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IMPAIRED DRIVING UPDATE Washington Traffic Safety Resource Prosecutors
Issue 10 December 2012
THE GREEN ISSUE
There’s no longer any doubt that marijuana is here to stay in
Washington. Initiative 502 went into effect on December 6th,
2012, pairing Washington and Colorado as the two states to
legalize the use of marijuana. Although we’ve battled
marijuana impaired drivers for decades in Washington State,
and have thousands of officers trained and equipped to
detect all manner of impaired drivers, there is still work to be
done to prepare for the changes I-502 will bring across our
state. That said, remember that as to impaired driving, very
little has actually changed from longstanding practices.
This issue of the TSRP newsletter will address some of the
most common questions you may have as we enter this new
era. Also note the list of upcoming Marijuana DUI trainings
presented by the TSRP and DRE Programs – coming to a
jurisdiction near you in early 2013.
this issue
Initiative 502 Summary Pg. 2 The importance of THC Hour 1 Pg.3
THC and Alcohol Pg. 3 Court Rejects attack on DUI in 502 Pg. 4
Estimated Duration of MJ Pg. 4 TSRP Shout Out Pg. 5
Frequently Asked Questions Pg.6 Marijuana and SFSTs Pg. 7
Marijuana Training Locations Pg. 9 DUI Stop vs. Pretext Stop? Pg. 10
Or at least your sanity!
INITIATIVE-502 FACT SHEET from CJTC
IMPAIRED DRIVING
Creates Per Se DUI/Physical Control for Marijuana: 5 nanograms or more THC
o “Affected by” prong still available for marijuana (and alcohol and/or any drug)
Creates an affirmative defense to a per se DUI by THC that the driver consumed MJ after the
driving but before the chemical test was administered.
Adds a zero tolerance per se (0.0 ng THC) for Minor Operating after Consuming
Creates civil (license) penalties for drivers who violate the per se limits or who refuse blood
testing for THC
POSSESSION & MANUFACTURE
Possession Laws Affecting Persons OVER 21 in WA:
o Possession of one ounce or less of marijuana is no longer a crime
o Possession of 16 oz of marijuana-infused product in solid form or 72 oz of marijuana-
infused product in liquid form is no longer a crime.
o Illegal to possess both types of products at the same time.
o Possessing between 28.3 and 40 grams of MJ is still a misdemeanor.
o Possessing over 40 grams of MJ is still a class C felony.
Possession Laws Affecting Persons UNDER 21 in WA:
o Possession any amount of marijuana is still a crime.
Paraphernalia: possession, use and sale of MJ-related paraphernalia is no longer a crime or
civil infraction.
Public display or consumption of MJ or MJ-infused product in view of the general public is a
class 3 civil infraction (Session Law Number 13C3S21, OPEN/CONSUME MARIJUANA IN
PUBLIC, $50+assessment = $103 fine)
Manufacture and/or Delivery of marijuana will still be a felony crime.
o The WA Liquor Control Board has until Dec 1, 2013 to develop and implement
regulations and licenses for producers, processors and retailers of MJ.
Federal laws regarding the possession, use or sale of marijuana HAVE NOT CHANGED.
All medical marijuana laws remain in place. Qualifying patients with valid documentation
will have an affirmative defense for possession over an ounce, but within the limits specified
in chapter 69.51A RCW. Qualifying patients and designated providers may also have an
affirmative defense to charges of manufacturing or delivering marijuana.
More Info Here: https://fortress.wa.gov/cjtc/www/index.php?option=com_content&view=article&id=253&Itemid=71
Patrol Officers: The importance of THC Hour 1
One new tool provided by I-502 is a per se standard for THC. The standard is established at 5 nanograms (ng) per milliliter of blood. Because active THC dissipates from the blood very rapidly, getting a blood sample as soon after a patrol officer has sufficient facts to establish PC is an important consideration.
