Toke of the Town

Washington Cannabis Patients At Risk Under I-502 DUI Provision

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By on Legislation, News

Patients Against I-502

​Washington state’s marijuana legalization Initiative 502 has plenty of prominent backers and a healthy war chest of money heading towards the November election. So why do many of the state’s most prominent cannabis advocates oppose it?
One of the most troublesome reasons, according to Patients Against I-502, is its faulty DUI provision which would create a per se DUI charge for anyone testing over the low, arbitrary and scientifically unsupported blood THC level of of five nanograms per milliliter (5 ng/ml).

Until now, DUI-marijuana convictions in Washington have been based on actual impairment, rather than on test number, and many patients and recreational users would like to keep it that way, since medicinal cannabis patients (and heavy recreational users) rarely dip below 5 ng/ml, even when they first wake up, unimpaired, in the morning.

Patients Against New Approach Washington

​That pesky DUI provision — along with I-502’s ban on home cultivation by recreational users and its zero tolerance policy for people under 21 years old, has split the state’s marijuana community. Some say “baby steps,” while others say “backward steps.”
Washington lawmaker Mary Lou Dickerson attempted to fix the DUI problem with a bill in the Legislature, HB 2454, which would have patched up I-502 to specifically protect documented medical marijuana patients from the DUI provision.
But Dickerson’s bill unfortunately failed, leaving patients still vulnerable to spurious DUI charges, a worrisome prospect given the fact that some backwards law enforcement personnel, particularly in rural Washington, still haven’t even accepted the state’s medical marijuana law, passed by voters 14 years ago.
“We thank legislators, particularly Mary Lou Dickerson – a co-sponsor of Initiative 502 – for introducing HB 2454 to protect medical marijuana patients from the scientific perversions of I-502,” said Edward Agazarm on behalf of Patients Against I-502. “Requiring true impairment – instead of allowing wrongful DUIC convictions – was a noble but failed attempt to fix the flawed I-502.
 

Patients Against New Approach Washington

​”While the need for HB 2454 emphasizes how devastating I-502 will be for Washington’s medical marijuana community, the failure of HB 2454 emphasizes the futility of fixing a bad initiative,” Agazarm said. “I-502 must be defeated at the polls because the per DUIC limits of I-502 have no scientific foundation and will wrongfully convict Washington drivers.
“Patients with inactive background blood THC levels drive unimpaired daily to see doctors and keep critical appointments,” Agazarm said. “I-502 has a zero tolerance per se DUIC with narrow exceptions. Even occasional users will be wrongly convicted under I-502 because the language in it was driven by polling rather than science.”
 
“We urge voters to read the entire 66 page initiative before voting No on I-502,” Agazarm said.
 
For more information, you can visit www.patientsagainsti502.org.

Resources From Patients Against I-502

What the Law Says Now

(1) A person is guilty of driving while under the influence of intoxicating liquor or any drug if the person drives a vehicle in this state:

a) And the person has, within two hours after driving, an alcohol concentration of 0.08 or higher as shown by analysis of the person’s breath or blood made under RCW 46.61.506; or

b) While the person is under the influence of or affected by intoxicating liquor or any drug; or

c) While the person is under the combined influence of or affected by intoxicating liquor and any drug.

Current Washington State Law – RCW 46.61.502

How I-502 Will Change the Law

(1) A person is guilty of driving while under the influence of intoxicating liquor or any drug if the person drives a vehicle within this state:

(a) And the person has, within two hours after driving, an alcohol concentration of 0.08 or higher as shown by analysis of the person’s breath or blood made under RCW 46.61.506; or

(b) While the person is under the influence of or affected by intoxicating liquor or any drug; or

(c) While the person is under the combined influence of or affected by intoxicating liquor and any drug; or

(d) that the THC concentration of the driver’s blood is 5.00 or more; or the driver is under age 21 and the THC concentration of the driver’s blood is above 0.00

Text of Washington Initiative 502 (PART V – Driving Under the Influence of Marijuana)

What Science Says

“Scientific evidence on cannabis and driving is not yet sufficient to permit the selection of a numerical enforceable THC limit with the same level of confidence as for alcohol.”
Grotenherman et. al. “Developing Science-Based Per Se Limits For Driving Under The Influence of Cannabis”

“Substantial whole blood THC concentrations persist multiple days after drug discontinuation in heavy chronic cannabis users.”
Karschner et. al. “Do Delta-9 THC Concentrations Indicate Recent Use in Chronic Cannabis Users?”

