE examinations are readily accepted in courts as scientific evidence. However, there is not a single study, conducted by anyone other than the law enforcement agency that developed the tests, to determine whether there is any validity to their results. In short, police designed them, police decided they were scientifically valid, and no one has bothered to question or check their science.

In marijuana DUI, the results of a DRE are even more questionable than in other drug cases. A DRE is a battery of 12 steps of tests designed to determine what type of substance you are under the influence of. The officer measures things like pupil size, reaction to light, pulse, blood pressure, body temperature, sense of time, and coordination. The dirty secret with these tests is you can’t pass. The assumption of the test is you are high on drugs and they just need to figure out which one. For example, if you have high blood pressure, fast pulse, pinned pupils and high temperature you may be high on methamphetamine. If you have low blood pressure, slow pulse, dilated pupils and low temperature you may be suffering the “rebound effect” from being high on methamphetamine. However, if all your vitals are normal this indicates your are high on marijuana (because the assumption is you couldn’t possibly just be normal). As you can see it is important to have an marijuana DUI attorney that understands these can often educate the prosecutors, judges and jurors of the problems with DRE examinations.

I don’t feel “high,” should I just agree to take the officer’s tests?: NO! The roadside tests and the drug recognition examination are voluntary test and you should never agree to them. Like a lie detector test they are designed for prosecutors to use as evidence of your guilt, not for you to use as evidence of your innocence. There is never any benefit to taking these tests. Never agree to take a voluntary test by a law enforcement officer without first talking to your attorney.

What about the blood test, should I take that?: The answer is less clear than above. You may be required by law to submit to a blood test if requested by the officer. If you refuse a blood test, when lawfully requested by an officer, you face a minimum one year license suspension by Washington DOL and the courts. Always ask to speak to an attorney to help you decide whether or not to submit to the test.

Why I like to defend marijuana DUIs: Having attended the University of Oregon School of Law in Eugene, Oregon I have a seen my fair share of marijuana DUI cases. For those of you that don’t know, Eugene is one of the last safe havens for hippies and marijuana DUI charges are nearly as common as alcohol DUIs. Working for the Lane County Public Defender Association in the DUI Defense clinic I was able to tackle marijuana DUI cases on a regular basis. In my experience there are a lot more potential issues for a defense attorney to argue than any other type of misdemeanor case.