Initiative 502 (I-502), Washington's new marijuana law, took effect on December 6, 2012. The new law initiates changes with regard to the possession and use of marijuana and related paraphernalia, as well as impacts the provisions of the state's DUI laws. While the changes are significant, they are not a blanket legalization of marijuana and you must be aware of the limitations. There will be significant legal issues involved in the enforcement and application of the laws for some time to come. The law does not effect the provisions of medical marijuana in Washington. Additionally, federal laws regarding possession, use or sale of marijuana have not changed. Employers can still regulate and enforce their own policies with regard to your use of marijuana. The changes in Washington law are summarized below.
Possession, Manufacture, or Delivery of Marijuana
Possession of certain amounts of marijuana, by a person over the age of 21, is now legal in Washington State. However, there are still numerous restrictions on the use and possession of marijuana, of which you must be aware:
- Possession of up to one ounce of marijuana is legal (28. 3495231 Grams).
- Possession of 16 ounces of marijuana -infused product in solid form or seventy-two ounces of marijuana-infused product in liquid form is legal.
THE LAW DOES NOT PERMIT THE SEPERATE TYPES OF PRODUCTS TO BE POSSESED AT THE SAME TIME
- Possession of over one ounce but less than 2 ounces is still a misdemeanor offense (29-40 grams).
- Possession of over 2 ounces is still a Class C felony offense (40 grams).
- Possession of any amount by a person under the age of 21 is still a criminal offense. (Less than 2 ounces a misdemeanor and over 2 ounces a felony).
- Manufacture of any amount of marijuana by a person of any age is still a felony.
- Delivery of any amount of marijuana by a person of any age is still a felony.
The new law requires that the prosecution must prove that the THC concentration is greater than 3/10 of one percent (0.3%) of the dry weight of the product. The WSP crime lab is still putting into place the protocols for this quantitative analysis and it will be difficult for prosecutors to prove marijuana related cases until the lab is able to provide lab test results.
The Washington State Liquor Control Board has until December 1, 2013 to develop regulations regulating and licensing producers, processors, and retailers. Even once those license provisions are in effect, manufacture and delivery by a person who is not licensed will still be a crime.
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 RCW 69.51 A. Qualifying patients and designated providers may also have an affirmative defense to the charges of manufacturing or delivery.
Marijuana Related Paraphernalia
- Possession of marijuana related paraphernalia is now legal for a person of any age, eg; a 16 year old can legally posses a marijuana pipe.
- Sale of marijuana related paraphernalia is now legal.
- Possession of any other types of drug paraphernalia (for use of a controlled substance other than marijuana) by a person of any age is still a crime and police will be looking for and articulating what the devise was intended/used for.
Opening or Consuming Marijuana in Public
- Use of or displaying marijuana in public is a class 3 civil infraction with a penalty of $103
- If a person fails to respond to the notice of infraction they can be charged with a misdemeanor.
Prosecutors intend to go forward on these civil infractions without lab testing of the substance because the burden of proof for a civil infraction is a preponderance of the evidence, not proof beyond a reasonable doubt. Officers will note their training and experience in identifying marijuana, and the observations and opinions of the officer as well as any admissions made by a person. There are likely to be challenges to this evidence as insufficient evidence, as the new law requires that the prosecution must prove that the THC concentration is greater than 3/10 of one percent (0.3%) of the dry weight of the product. If challenged, the prosecution is likely to seek an affidavit from the State Toxicology lab stating that the average THC in usable marijuana is much higher than 0.3%.
If the amount possessed is legal, the police are not likely to be seizing your marijuana for this type of violation because the possession is legal. They are more likely to photograph and document the substance and use.
If you are arrested for any criminal offense and are in possession of marijuana in a lawful amount, the police are not likely to be seizing the marijuana as the jails will not take it as part of your property and hence they will likely make efforts to leave it in your home or vehicle.
If the substance is evidence of a criminal offense (such as DUI), it will be seized and placed in evidence. If it is not evidence, and there is no option but to impound the marijuana, if not evidentiary, it will not be marked for immediate destruction, and like any property, you may be able to seek its return. (federal law is likely to complicate this).
A person can be charged with DUI not only based on alcohol consumption but also for driving under the influence with drugs in their system. This is not limited to illegal drugs, but can also include prescription or over the counter drugs, and marijuana. This has always been the applicable law for DUI. The new marijuana laws however add a per se level for marijuana of 5.00 nanagrams per millileter as evidenced in the blood. This is similar to the per se standard for alcohol of .08% blood alcohol.
Now a person can be charged with a DUI:
- by having a level of THC above the per se limit of 5.00 nanograms per Ml as evidenced by blood, or
- driving under the influence while affected by marijuana
- DUI under 21 YO is zero tolerance and over 0.00 nanograms is presumed intoxicated.
Prosecutors will handle DUI cases involving marijuana the same as they always have; expert witness testimony if the driver appears under the influence, which generally involves the officers observations and opinions, use of a Drug recognition expert (DRE), testimony by a toxicologist as to the effects of marijuana on driving, evidence of possession, which will include marijuana, pipes, baggies, etc., and admissions of a suspect. In this instance, marijuana and paraphernalia will be seized as evidence.
Prosecutors can now rely on per se blood test results as well. These tests will measure active THC in the blood and not stored as metabolized in the fat cells.
Officers will need to get a suspects blood tested within an hour of the stop as the dissipation rate is significant. THC levels can drop 50-80 Ng per ML to 5-6 Ng per Ml in one hour.
If a suspect refuses to give consent for a blood draw, the officer will decide whether or not to seek a search warrant for a blood draw. Police may seek a search warrant for blood evidence of intoxication outside the implied consent process normally relied upon.
Like any DUI, if there is probable cause for vehicular assault, the officer can obtain a blood draw without a search warrant. However if the level of injury is not yet apparent, as it must be “substantial bodily harm” as defined by statute, to support the probable cause, they would be prudent to and would likely seek a search warrant.
Because of the difficulties and delays associated with a blood draw, and considering the dissipation rate, in considering whether to seek a warrant, Police will decide how strong the case is without evidence of THC content, relying on such factors as:
- evidence of marijuana and paraphernalia
- bad driving
- clearly impaired suspect
- observations and opinions of the officer
- impairment determined by a DRE
- admissions of the suspect
If the evidence is strong enough without blood THC level, officers may decide not to seek a warrant.
However, if a person has a history of DUI, is involved in a collision, or if anyone is injured, these circumstances will all factor into whether or not they seek to use additional resources to gather evidence, eg; blood evidence.
Blood search warrants are by definition time sensitive and hence, most prosecutors' offices do not require review or approval before application to a Judge. Forms are provided to police agencies and can quickly be completed and a telephonic warrant obtained.
Officers must impound a vehicle under state law when they make an arrest for DUI or Physical Control. This is true for a marijuana related DUI, even if the officer is referring the case to the prosecutor's office for a charging decision instead of citing and releasing.
The new marijuana law, as well as the application to DUI laws in Washington is complex and legal issues surrounding application and enforcement of the laws are likely to be significant.