DUI for Marijuana, Driving High, and THC Impairment
There is an urban myth of sorts that has been floating around amongst students in high schools, community colleges and universities since at least the late 1990’s. It is the myth that a person cannot get a DUI for driving high.
The truth is that “green DUI’s” are very real. One can be charged with DUI for driving under the influence of marijuana just as one can be charged with DUI for driving drunk.
Under Washington State’s Driving Under the Influence Statute codified as RCW 46.61.502, there are two theories, or prongs, under which an individual may be charged for DUI.
One is known as the “per se prong”, where an individual has an alcohol concentration of .08 or higher within two hours after driving–such an individual is automatically deemed to be impaired. If the breath test is admissible, then the accused may find it difficult to defend themselves against DUI by claiming lack of impairment.
The other prong under which one may be charged for DUI is the “affected by prong.” Under this prong, an individual may be charged with driving under the influence if the person is “under the influence of or affected by” any drug. This is the theory under which prosecution for a green DUI will proceed. However, unlike a prosecution that commences under the “per se prong” of the DUI statute, a prosecution that proceeds under the “affected by prong” requires the prosecution to show that the driver accused of a green DUI was in fact under the influence or affected by THC. This can raise a variety of issues for several reasons.
For instance, field sobriety tests including the walk and turn, one leg stand, and horizontal gaze test are intended to be indicative of a person’s breath or blood alcohol content. These tests have not been designed to show impairment (i.e. the test results are correlative with one’s breath or blood alcohol level–they are not necessarily indicative of impairment). This may raise the issue as to whether or not the tests are relevant when used to show marijuana impairment because marijuana consumption does not result in a blood alcohol level.
Furthermore, the fact that one has THC in their blood does not necessarily mean the person was under the influence of cannabis. A person can have non-psycoactive THC in their system.
The Washington State Legislature has acknowledged that there is medical evidence that some patients with medical conditions may benefit from the medical use of cannabis. See RCW 69.51A.005. Therefore, the legislature has passed laws with the intent to prevent those who are “qualifying patients” from being arrested, prosecuted, or subject to other criminal sanctions based solely on their medical use of cannabis. A “qualifying patient” is a person who: (1) is a patient of a health care professional (i.e. a licensed physician, physician assistant, osteopathic physician or assistant, naturopath, or advanced registered nurse practitioner), (2) has been diagnosed as having a terminal or debilitating mental condition, (3) is a resident of the state of Washington, (4) has been advised of the risks and benefits of medical marijuana, and (5) has been advised that they may benefit from marijuana (i.e. has received a valid prescription).
Currently, the medical use of cannabis in Washington in accordance with RCW 69.51A does not constitute a crime, and a qualifying patient may not be arrested, prosecuted, or subject to other criminal sanctions or civil consequences for possession, manufacture, or delivery of cannabis if he or she possesses no more than 15 cannabis plants or no more than twenty four ounces of cannabis.
Ultimately, it has been held that the above statutory law provides a qualifying patient with an affirmative defense if the patient is in compliance for the above requirements for medical marijuana possession. An affirmative defense is where a defendant admits to having committed the criminal act, but has a legal excuse for doing so. In order to successfully assert the affirmative defense, and therefore avoid conviction of possession of marijuana, the defendant must show, by a preponderance of evidence, compliance with RCW 69.51A. See State v. Fry, 168 Wash.2d 1, 228 P.3d 1 (2010).
Thus, a person can still be arrested for possession regardless of their compliance with the RCW 69.51A.
The attorneys at Platt & Buescher have been handing alcohol and marijuana DUI and drug possession cases since the early 1990’s. Contact Platt & Buescher at (360) 678-6777 for your Oak Harbor, Seattle, or Island County DUI, Marijuana DUI, or possession charges.