The Facts on I-502

This guest post is by Alison Holcomb, campaign director for initiative I-502, which would legalize, tax, and regulate marijuana. Her piece responds to an opposing guest post by anti-I-502 campaign treasurer Anthony Martinelli who says the initiative would result in needless DUIs for heavy marijuana users.

If Anthony Martinelli and “Patients Against I-502” are going to keep beating the DUI drum, let’s at least provide the public accurate information with which to weigh their arguments:

1. The mandatory minimum sentence for a first-time DUI conviction is 24 hours in jail and a $350 fine. RCW 46.61.5055. The mandatory minimum sentence for a first-time misdemeanor marijuana possession conviction is 24 hours in jail and a $250 fine. RCW 69.50.425.

2. We’ve had an “implied consent” law since 1968, when voters passed Initiative 242 by a 67 percent to 33 percent margin. This means that, for the past 43 years, the rule has been that if you’re driving on a Washington road, you are deemed to have consented to a test of your breath or blood for purposes of determining whether you are driving impaired.

3. We’ve had a “per se” law for alcohol since 1979. It is not a “rebuttable presumption” of impairment; it is a standalone option for prosecutors to prove DUI, an alternative to proving actual impairment. Compare RCW 46.61.502(1)(a) and (b), and note the “or” between them.

4. The Washington State Supreme Court has held that neither the implied consent nor per se law is unconstitutional. State v. Franco, 96 Wash.2d 816, 639 P.2d 1320 (1982).

5. The implied consent law is RCW 46.20.308. Before your blood can be drawn, the investigating officer must satisfy three requirements: have probable cause to arrest you; have reasonable grounds to believe you have been driving under the influence (“reasonable” means he or she has to be able to describe observations that an objective person would agree suggest impairment); and further have reasonable grounds to believe that you specifically are under the influence of a drug. Without grounds to believe a drug is causing impairment, you can only be required to submit to the breath test for alcohol. If the officer fails to satisfy any one of these three requirements, a defense attorney can bring a motion to have the test results kept out of court.

6. I-502 does not change any of these requirements.

7. After I-502 passes, possession of up to 1 oz. of bud, 16 oz. of infused solids, 72 oz. of infused liquid, or any combination of those amounts, will no longer be a crime and therefore no longer provide probable cause for an arrest, the first requirement an officer must satisfy before taking you in for a test.

8. Because possession of those amounts will no longer be a crime, patients will finally have arrest protection. With no registry.

9. The officer does not conduct the blood draw. Only the medical personnel identified in subsection (5) of RCW 46.61.506 may administer the draw. This means the officer either has to take you to a medical clinic or call an ambulance to the side of the road to obtain a blood draw. That’s a significant commitment of the officer’s time.

10. The 5 ng/mL per se threshold applies only to delta-9 tetrahydrocannabinol, the active THC that can cause impairment. It does not apply to carboxy-THC, the inactive metabolite stored in fat cells that can be detected in urine days, or even weeks, after last use. This is spelled out in Section 3 of I-502, which begins at the bottom of p. 8 and continues at the top of p. 9.

11. Science supports 5 ng/mL active THC concentration in whole blood as a reasonable dividing line between impaired and unimpaired drivers. At 5 ng/mL, the risk of accident surpasses the risk for sober drivers. That’s what the chart on the second page of this backgrounder illustrates.

12. Not every DUI case involving a test above the per se cutoff results in a DUI conviction. Prosecutors negotiate pleas for a variety of reasons. Talk to a DUI lawyer to find out why.

More information about I-502’s per se standard, and many other issues, can be found on the New Approach Washington FAQ page. Have a question not answered there? Please email it to us.