bigstock-Law-And-Marijuana-39943444 copyWhen Washington voters passed Initiative-502 in to law in November 2012, they ensured that no adult 21 years or older would be arrested for having up to an ounce of marijuana on them, or comparable amounts of marijuana-infused products like “special brownies.” What they also passed were strict changes to Washington DUI laws.

Drivers suspected of driving while high on marijuana can be and are subjected to blood-tests to determine the amount of THC in their system.

Every person who drives on a road in Washington, by state law, has given their “implied consent” to breath and blood tests if an officer has reasonable grounds to believe they are or were driving under the influence. This means that if a police officer thinks you are under the influence of marijuana, they are allowed to pierce your skin to access your blood in order to use it against you in court. To many people, the thought of someone having the authority to carry out such a task based on their suspicions can seem troubling.

In Washington a driver can be considered “under the influence” if they have an active blood-THC concentration of 5 ng/mL or higher. For drivers under 21 the limit is set at 0 ng/mL. Respectively for alcohol, drivers 21 and older are considered impaired if they have a blood or breath alcohol concentration of 0.08 or higher, and for the underage the limit is 0.02 BAC.

Washington DUI laws recognize the 0.08 BAC as a “per se” limit, meaning that no matter how impaired a driver seems or acts, a 0.08 BAC or higher is automatically considered DUI. The same restrictions are being applied to blood-THC levels.  If a driver’s blood tests 5 ng/mL or more for THC, that driver is under the influence.

Many opponents of I-502 were opposed to it based on the 5 ng/mL DUI restriction, which they say does not accurately measure impairment. Many proponents argued that the initiative needed to address stoned driving in order to legitimately and safely regulate legal marijuana.

Though scientific research suggests that drivers with THC-blood content above 5 ng/mL are at higher risk of being in a car accident, the limit is not a concrete determination of impairment. The National Highway Traffic Safety Administration stated in a 2004 report that “it is inadvisable to try and predict effects based on blood THC concentrations alone.”

New Approach Washington, the organization backing YES on I-502, provides facts on their website about the DUI portion of the new law and the research that lead them to set the limit. Even the research they used shows that THC can remain in significant quantities in the blood of frequent pot smokers overnight and even longer. That does not bode well for someone who smoked pot before bed then drove to work in the morning, as any THC whatsoever in their bloodstream would automatically incriminate them for DUI.

Interestingly, the research New Approach WA provides on their website indicates that drivers with no THC whatsoever in their blood are more likely to be involved in accidents than drivers with 4 ng/mL of THC in their blood.

Colorado, the only other U.S. state to legalize recreational marijuana, did not include any driving-limit to blood THC content in their Amendment 64. In fact, their state legislature tried unsuccessfully five times to pass stoned driving laws similar to those in Washington. Only in May 2013, on their sixth try, were they able to pass such a law.

While Colorado also set a 5 ng/mL limit, their law (House Bill 1325) has a very significant difference from Washington’s. Instead of setting a “per se” limit like Washington, where drivers exceeding the limit are presumed guilty, Colorado set a “permissible inference” limit where a blood-test exceeding 5 ng/mL THC can be used as evidence against a driver but does not infer guilt, allowing a defendant to argue they were not impaired.

In April 2013 the Supreme Court of the United States ruled in Missouri v. McNeely that the state of Missouri had violated Tyler McNeely’s Fourth Amendment rights against unlawful search and seizure after a stop for Driving While Intoxicated. He first failed a series of field sobriety tests, and then refused a Breathalyzer test. When taken to a medical facility for a blood draw, he again refused. The officer instructed a nurse to take his blood sample anyways without securing a search warrant, justifying his actions by saying the evidence of DWI was disappearing while his body processed the alcohol.

The Supreme Court found that the officer had no exigent circumstances (basically an urgent or pressing reason), to execute the blood test without a search warrant. The Court’s opinion, written by Justice Sotomayor, stated “that in drunk-driving investigations, the natural dissipation of alcohol in the bloodstream does not constitute an exigency in every case sufficient to justify conducting a blood test without a warrant.”

While the drug in question in the decision was alcohol, Washingtonians can infer that other legal recreational drugs, like marijuana, fall into the same category and are subject to the same rules.

Generally in Washington, blood tests can never be forced upon a driver unless they have been in accident that hurt or killed someone, if the driver themselves is unconscious or dead, or if they are under arrest for felony DUI (often resulting from prior violations). Breath tests can be forced if a search warrant provides permission. (RCW 46.20.308). Although a driver might be able to refuse a blood test, they will automatically lose their driver’s license for a year, no matter what level of sobriety they are at.

Driving while intoxicated, no matter by what intoxicant, is a bad idea. If you have questions about this or anything else, you can contact our office at 206-285-1743.

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