Washington’s Marijuana Law — Sorting out the myths and facts

One of the many myths surrounding the passing of Initiative 502 was that for the first time, it became illegal to drive under the influence of marijuana. Truth is, it has always been illegal to drive under the influence of any intoxicating substance, whether that is alcohol, marijuana, cocaine, or any other prescribed or illegal drug. The method by which a marijuana DUI is investigated has not changed with the passage of I-502. The only true change to the law is how a person can be convicted.

Prior to the passage of I-502, the prosecution had to prove that the driver “was under the influence of, or affected by” the drug (in this case, cannabis). Washington’s new legislation still permits the prosecution to prove its case in that fashion, but the law has added another prong to the statute by which a conviction can be obtained. The only significant change to impaired driving laws is the creation of a “marijuana per se” impaired driving. This limit, set at 5ng/100ml of blood, provides the prosecution another way to prove an impaired driving case, similar to the .08 grams of alcohol that has become synonymous throughout this country as the “legal limit.” In reality, for both alcohol-based and marijuana-based DUIs, the prosecution can still obtain a conviction even if the person tests under the per se limit — if they can prove beyond a reasonable doubt that the individual was “affected to an appreciable degree,” regardless of what level is found in their breath and/or blood.

There are many similarities between an alcohol DUI and a marijuana DUI. However, there are also some differences. For instance, nearly all alcohol DUIs entail three standardized field sobriety tests, followed by a breath test, which is conducted post-arrest at a police station. Marijuana DUIs will start with the same three-test battery in the field, but following an arrest, the driver often undergoes a much more thorough medical examination by a specially trained officer, known as a drug recognition expert. This examination involves many quasi-medical procedures such as measuring blood pressure, taking a pulse, and examining the pupils under various lighting conditions. Since a breath test cannot detect marijuana, all marijuana DUIs will include a blood test.

The impact of I-502 on highway safety is yet unknown. One school of thought suggests marijuana use will significantly increase, leading to more impaired drivers on the roadway. Another school of thought is that the previous illegality of marijuana did not deter many users and therefore its recent decriminalization will not produce an influx of new users. To date, there has not been a significant increase in marijuana DUIs filed in King County, but it is too early to conclude this trend will remain the same.

I-502: Washington’s New Marijuana Law – Assess its Impact; Advise Your Clients CLE

Interested in issues related to marijuana law? These are just some of the topics that Dana Cashman and I will be discussing at the WSBA CLE “I-502: Washington’s New Marijuana Law – Assess its Impact; Advise Your Clients.” Join us April 10 at the WSBA CLE Conference Center in Seattle or via webcast.

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4.5 General Credits; 1.5 ethics Credits approved.

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