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DUI Provision In Washington Marijuana Legalization Initiative ‘I-502’ Creates Controversy


Washington I 502DUI Provision in Washington Initiative-502 Creates Controversy Among Supporters of Medical Marijuana

By Christopher J. McCann

Under Washington Initiative-502, drivers who test positive for 5 or more nanograms per milliliter of active THC (tetrahydrocannabinol) in their bloodstream are eligible for a conviction of DUI. THC is the principle psychoactive component of the cannabis plant. The set limit of 5ng/mL has backing from research conducted in 2005. Despite being a safety provision, I-502’s stance on DUI is heatedly contested by supporters of medical marijuana who believe that the ruling will put legal users at risk of unfair arrest.

Existing medical marijuana law in the state of Washington only prohibits patients from using their license to contest DUI charges made against them. Unsafe driving is unsafe driving. Although I-502 has not made specific claims to preempt this medical marijuana law, most agree that the new provision would apply to existing patients.

Critics of I-502 think that, legally, the new DUI provision makes medical marijuana patients extremely vulnerable. Tests conducted by Dr. Gil Mobley, a licensed provider of medical marijuana, garnered results suggesting that patients retain would-be illegal levels of THC in their systems for up to 4 hours after medication. Dr. Mobley’s research also concluded that patients who measured in at up to 47 ng/mL of THC in their bloodstream were still able to pass basic cognitive exams.

Such figures suggest that I-502’s legal limit is unreasonably low. A person can show a high THC level without being stoned. Medical marijuana patients would essentially be unable to drive legally. If those same patients happened to have been convicted of DUI within the last 10 years, they would essentially be committing a felony every time they decided to drive. The ethics of such a provision have resulted in heated debates between lawmakers and activists.

Those attempting to debunk the argument made by medical marijuana providers like Mobley believe that critics of I-502’s DUI provision are more concerned about potential losses to the medical marijuana business than the legal safety of existing patients. Supporters of the 5ng/mL limit cite studies that establish significant drops in THC level after smoking, even in long-term medical marijuana patients. They also cite results suggesting that drivers with more than 5ng/mL of THC in their blood are more likely to get into car crashes.

Speculatively, the strict DUI provision was introduced to Washington I-502 as a way to win over voters who would be otherwise skeptical about the safety of “legalizing marijuana.” The initiative also bans possession for anybody younger than 21 years old. Even if it was unintentional, the new DUI provision takes legal action against drivers under the influence of medical marijuana and starkly clears up the gray area in current Washington state medical marijuana law.

Legislative marijuana reform under Washington Initiative-502 will probably appear on ballots this November. The movement as a whole has received much attention because of corporate coffers that have invested a lot of money behind its passing. For now, there’s sure to be continued debate between the supporters and detractors of this divisive piece of legislature.

Christopher McCann is an Orange County DUI lawyer. McCann is a practicing lawyer at the Law Offices of Christopher J. McCann and generally writes on topics related to criminal defense and DUIs. McCann was voted as a “Rising Star Attorney” in 2010 by Southern California SuperLawyers Magazine.


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  1. As unfair as I think that set limit is, currently it’s illegal at any amount right? so…keep things the way they are b/c you don’t agree with the proposal? It’s 0 nanos right now. The initiative is an improvement and at least allows legal use and possession. Baby steps people. Legalize it first then set a legal blood level next. How many of you furthermore have ever been blood or piss tested for pot smoking after being pulled over right now? If you don’t look suspicious, there’s no reason for them to do anything, so relax.

  2. hassa .. cant wait till legal we will have no need for the likes of you and the toys your depts want that do nothing but leach or tax dollars shove your head a bit farther an get some air crooked cop 

  3. In essence, I-502:
    -> Decriminalizes 1oz of marijuana for Adults 21+
    -> Allows the State Liquor Control Board to license commercial outlets to be taxed 25% in retail/wholesale transactions + state taxes.
    -> Adds unscientific DUI provision.

    This DUI/D provision deprives defendants the right to the presumption of innocence based on the introduction of an unscientific standard, which leads to wrongful DUI convictions.

    However, there seems to be an overriding presumption that the legislature and governor would, following the passage of I-502, strive to clarify commercial regulatory provisions to a statewide program in order to ensure the public safety and welfare of Washingtonians, as well as to provide for specific regulations to be adopted by the state liquor control board. The WA governor vetoed follow-up legislation twelve years after the passage of WA’s medical marijuana initiative… so passage of an initiative, upon effect, is the word of law until follow-up legislation is enacted, or the law is overturned by a court of competent jurisdiction, and cannabis consumers across the state will be facing a new prohibition.

    This is not a medical vs. recreational debate, although it affects medicinal users as well. There is a legitimate concern that – if enacted by WA voters – I-502?s DUI laws prescribing de facto presumption of impairment at 5 ng/mL of active marijuana metabolite, along with its excessive taxation and no personal home grow, could be mirrored in other legalization models adopted throughout the country as a sign of continuing compromise for limited legalization.

    Here is the absolute least of what needs to be passed through the legislature in a timely manner for this initiative to ultimately work out in favor of cannabis consumers (and to help WA’s marijuana industry remain competitive ten years from now):

    1) Expand “small amounts” decriminalization to at least match MMJ patients (24 ounces), if not raise both amounts significantly.
    2) Decriminalize cultivation of at least 15 mature plants (and no limit on immature plants) for private non-commercial use.
    3) Ensure landlords have the right to prohibit cultivation and use on leased property.
    4) Eliminate DUI/D per-se laws (revert to current law), and continue to have the University of Washington study the issue.
    5) Provide civil penalties for violation of underage laws.
    6) Eliminate the burdensome taxation imposed upon licensees, the revenues of which would no doubt be included in the price for the product.
    7) Add employment discrimination protection laws.

  4.  but you have to be showing unsafe driving stupid prohibitionist you your as ignorant has the day is long 25million smokers and find me one accident attributed to marijuana find one bet you cant

  5. DarkerMatter on

    Divide and conquer!  Ha, ha, ha, us cops are laughing at you stoners all the way to the bank. 

    Don’t you get it, we will always win.  We have the propaganda and the judges on our side.  Stupid pot heads. 

  6. Steve Sarich on

    “They also cite results suggesting that drivers with more than 5ng/mL of THC in their blood are more likely to get into car crashes.”
    This is NOT TRUE!  There are no “studies” that show this.  In fact, the studies all conclude that there is no way to measure impairment by testing the level of THC in blood.  We’re talking about all the studies going back over 25 years!  The argument that those of us who are trying to protect fellow patients are only doing this because we’re greedy is a total red herring cooked up by the sponsors and NORML.

    This DUID provision would mean that the 18 year old patient with bone cancer that I care for would not be able to drive himself to the doctor since there is a zero ng/ml limit for anyone under 21.  He will either have to quit driving or quit taking his medication.  That’s simply not right and it has no basis in scientific evidence whatsoever.

    Currently a non-patient with an ounce of pot in Seattle will not be charged with any crime.  In less lenient areas the fine my range from $250-$500.  A DUID, including attorney’s fees, will cost you an average of $10,000 and will still show up on your record as a drug related offense.  And this is what the sponsors of I-502 refer to “harm reduction”?  They make the ridiculous argument that we’re just paranoid and the cops won’t use this shiny new weapon against patients.  These same people should stop and think about the fact that it won’t just be patients that will end up with these DUID’s.  Go out and party Saturday night and get popped on your way to church the following morning with the wife and kids….you’re likely going to jail for DUID.

    Steve Sarich
    Executive Director

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