Marijuana DUI Laws – Explained

As of December 1, 2012, people in the state of Washington are allowed to possess up to 1oz of marijuana for personal use. In addition, the new law set a “per se,” or maximum, threshold THC level that drivers cannot exceed while driving.  As stated in the law, A person is guilty of driving while under the influence of intoxicating liquor, marijuana, or any drug if the person drives a vehicle within this state:

  1. And the person has, within two hours after driving, an alcohol concentration of 0.08 or higher as shown by analysis of the person’s breath or blood made under RCW46.61.506; or
  2. The person has, within two hours after driving, a THC concentration of 5.00 or higher as shown by analysis of the person’s blood made under RCW 46.61.506; or
  3. While the person is under the influence of or affected by intoxicating liquor, marijuana, or any drug; or
  4. While the person is under the combined influence of or affected by intoxicating liquor, marijuana, and any drug.

The Impact of Marijuana Legalization on State DUI Laws

With recent testing being done by neighboring Colorado law enforcement professionals, Washington state troopers have even more reason to consider similar technology designed to keep drivers who are high on marijuana off the road. Watch video about current detection developments here.

Currently, state officers use nothing more than job-related skills and standard field sobriety tests to “detect” marijuana and other drugs on individuals suspected of driving under the influence. No actual device for detecting pot exists at this time (despite nationwide efforts currently underway by state officials across the country).

In Washington, it’s the Marijuana Breathalyzer developed by Washington State University; in Colorado, it’s the Nasal Ranger (an olfactometer designed to identify strong marijuana odors among users); in other jurisdictions, it’s saliva detection.

States across the country are fervently identifying, developing, and testing new methods of marijuana detection; however, a standard device with proven results has yet to surface. According to Lt. Rob Sharpe of the Washington State Patrol (WSP), all types of methods are being considered: “Whether it’s measuring THC on the breath or in the saliva, some are looking at transdermal applications, so just measuring off of sweat from the body.”

An impaired driving section commander at the WSP, Sharpe is personally invested in the detection efforts currently underway – but he’s not ready to commit to any one method just yet: “If we’re going to adopt something in Washington, we want to make sure it’s very reliable and doesn’t suffer from false positives or false negatives that could occur.”

With marijuana detection testing on the rise, recreational and medicinal users alike should take extra precaution. While an official device has not yet been developed, regulating marijuana DUIs is at the forefront of efforts being made by Washington law enforcement officers. In fact, the WSP has employed a full-time librarian to collect studies from around the world pertaining to testing machines that might be useful to state troopers.

If you were recently arrested for driving under the influence of marijuana, do not wait to align yourself with a Washington DUI defense lawyer. Only with proven defense on your side can you actively fight the charges made against you. At Callahan Law, our DUI defense methods are proven – and we have countless successful results to back them. Contact us today to see how we can help.

What is Washingtons Legal Limit for Marijuana?

5 Nanograms Per Milliliter of Blood

Before the passage of I-502 which legalized marijuana, Washington had a zero-tolerance policy regarding driving under the influence of marijuana’s active ingredient, delta-9 tetrahydrocannabinol (THC), which many believe impairs driving ability. Prior to the law’s effective date of December 1, 2013, any level of THC in a driver’s blood was prohibited. Furthermore, drivers under the age of 21 were prohibited from having any active THC in their blood. Now, drivers 21 or older are permitted a very low amount of the active THC in their blood—up to 5 ng (nanograms) per milliliter of blood. Driving under the influence of more than 5 ng per milliliter of blood is punishable by law.

There is much controversy over whether any particular driver will be impaired by 5 ng of delta-9 THC. Even the National Highway Traffic Safety Administration (NHTSA) has published materials that cast doubt upon the fairness of establishing a bright line “per se” level of impairment. In their 2004 publication Drugs and Human Performance Fact Sheets, the authors state that it is “difficult to establish a relationship between a person’s THC blood or plasma concentration and [driving] performance impairing effects. . . .concentrations of the parent drug [marijuana] and the metabolite [delta-9 THC] are very dependent on patterns of use as well as dose.” Thus, they conclude that “it is inadvisable to try and predict effects based on blood THC concentrations alone, and currently impossible to predict specific effects based on THC-COOH [inactive THC metabolite] concentrations.”

The reason for this is that people become tolerant to any drug, including THC, after time. Thus, an individual may have a seemingly high level of THC in their blood, but not be too impaired to drive. In fact, in 1983, NHTSA publishedMarijuana and Actual Driving Performance, where they concluded, “THC’s adverse effects on driving performance appear relatively small.”

Everyone reacts to marijuana differently. If the driver in question did not drive in an impaired manner, the jury can reject a prosecutor’s case and find the driver not guilty.

Under 5ng/ml and the “Affected By” Element of Marijuana DUI Laws

It is a common mistake to believe that if your breath or blood alcohol concentration (BAC) is under 0.08 percent, or below the new 5 ng/ml limit for THC, you cannot be convicted of a DUI. This is incorrect. The 0.08 and 5 ng/ml limits allow, but do not require, the jury to presume you are impaired at those levels or higher, regardless of whether the driver was actually impaired. But even when a driver is under those limits, they may still be convicted of a DUI under the “affected by” element if the prosecutor can prove that less than 5ng of THC caused the suspect’s ability to drive to be impaired to any appreciable degree. This means that if you are in an accident or are pulled over for driving erratically, you may still be convicted of a DUI while under the legal limits because the jury may conclude that even a negligible amount of THC impaired your driving.

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