"Man, I wasn't even THAT drunk..." a potential client laments during his initial DUI consultation. I haven't heard this statement in almost a year, but every time I do it sends me into an explanation of what a "per se" DUI is, and how it all boils down to a numbers game for the state. In Washington a "per se" DUI is the result of two breath samples into the Datamaster machine within 2 hours of driving. This machine can only test for alcohol; marijuana or THC levels are not detected by its processor. Both samples have to produce a blood alcohol reading of over .08 for the Prosecution to proceed under the "per se" prong of the DUI statute (RCW 46.61.502(1)(a)). Once a client finds him or herself under the per se prong they are just a “number"... more specifically a breath test reading. There are no questions about “how drunk did you feel?" there is only that number, .08 or above, that matters to the State.
Criminal prosecution under the "per se" prong almost wholly relies on an individual's blood alcohol level and rarely focuses on good field sobriety test performance, nearly error-free driving, or otherwise coherent and cooperative behavior. It is a process driven by a NUMBER, and that number is ingrained during trial into a jury's mind by any competent prosecutor, "Yes Mr. Doe didn't slur his words... but his blood alcohol level was over .08 within 2 hours of driving", "Yes Mr. Doe passed the Walk and Turn test...but his blood alcohol level was over .08 within 2 hours of driving", "yes..." (OK, you get my point).
The "per se" DUI client, by virtue of his or her BAC results additionally is subject to an Administrative Hearing before the Washington Department of Licensing (DOL). This hearing is based on the Implied Consent Statute, specifically RCW 46.20.308(8). The threshold required to suddenly face the wrath of the DOL is additionally any two breath tests with readings of over .08 (there is no "two hour rule") to trigger this proceeding. The administrative portion of the case (in most situations) carries similar penalties to the criminal prosecution (loss of driving privilege, the requirement of an Ignition Interlock Device, and SR-22 high risk insurance). It’s a two-strike approach for those charged with DUI in Washington, you could have your DUI criminal case dismissed or won at trial, and still lose your driver’s license at the DOL hearing.
Until December 6, 2012 the one hold-out "Old West" style of DUI defense was the "DUI Drugs" charge. Here, a battle still took place as both sides tried to prove or disprove whether the driver was actually "affected by" (under RCW 46.61.502(1)(b)) the drugs alone or a combination of alcohol and drugs (under RCW 46.61.502(1)(c)). There was no “number" spit out by a Datamaster machine for the prosecution to rely on to win their case, they had to prove the driver was affected by the drug usage. This "affected by" determination was ultimately a question for the jury based on factors which included the results of a blood draw, the observed driving, field sobriety tests, occasionally including the testimony of a DRE (Drug Recognition Expert), but most commonly a technician from the State Toxicology Lab (who had never laid eyes on the client) trying to explain how a "normal" or "average" person would have been hypothetically affected by the specific concentration of a given drug or combination of alcohol and drug found following the client's blood being drawn. A person, even one who admitted to using drugs like marijuana prior to driving, could very well have avoided punishment because just “using" was not enough, the State had to prove that their driving was negatively affected by that drug usage. These State "experts" could not intelligently discuss the specific tolerance the client might have, how the specific client's body metabolizes the chemicals in question, or whether any factors outside of what was in the client's blood (illness, lack of sleep, etc.) may have resulted in the false conclusion the client was "affected by" drugs or a combination of drugs and alcohol.
This month, Washingtonians are living in a new reality with the passage of the first decriminalizaton of marijuana possession in the country, and the "Old West" battle for a DUI-Drugs conviction based on Marijuana has now become a thing of the past. Today Washington has a "per se" Marijuana DUI law on the books as well. Now a blood draw resulting in a driver having a THC blood content of 5 nanograms per milliliter (5 ng/mL) is deemed to be "impaired" and thus any questioning regarding tolerance, field sobriety tests performance, recency of use, or lack of "bad" driving becomes more defense parlor tricks as the State hammers away on the blood draw results. Like alcohol, there is now a cold, objective standard that relies on a number; and this isn’t good news for those charged with DUI-Drugs now that marijuana legalization has arrived. Drivers who use marijuana now may, paradoxically, be in greater legal danger than before the new marijuana legislation was passed.
The creation of a per se standard for marijuana DUI charges will likely also bring the DOL into the fray, along with the Administrative Hearing process for accused drivers. This means that, like alcohol-related DUIs, those faced with DUI-Drugs charges face two possible ways to lose their license now. Prior to December 6, 2012 the DOL avoided drug charges as the officer's police reports are deemed to contain the totality of the state's evidence. Formerly, absent the state's ability to call a toxicologist (whose report was not part of the administrative record, or submitted by the officer) evidence demonstrating the driver was "affected by" was impossible, it was a completely subjective opinion. Now, with a per se standard it is highly likely the DOL will treat marijuana DUI charges identical to those with an alcohol reading. Over the numeric limit, and you are charged. This will subject the accused driver to the risk of license suspension, the requirement for ignition interlock and SR-22 insurance on both the criminal and civil side of the case. "Wait", you say, "isn't ignition interlock designed to measure alcohol alone?" The answer is "yes" however recent amendments have provided those convicted of DUI-Drugs with the sole remedy of the Ignition Interlock License (IIL) if they choose to drive. As a result a driver convicted of a marijuana-based DUI drugs would potentially be subject to operating his or her vehicle equipped with an interlock device that is used to measure alcohol. This might not make sense at first, but until the statute is updated to reflect the inherent differences between alcohol and marijuana usage and presence in the body, even driver’s who have never drank alcohol and drove may be faced with getting an IIL device installed in their car.
The moral of the the new marijuana legislation may very well be “Be careful what you wish for." Prior to the legalization of possession of small amounts of marijuana, the number of DUI-Drugs charges brought against Washington drivers was relatively small. The standard of proving that a driver’s ability to drive their vehicle was “impaired" was a difficult one to prove. Now that a completely objective .05 ng/mL standard is on the books, and with more officers being trained in enforcement procedures as a result of marijuana legalization, it is very likely that the average recreational drug user faces a greater danger of losing their license for a DUI than even before Initiative 502 made marijuana legal in Washington.
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