Defending a Marijuana DUI in Washington
The legalization of marijuana use in Washington has created a new body of law for those charged with driving under the influence of marijuana. Practitioners of DUI defense law are faced with new defense opportunities, as well as obstacles, when dealing with defendants charged with a DUI for marijuan
The Marijuana DUI Under Washington LawInitiative 502's legalization of recreational marijuana in the State of Washington has quickly become a spotlight issue in both statewide and national forums, and the intricacies associated with the procedures and policies surrounding the law have been subject to popular discourse on many fronts. However, what is often overlooked in discussions pertaining to I-502 is the effect it has had Washington's "Driving Under the Influence" laws. While it has always been illegal to drive under the influence of marijuana in Washington, Initiative 502 has drastically altered the foundations of marijuana DUI defense, both for better and for worse it seems. Perhaps the most noteworthy amendment to RCW 46.61.502 (Washington's DUI statute for those 21 and over) has been its addition of a new per se THC limit of 5.00 nanograms per milliliter of blood within two hours of driving. Prior to the passage of I-502, in order for a defendant to be convicted of a marijuana DUI the State had to show that the defendant was actually "under the influence of" marijuana, a task that was often difficult for prosecutors as individual tolerance levels for THC can vary widely depending on many personal and circumstantial factors. However, with the addition of a per se limit this task becomes exponentially easier for a prosecutor as all that is required for conviction is a blood THC concentration equal to or above the legal limit, regardless of a defendant's actual level of impairment, if any. In this regard, a marijuana DUI has now become analogous to its alcohol DUI predecessor in that a heightened personal THC tolerance level is no longer a meritorious defense. As a result of the new per se limit, the vast majority of convictions for marijuana DUIs will likely result from THC readings over 5.00. However, it is important to keep in mind that this new limit has simply added a new weapon to the State's arsenal in prosecuting DUIs, and much like alcohol, a defendant can still be prosecuted for a THC reading under the 5.00 legal limit if the State can show that that a defendant was "under the influence of" (or as it is frequently referred to, "appreciably affected by") marijuana. While these substantive amendments to the law are important to flesh out, the underlying questions on many citizens' minds remains; "How is THC measured? What is the arrest process? And what are my possible defenses to a marijuana DUI?" First and foremost, the per se THC limit is assessed based on the level of active THC in one's body. There are two primary types of THC that can be measured; active THC and metabolized or "Carboxy" THC. Both of these measurements will appear in the blood sample analysis, but the two can be differentiated from one another and only active THC will be taken into account for DUI toxicology purposes. In other words, you can only be convicted if you have active THC in your system at the time of a blood test. However, the process by which active THC is absorbed and then metabolized into Carboxy THC can be highly unpredictable, and in this regard, the marijuana DUI can differ significantly from an alcohol DUI. This is due to the fact that alcohol is soluble in water, producing relatively stable dissipation rates in the body, whereas marijuana is soluble in fat, which can alter dissipation rates drastically depending on the circumstances. And while THC is typically absorbed into the bloodstream within 10 to 30 minutes and symptoms persist for an average of 2 to 3 hours, these time frames should be contextualized in relation to several factors, including; the THC potency of the marijuana, whether the marijuana was smoked or ingested orally, the fat content present in the body/bloodstream at the time of use, and one's personal tolerance as a result of frequent marijuana usage. All of these factors may have an effect on the duration of THC's impairing effects as well as its absorption and dissipation rates in the body. As a result of these widely variable durations of impairment, some new defenses have the potential to be effective. For one, RCW 46.20.502(1)(b) requires the THC measurement to be obtained within two hours of driving. And while test results procured after this two hour window can be used as evidence against you, these test results must be observed entirely at their face value as the prosecution cannot engage in the common practice of "retrograde extrapolation." What this means is that a defendant has the potential to argue that a THC concentration outside of two hours was actually higher than the THC concentration within two hours due to an unusually slow absorption rate. However, this defense will likely be limited to cases in which marijuana was consumed orally as marijuana ingested through smoking is fully absorbed at a much more rapid rate. Further, this defense will only have success under unusual circumstances as marijuana is typically absorbed in its entirety within approximately 30 minutes. Regardless of its somewhat narrow applicability, this strategy has the potential for effectiveness and a defendant's circumstances should be researched to further develop this tactic. While the variable duration of THC's effects may serve as a gateway to new defenses, the physical manifestation of the effects themselves may also present promising alternative defense strategies. First, in a somewhat tangential but valuable note, officers and prosecutors alike seem to frequently cite to the fact that a defendant's "green" tongue or mouth cavity was observed during