Drug DUI’s in Washington: The Issues & Recent Case law

Following the recent passage of Washington Initiative 502 (I-502), it is now legal to possess marijuana in small amounts. Undeniably, this opens many legal issues for motorists suspected of Driving Under the Influence of Marijuana, typically called “Drug DUI,” “stoned driving” and/or “DUI-D.”

DRUG DUI’S: THE ISSUES

Since the passage of I-502, the issues surrounding the investigation and arrest of Drug DUI defendants have increased substantially. The case law is quickly developing around these new issues. For example, why did the officer initiate the pullover? Was the officer trained as a Drug Recognition Expert? What was the officer’s probable cause for arresting someone for Drug DUI? Was the citizen informed of the changed Implied Consent Law under I-502? What constitutes a Refusal? How did the officer obtain a warrant for a blood test? Does the warrant state with particularity the reasons for the blood test? Was the search warrant attached to the affidavit for the warrant? Did a licensed medical professional draw the blood? Can the Prosecutor establish the chain of custody showing who took the blood, who sealed it, and who tested it? Are these individuals available to testify? How does being charged with Drug DUI affect citizens who are licensed to smoke marijuana as these individuals would likely have elevated levels of THC in their blood? These issues, and more, significantly affect a defendant’s chances of being convicted. Fortunately, competent defense attorneys can comb the issues and seek the best possible route for getting a Drug DUI case reduced or dismissed.

WHAT ARE THE LEGAL LIMITS OF THC CONSUMPTION?

Under I-502, the legal limit for THC is 5.00 nanograms. This doesn’t sound like much – and in truth, it might not be. Marijuana lingers in people’s fat cells long after being ingested. Consequently, the Prosecutor must show ACTIVE marijuana THC nanograms, and not just resting/inactive nanograms. Typically, officers take two vials of blood: one which they send to the toxicology lab, and the other for “backup” in case the first vial is questionable. Consequently, it might be necessary to independently test the “backup” and observe whether the nanograms were active or inactive.

HOW DO OFFICERS GET PROOF OF DRUG DUI?

After transporting defendants to a hospital on suspicion of Drug DUI, police officers contact a judge and obtain search warrants for blood tests. The search warrants must particularly state the probable cause basis for the blood and also state reasons why the defendant’s blood should be tested. THC readings from blood tests are administered in hospitals by licensed medical staff professionals. Consequently, I-502 gives law enforcement officers more incentive to transport citizens to a hospital and seek a blood test if the officer suspects Drug DUI. Citizens refusing the blood test shall be charged with an upper level “Refusal” DUI for violating RCW 46.20.308, which is Washington’s Implied Consent Law. Worse, an officer now has discretion to immediately seek a warrant for a citizen’s blood. With warrant in hand, the officer may obtain a blood test from the citizen anyway, despite the citizen’s prior refusal.

WHAT ARE THE CONSEQUENCES OF REFUSING AN OFFICER’S ATTEMPTS TO DRAW YOUR BLOOD?

Under RCW 46.20.308, which is Washington’s Implied Consent statute, the citizen’s license, permit, or privilege to drive will be revoked or denied for at least one year. Refusal of the blood test is also admissible in a criminal trial. In the case of minors, I-502 imposes zero tolerance. For these reasons it is very important to consult a competent and qualified attorney in defendant against Drug DUI charges. Please review my case law reviews and other blogs on how Drug DUI’s are being handled in our courts today. Good luck!

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