Scientific studies show that a person smoking marijuana often has 50-80 ng of THC in their blood after their last puff. 30 minutes later, that level can drop to 15-16 ng—an 80% drop in THC. One hour after the last puff, the level likely drops to 5-6 ng THC. THC levels can then drop to 2-3 ng after 90 minutes, trickling off over a few hours.
That means officers have about 1 hour from time of smoking to get the blood before it drops below the 5 ng threshold. Once you establish PC for drug DUI, a patrol officer should move quickly to get blood in THC cases (generally by reading the newly revised Implied Consent Warnings for Blood via the revised Page 7 of the DUI packet).
Note, however, that once a patrol officer secures a blood sample, the officer should continue to document impairment via any available tools: request a DRE evaluation, seek a search warrant to search for evidence of the crime or to conduct a vehicle search, etc. Officers shouldn’t feel that since they’ve now formed an opinion and obtained blood, that no further investigation is possible. To the contrary, the additional evidence may be what the prosecutor needs to prove impairment at trial. [DREs will receive additional guidance from the DRE Program Coordinator and IDS in the coming weeks]
THC and ALCOHOL: The Additive Effect
One of several exceptions to the “get the blood quick” rule is when THC and alcohol are mixed. Even low levels of alcohol (.02) and low levels of THC (2-4 ng) produce exaggerated impairment. See Ramaekers, Marjuana, Alcohol and Actual Driving Performance, Hum. Psychopharmacol Clin. Exp. 15, 551-558 (2000).
Proving low levels of THC and a low level of alcohol with a blood test is less important than doing a very thorough investigation followed by thorough documentation of the impairment via your report and DUI paperwork. When you see impairment and the subject has both alcohol and THC on board, don’t assume a blood test is better than a thorough investigation. Marked impairment may be an indicator of a high level of THC, or it could be a sign the subject is under the influence of multiple drugs, including alcohol. Focus on documenting the impairment, then getting blood, especially if you don’t know when the subject was smoking marijuana or the evidence suggests it was more than a half-hour before the stop.
COURT REJECTS ATTACK ON DUI PROVISIONS!
It took only days for defense attorneys to begin attacking the new 5 ng THC per se limit in
I-502. The attack was led by “No on 502” advocate Adam West, who insists the new law
tricked voters into approving low THC limits for adults and minors (violating Art. II, sec
19). Mr. West demanded a preliminary injunction in Thurston County to prohibit
statewide enforcement of the new law while he litigated the issue. The task of defending
the new law fell to Bruce Turcott, Assistant Attorney General, and Peter Gonick, Deputy
Solicitor General.
Thurston Superior Court Judge Lisa Sutton agreed with the State that Mr. West did not meet
the requirements for a preliminary injunction. In addition, the court concluded Mr. West
had a low probability of success because the new law did not violate the state
constitutional provisions governing the title of new laws and how they relate to the
contents. Well Done!
Suspected Marijuana-Impaired Driver Involved in
Fatal Collision in Vancouver
Just 11 days after I-502 went into effect, a Vancouver, WA pedestrian was killed by a
driver who has admitted to using marijuana prior to the crash. This case will likely be
complicated by the fact that the victim was allegedly crossing in the middle of the
road, and not in a marked crosswalk, at the time of his death. After an investigation,
the 47 year old driver was arrested for being under the influence. Toxicology results
are pending. It will be interesting to see how this develops.
Although a common refrain from some members of the marijuana –using community
is that they “drive better when stoned,” this may be a sobering example of the false
nature of that claim. A drug that slows reaction time is clearly not something that will
enhance one’s driving ability.
Estimated Duration of Effects of Marijuana
Peak: 10 – 30 minutes after last consumption (smoking*) Duration: 2 – 3 hours Dissipates: 3 – 6 hours Residual Effects: Up to 24 hours (showing as inactive metabolite, carboxy-THC)
*If consumed in an edible form, the “high” takes longer to reach peak, and duration is longer. If you see apparent
THC impairment, ask how it was ingested. In addition to smoking, high-THC concentration liquids can be infused
into almost any food product or drink.
