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Green DUI’s, Medical Marijuana, and Initiative 502 – Part 2

Marijuana users in Seattle, Oak Harbor, and Island County will have a higher risk of being charged with DUI if I-502 is approved by voters.


Under current DUI law, and pursuant to the “affected by” prong of the DUI statute, the prosecution bears the burden of proving impairment caused by marijuana beyond a reasonable doubt. This can be a heavy burden and may be difficult to prove. The prosecution, in order to successfully meet this burden, will likely have to produce testimony from an expert witness. Even then, such an expert witness’s testimony may be undermined by another expert witness.

As mentioned previously, the “affected by prong” of the DUI statute, unlike the “per se prong” concerning alcohol consumption, does not render one strictly culpable for DUI when it comes to cannabis consumption. Initiative 502 will change that.

Initiative 502 will change the current DUI statute, RCW 46.61.502 by creating another per se prong specifically for marijuana. Under this new DUI statute, a person will be guilty of driving under the influence if he or she has a THC concentration of 5.00ng or higher within two hours after driving, as shown by a blood test.

This may seem reasonable to some–representing a quid pro quo of sorts. However, this change in the DUI statute may lack a scientific basis and therefore may be unfair to medical marijuana patients.

In Colorado, a proposed bill, HB 1261, also set a 5ng THC limit for DUI. The bill was passed in Colorado’s House, but was prevented from becoming law after it reached the Colorado Senate Judiciary Committee. The main issue that ultimately prevented the law from passing was that the 5ng gram limit was not based on science that shows a 5ng level of THC necessarily means that a driver is impaired. The 5ng limit has been criticized as unfair because sober patients, responsibly using medical marijuana in a lawful matter, could be strictly liable for DUI regardless of whether they are in fact sober.

Therefore, while Initiative 502 seems to be attractive for the medical marijuana patient because it provides protection from arrest–this may actually be a diversion. Voters’ attentions may be drawn away from the negative aspect of the proposed law due to its seemingly positive aspects.

Under the current DUI statute, the state must prove beyond a reasonable doubt that a person with 5ng of THC in their system is in fact under the influence of or affected by cannabis. The statute does not make one strictly liable for having such an amount of THC in their blood. Under the proposed statute I-502 offers, an individual–who may be sober–will be found guilty of DUI merely because of 5ng.

Is there any science out there that says that one with a mere 5ng of THC in their blood stream is in fact impaired? It is very possible that I-502 may actually put medical marijuana users at risk of being arrested for DUI regardless of sobriety.

For more information on the lack of science supporting I-502, visit Patients Against New Approach Washington.

Voters and proponents of medical marijuana should think twice before voting “Yes” on I-502. It actually may provide a legal basis for officers to discriminate against medical marijuana patients who are behind the wheel. Furthermore, this could increase the burden on the courts and cost the state additional money.

The attorney’s at Platt & Buescher have been providing legal representation for those accused of possession of marijuana and DUI in Washington State since 1990.