contact. However, there appears to be no scientific evidence or case law to support the fact that a green tongue is indicative of marijuana use, and the counsel for the defense should be quick to refute the evidentiary value of any green tongue notations. Clearly, there are many common substances, such as gum, candy or mints, that could account for a green tongue or mouth cavity. Further, while marijuana and alcohol do display some similar effects (slowed reaction times, watery eyes etc.), the symptoms can differ in many respects. To support the notion of the divergent physical effects, several recent studies have shown that the traditional "Big Three" field sobriety tests are significantly less effective in detecting impairment related to marijuana. These studies have found that after marijuana consumption the Horizontal Gaze Nystagmus (HGN) test was only about 31% effective in detecting marijuana impairment. The HGN had no vertical or horizontal nystagmus present, and the only possible cues of marijuana impairment may be a lack of pupil convergence and the presence of dilated pupils. Moreover, these studies found similar problems associated with the Walk and Turn test and the One-Legged Stand test, where detection rates were also questionable. Overall, the academic trend in research seems to support the conception that the success of traditional field sobriety tests does not systematically converge between alcohol and marijuana, and addressing the inefficiency of these three basic tests may be a worthy strategy for defense. And while specialized field sobriety tests continue to emerge (i.e. the lack of convergence test and the Romberg balance test), the objective effectiveness and grading criteria for these specialized tests remains relatively unchecked, and an officer's reliance on these tests should be examined by the defense with elevated scrutiny. So let's say an officer has done sobriety tests and placed a defendant under arrest, what is the next step in the process? In a recent United States Supreme Court decision in Missouri v. McNeely, 133 S. Ct. 1552 (2013) the court ruled that without exigent circumstances a law enforcement officer must either have the defendant's consent or obtain a search warrant to lawfully procure a blood sample. Under the new McNeely standard, it would seem prudent for a defendant to always refuse consent and force law enforcement to gain a search warrant. This will extend the length of the blood draw process and will likely facilitate increased THC dissipation in one's system prior to the blood draw. It may also provide the opportunity for a judge to override an officer's declaration of probable cause and thus cease the blood draw process altogether. Under the current state of the law, a defendant appears to only benefit from asserting their constitutional right to refuse consent to the blood draw. McNeely has also had a significant impact on the Department of Licensing DUI administrative process. Under Washington's Implied Consent Law (RCW 46.20.308) a person's license will be suspended if after being informed of their implied consent statutory rights that person either tested above the legal limit or refused the evidentiary blood/breath test. Essentially, the mandated statutory readings inform a driver that they can refuse the test, but if they do, their license will be suspended for one year. However, under the new McNeely standard a person has a constitutional right to refuse consent to a blood draw, and the threatening of a license suspension undermines this right by creating a coerced consent. For this reason, law enforcement has ceased the recitation of the Implied Consent Warning for Blood, and for the time being, has effectively done away with the administrative license suspension process for marijuana DUIs. And while the "Special Evidence Warning" and "Voluntary Blood Draw Consent Form" read to some subjects does provide an opportunity for a person to refuse or consent to a blood draw, these forms fail to inform drivers of the administrative licensing consequences under the implied consent statute, and are thus not a viable alternative gateways to the administrative process. Put simply, as the law currently stands it appears that without a reconciliation of the Implied Consent Statute (which serves as a gateway to the administrative hearing process) and McNeely's warrant requirements, the Department of Licensing suspension process for marijuana DUIs is simply not functional, and up until this point administrative license suspensions have not been pursued. However, it is important for drivers to note that criminal sanctions on one's license can still be imposed for a marijuana DUI even without the Department's administrative process. Further, a driver must also note that under the current standards the administrative license suspension process is still in place for alcohol DUI subjects, and those who are faced with the decision of whether or not to provide a Breathalyzer sample should be aware of the administrative consequences. In closing, I-502 has had a substantial impact on Washington's "Driving Under the Influence" laws and has created a unique niche in both DUI defense and prosecution. Under the new law, many of the defense strategies in regards to the new marijuana DUI laws remain unchanged from those of its alcohol DUI predecessor; defense counsel can still challenge the validity of a stop, field sobriety tests, search warrants, the propriety of toxicology procedures, and issues of the like. But as the subtleties surrounding marijuana and its relation to the DUI defense profession continue to emerge, it is evident that I-502 has created gateway to many new potential marijuana DUI defenses whilst simultaneously slamming the door on many others.
About The AuthorAndrew Wheeler is a Vancouver Washington attorney who focuses his practice in the area of DUI defense