NEW MARIJUANA TRAINING
A special thank you for the
commitment of Bruce Turcott Asst.
Attorney General, and Peter Gonick
Deputy Solicitor General, for their
great work defending the new DUI
provisions for per se THC violations.
Without their hard work we might
have lost the DUI provisions, while still
having decriminalized marijuana!
Great work and great result!
Happy
Happy
Holidays
ON LINE!
Reprinted with the permission of the artist, Joe Heller. Thanks Joe!
Happy
Holidays!
General Indicators of MJ
Consumption and
Impairment
Odor of MJ
Relaxed inhibitions
Marked reddening of the
conjunctiva (whites of the
eyes)
Body tremors
Disorientation
Eyelid tremors
Impaired perception of time
and distance
MJ debris in or around mouth
Raised taste buds
Brief attention span
What do I need to develop PC for a “green DUI” now that marijuana’s legal?
In terms of traffic crimes, I-502 changes very little for law enforcement. I-502 merely
decriminalizes possession of limited amounts of marijuana. It does not authorize driving under
the influence of marijuana or under the combined influence of marijuana and anything else.
Because even low levels of marijuana can impair—much like alcohol, the odor of marijuana is a
valid basis for investigating a driver for DUI. However, don’t assume you will smell marijuana
use. Users have a variety of techniques other than smoking to get high. Certainly look for
bongs, pipes, clips, and joints, but also look for packaging, receipts, and especially physical
symptoms of use.
Also, ask about marijuana use. Many marijuana users are very cooperative, so it doesn’t hurt to
just ask now that possession is not an issue under state law. If they admit smoking less than an
hour before, they likely exceed the 5 ng per se limit.
How much marijuana can a person have under I-502?
I-502 allows a person 21 or older to have up to 1 ounce of useable marijuana, and up to 16
ounces of marijuana-infused product, and up to seventy-two ounces of marijuana-infused
product in liquid form. The state medical marijuana law complicates this by allowing larger
quantities, so make sure you use your prior training to verify whether the subject has the
necessary documents for a colorable claim that the quantity of marijuana is allowed under our
state medical marijuana laws.
FREQUENTLY ASKED
QUESTIONS What do I need to develop PC for a “green DUI” now that marijuana’s legal?
In terms of traffic crimes, I-502 changes very little for law enforcement. I-502 merely
decriminalizes possession of limited amounts of marijuana. It does not authorize driving under
the influence of marijuana or under the combined influence of marijuana and anything else. An
officer, therefore, develops PC for a marijuana DUI in exactly the same manner you were trained
in at the basic academy level. Because even low levels of marijuana can impair—much like
alcohol, the odor of marijuana is a valid basis for investigating a driver for DUI. However, don’t
assume you will smell marijuana use. Users have a variety of techniques other than smoking to
get high (see above reference to edibles and liquid marijuana). Certainly look for bongs, pipes,
clips, and joints, but also look for packaging, receipts, and especially physical symptoms of use.
Ask about marijuana use just as you do when inquiring about alcohol use. Many marijuana users
are very cooperative, so it doesn’t hurt to just ask now that possession is not an issue under state
law. If they admit smoking less than an hour before, they likely exceed the 5 ng per se limit.
How much marijuana can a person possess under I-502?
I-502 allows a person 21 or older to have up to 1 ounce of useable marijuana, OR up to 16
ounces of marijuana-infused product, OR up to seventy-two ounces of marijuana-infused
product in liquid form (Note: they are not legally allowed to possess all 3 at one time). The
state medical marijuana law complicates this by allowing larger quantities for valid medical
marijuana card holders, so make sure to use your prior training to verify whether the subject has
the necessary documents for a reasonable claim that the quantity of marijuana is allowed under
our state medical marijuana laws.
If an officer responds to a collision scene involving a driver under the age of 21, and the officer
smells marijuana, may the officer read ICWs and arrest the driver for a violation of RCW
46.61.503?