“It is not possible to conclude anything about a driver’s impairment on the basis of his/her plasma concentrations.”
U.S. Department of Transportation “Marijuana and Actual Driving Performance: Effects of THC on Driving Perfomance”

“Due to the invasiveness of the collection procedure and the cost of laboratory analysis, routine screening of blood for drugs in drivers has generally been viewed as impractical.”
National Highway Traffic Safety Administration “State of Knowledge of Drug-Impaired Driving”

What Legal Experts Say

“Many newly proposed DUID laws — in particular “zero tolerance” per se laws — have little to do with promoting public safety or identifying motorists who drive while intoxicated.”
DUID Legislation: What it means, who’s behind it and strategies to prevent it

“Alcohol-impaired driving per se laws are based on evidence that all drivers are impaired at .08 BAC. Drug per se laws are more analogous to zero-tolerance laws that make it illegal to drive with certain drugs in the system.”
National Highway Traffic Safety Administration “Drug Per Se Laws: A Review Of Their Use In States”

“Under the proposed statute I-502 offers, an individual-who may be sober-will be found guilty of DUI merely because of 5ng.”
Green DUI’s, Medical Marijuana, and Initiative 502

What National Reform Groups Say

“In some chronic users, THC may be present in blood for a period of days after past use, long after any performance impairing effects have worn off.”
Armentano, P. “Cannabis and Driving: A Scientific and Rational Review”

“This is a particular concern for medical marijuana patients who are using marijuana in compliance with state laws and their doctors’ advice, but who would likely test positive for marijuana while sober.”
Marijuana and DUI Laws: How Can We Best Guard Against Impaired Driving?

“Motorists may be criminally prosecuted if trace levels of cannabis or cannabis metabolites are found in the driver’s bodily fluids, even if the individual is neither under the influence nor impaired to drive.”
Researchers Proposed Per Se Guidelines for Cannabis and Drugged Driving

“Heavy users might exhibit measurable cannabinoid concentrations in blood, even if the last cannabis use was more than 24 hours ago.”
Colorado’s 5 ng/ml per se DUID bill dies again as new research backs higher thresholds for regular users

Recommendations To Elected Officials

“This report demonstrates that a 5 nanogram per se law would be: 1) unnecessary 2) unsupported by the science; and 3) unlikely to significantly improve public safety”
Marijuana DUI Workgroup Recommendation to the Drug Policy Task Force and Colorado Commission on Criminal and Juvenile Justice

“Discussions by the experts of the per se limit related to driving impairment ranged from 1‐2 ng/ml to 15 ng/ml. A low threshold would likely include individuals whose driving ability was not impaired…”
Marijuana DUID Working Group Memorandum to Drug Policy Task Force

“Cannabis alone, particularly in low doses, has little effect on the skills involved in automobile driving.”
Canadian Senate Special Committee on Illegal Drugs “Cannabis: Summary Report: Our Position for a Canadian Public Policy”

“…impairment might occur with an individual with just 2 nanograms per milliliter of blood, while another person might be unimpaired until he registered 15 nanogr
ams.”
Marijuana Working Group Decides Not To Recommend Specific THC Driving Limits

What Real Life Experiences Show

“Even when deemed sober by a doctor, my active THC levels were almost triple the proposed standard of 5 nanograms per milliliter of blood.”
THC blood test: Pot critic William Breathes nearly 3 times over proposed limit when sober

“We have tested four medical marijuana users (defendants in DUID cases) to determine the time course of THC concentrations in their blood for times up to 16 hours after the last marijuana use. Every single one of the subjects showed significantly elevated THC and THC-OH concentrations long after they might have been impaired.”
 N = 1 Trials by Dr. Robert K. Lantz

“NAW’s proposed blood limit of five nanograms per milliliter of active tetrahydrocannabinol (5 ng/ml THC) is unrealistic, and worse than useless – it would effectively criminalize driving by most patients, even when they’re completely unimpaired by cannabis.”
NAW: DUI Limits Mean Initiative Is Fatally Flawed

“The Legislature recently defeated a measure which would have limited blood THC levels at five nanograms per millilter (ng/ml). Advocates said the measure was far too strict, and would, in effect, have banned medical marijuana patients from legally driving.”
HD Net ‘World Report’ Looks At Driving While High

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