New Marijuana Law Legalizes But Also Criminalizes.

New Marijuana Law Legalizes But Also Criminalizes.

The New Approach to marijuana use has begun, and December 6, 2012 is the commencement of the legalization of one behavior and the criminalization of another.  Specifically, there is a brand new approach to the previously non-existent drug limit in terms of DUI.  The new law creates a threshold limit for DUI-Drugs, specifically Marijuana.  The concept of DUI by way of drugs is nothing new in the DUI world, but, now there is a THC threshold limit. However, this new...


The New Approach to marijuana use has begun, and December 6, 2012 is the commencement of the legalization of one behavior and the criminalization of another.  Specifically, there is a brand new approach to the previously non-existent drug limit in terms of DUI.  The new law creates a threshold limit for DUI-Drugs, specifically Marijuana.  The concept of DUI by way of drugs is nothing new in the DUI world, but, now there is a THC threshold limit. However, this new limit, is not a limit set due to impairment, but a limit set of convenience.  This new DUI-D law takes effect December 6, 2012 along with the rest of the act.

Of course the police are worried about stoned driving, they have always been worried about some form of “drugged driving” as evidenced by their A.R.I.D.E and DRE training, to police and enforce the impaired driving law.  The legalization of Marijuana will not make them any more, or any less worried, as legalizing is pot is more likely to created stoned driving than issuance of a prescription for Vicodin, Oxycontin, or Ritalin for that matter, because they are all legal when prescribed but there is no frenzy with respect to DUI.  However, unlike the THC scenario, the new law does provide a powerful tool to search a driver’s blood for THC: Implied Consent.

Implied Consent

RCW 46.20.308 is the Implied Consent Statute and it now has new language incorporated married to it to simply piggy back on the DUI alcohol statue.  Even before this amended law, I am surprised at just how many drivers, were not, and still are NOT aware of this VERY important statute. The new amendment, has made a powerful law even more so, but more importantly it is 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.  The THC collateral CDL consequences are the same for alcohol even in a personal vehicle.

Implied consent means that a driver, of any state, driving in Washington has entered into an “implied” agreement with the State.  The agreement is that if a police office believes that he has probable cause to arrest you for any crime, and during that arrest, or after, the officer believes you to be under the influence of alcohol, or pot (but realistically if there is probable cause to be believe that a driver is impaired by anything legal or illegal such as inhalants, prescription medication), the Department Of Licensing (DoL) will take action against a driver and their license BEFORE any court action.  Previously there was no such action for drugs found in the blood as there was no limit.  The new approach has changed all that as this statute now applies equally to Alcohol and THC levels of 5.00 nanograms for drivers 21 or older but zero tolerance for the under 21 driver.  It was created first for the .08 BAC laws, but has now incorporated THC levels and identical consequences as alcohol.

The statute states:

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.

In English, this means that you have agreed to give a sample of breath or blood if stopped and arrested for DUI or DUI-D, but you are reminded that that you are permitted to withdraw this previously given consent.  However, a refusal of this request you have previously agreed to by way of implied consent, the  officer can quickly apply for an obtain a warrant from a Judge.  A warrant to draw and then search your blood will override your refusal that you were reminded of.  Ultimately, with a warrant in hand, you WILL produce a sample, with, or without your cooperation.

Further consequences of a refusal are:

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.

It is no wonder driver’s think that they are “damned it they do, and damned if they don’t,” because if they do:

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.

So, while there is a alcohol limit and a threshold of .02 for Minor drivers (.02 BAC) and likewise there is also a threshold limit for alcohol and THC for adults (.08 BAC for alcohol and 5.00 ng for THC), there is no limit for minors and pot.  Instead there is ZERO TOLERANCE.

In an effort to stay on track, consider the mandatory DoL consequences (before any crime is proven):

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.

But what if a blood sample is 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 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.

This is just the changes to the Implied Consent Law.  In a recent news story the problems and challenges of enforcement were highlighted.

It is unclear how much marijuana one could smoke before reaching the 5 nanogram level.  Jackalyn Veltkamp said medical marijuana is her solution to a barrage of health problems, including multiple sclerosis and insomnia. “I use it every night and it (THC) keeps stacking up and stacking up” in the body, said Veltkamp. If Veltkamp were to be tested on any given day, she said, her THC level would be in the thousands of nanograms. “One or two puffs, anybody would be over 5 nanograms,” Veltkamp said. One nanogram equals one-billionth of a gram. California’s pro-marijuana NORML organization said, “In the case of smoked marijuana, THC peaks rapidly in the first few minutes after inhaling, often to levels above 100 ng/ml in blood plasma. It then declines quickly to single-digit levels within an hour. THC can remain at low but detectable levels of 1-2 ng/ml for 8 hours or more without any measurable signs of impairment in one-time users. “In chronic users,” it said, “detectable amounts of blood THC can persist for days. In one study of chronic users, residual THC was detected for 24 to 48 hours or longer at levels of 0.5 – 3.2 ng/ml in whole blood.”  Washington state Rep. Roger Goodman, D-Kirkland, who has led the way for stronger laws on drunken driving, said he has heard about the concerns “as to how reliable this 5 nanogram is. There is not much science behind it so I’m expecting challenges in the future.

For a full review of the impact of the legalization of pot visit my Marijuana DUI page dedicated to DUI-D, along with my various podcast on the subject.  Regardless of the changes in the law, DUI-D charges are defensible, and winnable cases.  What it takes, however, is exposing the scientific shortcuts in analyses, as well as searching for an finding possible errors along the way from the moment an arrest is made up to and including the moment the chromatogram is printed showing the blood test results. Discovering and exposing these errors can only be done by the the most well-trained DUI Defense lawyer.  Exposing these errors can be found on my May 20,2012 podcast.  Whether the charge of DUI be alcohol based, drug based, or any substance, every successful DUI defense requires the most experienced, dedicated, and knowledge DUI Defense Lawyer or Attorney at your side.