No. Violations of RCW 46.61.503 (“Driver Under 21 Consuming Alcohol or Marijuana”) are not
excepted from RCW 10.31.100’s requirement that the misdemeanor violation occurred in the
officer’s presence. However, if an officer observes the driver exhibiting signs of marijuana
impairment, the officer may investigate the driver for violation of DUI or Physical Control. Those
crimes are excepted from RCW 10.31.100’s requirement that the misdemeanor violation occurs
in the officer’s presence. In other words, the misdemeanor presence rule applies to 46.610.503
– Minor Consuming, but NOT to investigation of a minor for DUI or Physical Control where the
officer can articulate signs of impairment – whether marijuana or any other drug, including
alcohol or any combination.
Are the SFSTs validated for use in a
marijuana DUI case?
Yes. A 2005 study by Australian researchers
applied the standard SFST battery to THC users
and combined THC/alcohol users. They state
broadly that the SFSTs “appear to be an
appropriate screening tool for authorities that
wish to assess the driving capabilities of
individuals suspected of being under the
influence of a drug other than alcohol.” See K.
Papafotiou et al., Forensic Science Intern’l 155
(2005) 172-178.
Aside from this study, remember that an officer
need not be an expert to make observations and
offer a reasoned opinion. Many clues to
marijuana impairment may simply be
observations—such as the odor of marijuana, a
bong, a package of marijuana—along with
objective symptoms of use. Only scientific
assertions need to be “validated,” not
observations. Fortunately, you have both
supporting SFST use for marijuana cases.
Remember: Officers have been arresting and
prosecutors have prosecuted drugged driving
(marijuana) cases for decades – long before DREs
and long before I-502! DREs and ARIDE trained
officers may also administer Lack of Convergence
and the Romberg Balance Test.
Meanwhile….in Seattle on Dec 6th
What can an officer do if he or she spots an
adult smoking marijuana in the presence
of children?
If an officer spots an adult smoking
marijuana in public, you can cite for
violating the new infraction. However,
current studies suggest smoking marijuana
around others is no different from smoking
tobacco around others. Second-hand
smoke from marijuana won’t get you high.
While these studies were done on adults,
we don’t expect the result to be different
for children. In other words, a driver who
has been smoking marijuana in his car with
kids could be cited for endangering the kids,
but only because the smoking itself is
hazardous to their lungs, not because it
could make them high.
Smoking in Public Place: RCW 70.160.100
Public Use or Display of MJ: Session Law
Number 13C3S21, OPEN/CONSUME
MARIJUANA IN PUBLIC, $50+assessment =
$103 fine
TRAINING OPPORTUNITIES Will there be any training on Marijuana-impaired driving and/or the I-502 changes? -------------------------------------------------------------------------------------------------------------------------------------------------------------------
YES! The TSRP Program and DRE Program have joined forces to deliver a four-hour training on
marijuana-impaired driving enforcement and prosecution for law enforcement, prosecutors and
judges across the state. Some of these sessions will also include the 4 hour SFST refresher.
See info and register for each class on our website: www.duienforcers.camp7.org (You must
become a member of the website in order to register).
LIVE TRAININGS:
Seattle Police Department – Marijuana DUI and Legal Update (with limited spots for outside
agency attendees): Jan 9/10, 2013
CJTC (Burien) Marijuana DUI Roundtable with WA Prosecutors Association: Jan 16, 2013
Jefferson County (Port Townsend) Marijuana DUI and SFST Refresher: Jan 17, 2013
Clallam County (Port Angeles) Marijuana DUI and SFST Refresher: Jan 18, 2013
Tri-Cities (Kennewick) Marijuana DUI and Legal Update: Jan 31, 2013
Snohomish County (Everett) Marijuana DUI and SFST Refresher: Feb 7, 2013
Skagit County (Mount Vernon) Marijuana DUI and Legal Update: Feb 8, 2013
Clark County (Vancouver) Marijuana DUI and Legal Update: Feb 13, 2013
Spokane County Marijuana DUI and Legal Update: Feb 15, 2013
Yakima County Marijuana DUI and SFST Refresher: Feb 27-28, 2013
Seats are limited. Any student wishing to attend MUST REGISTER on the Impaired Driving
Website. Lodging scholarships are available if there isn’t a class in your jurisdiction (and/or you
are attending from over 50 miles from the training site). Any questions? Email the TSRPs.
