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!
Additional resources provided by the author
- State v. Martines: More Good Case law on Blood Tests Taken After DUI Arrests
- State v. McNeely: U.S. Supreme Court Says Blood Draws Require a Warrant
- How High Is Too High To Drive?
- More DUI Drivers Are Testing Positive for Marijuana
- The Brass Tacks Part II: Increased Penalties for DUI if Child Under 16 In Vehicle
- Missouri v. McNeely: US Supreme Court Decides Warrants Necessary For Blood Tests In DUI Cases
- Drug Recognition Experts: The Newly Trained Weapon In Detecting Drug DUI
- Are Washington’s New DUI Laws Unconstitutional?
- Toxicologist Says, “No Spike YET In Marijuana DUI Arrests”
- Supreme Court Wary of Warrantless Blood Tests in DUI Cases
- DOL Fees Increase for Those Challenging Their Driver’s License Suspensions Resulting From DUI Charges
- New DUI Law: Ignition Interlock Devices Now Take Pictures of Driver
- How Washington’s New Marijuana Law Affects DUI Investigations
- Washington State Patrol Upgrades Its DUI Breath Test Machines
- State v. Huffman: Crossing the Centerline = DUI Arrest
- Study: Marijuana & Alcohol Doubles Odds for DUI
- State v. Martines: WA Supreme Court Finds Defendant Guilty in DUI Blood Test Case
- New DUI Court Helps Native Americans
- New App Tried Reducing Drunk Driving Deaths
- States With Weird Liquor Laws
- Drugged Driving: A Growing Trend
- Harsher DUI Penalties Pass Washington House
- State v. Pearson: DUI Blood Draw Held Unlawful
- New WA Driver’s License Test Tackles Pot and Cellphone Risks
- Court Denies Prosecutor’s “Missing Witness” Jury Instruction in DUI Case
- State v. Sosa: Police Don’t Need to Inform DUI Offenders of Independent Blood Tests