ONLINE TRAINING AND REFERENCE:
The AG’s office, WAPA, and the Impaired Driving Section have created a centralized location for
updated training materials, Q&A for officers (created originally for the WSP), the new Page
7/Implied Consent Warnings form for blood draws, I-502 and K9s, and a frequently updated
selection of legal memoranda.
Access the online training materials here:
https://fortress.wa.gov/cjtc/www/index.php?option=com_content&view=article&id
=253&Itemid=71
For Training
Requests or
Technical Assistance
on Impaired Driving
Issues, please contact
the TSRPs:
Courtney Popp
206-720-3018 X24134
Moses Garcia
206-720-3018 X24117
Eastern WA Target Zero Prosecutor
Stephanie Olsen
The TSRP program is a “joint” project funded by the
Washington Traffic Safety Commission, the National
Association of Prosecution Coordinators, and the National
Highway Traffic Safety Administration. Any opinions here
are our own and not those of WSP, WTSC, or NHTSA.
Traffic Safety Resource Prosecutors Washington State Patrol
811 E Roanoke St Seattle, WA 98201
Ph: 206.720.3018
Fax: 206.720.3246
SAVE THE DATE 2nd Annual
WA State Impaired Driving
Symposium &
DRE In-Service!
When: May 2 – 4, 2013 (noon to noon)
Where: Westin Hotel, Bellevue, WA
Who: Prosecutors, law enforcement,
judges, treatment
/court/probation staff
Cost: $85 per student (includes
lunch and continental
breakfast – and lodging for
those travelling over 50 miles
to attend)
Lodging will be available for those travelling to the Symposium/ DRE In-Service from over 50 miles from Bellevue.
Spaces are limited, so look for registration to open in late January via the Impaired Driving website (become a member now to ensure you are getting all of our training notifications).
The basic facts
In this DUI case, a civilian called 911 about a drunk driver on the road. The trooper who
responded located the suspect vehicle, but didn’t see any driving confirming the driver
was DUI in the 30-45 seconds the officer followed the car. However, the trooper did
notice the muffler on the suspect car was illegally modified. The trooper testified he
regularly stopped vehicles for modified mufflers, and that he would have stopped this
car even if he had not had a DUI suspicion. He stopped the car and the driver was
intoxicated. The driver was convicted of Felony DUI and pled to DWLS 1.
What the lower courts did
The trial court concluded that the trooper had not violated the defendant’s rights and
refused to suppress the evidence. The court of appeals disagreed, concluding the
trooper’s primary interest was investigating the DUI, which made the investigation into
the muffler merely a ruse to stop the driver. Grant County appealed.
The ruling from the State Supreme Court
The State Supreme Court ruled that when officers have both a legitimate reason to stop
a car and an illegitimate reason, (a “mixed motive”) the stop is not unconstitutional. In
this case, the fact the trooper was suspicious about DUI was not a lawful basis for a
stop. However, the fact the officer was credible in his testimony that he regularly
stopped cars for muffler infractions and would have done so here gave the officer legal
authority to make the stop. The majority opinion carefully weighed the difficult choice
between the danger of illegal stops and the need for officer discretion to investigate
certain traffic offenses and not others. The two justices dissenting argued this allowed
officers too much latitude, essentially reversing Ladson and pretext stops.
A tremendous victory for Tyson Hill, Grant County and all those who helped!
Happy Holidays!
DUI STOP VS PRETEXT STOP?
STATE V. ARREOLA (Dec. 20, 2012) NEW
