I was interviewed recently about the topic of “marijuana DUI” for the journal Elements at the University of Richmond, so I figured I this might be a good time to discuss the subject. When I first started working as an attorney in King County in the 1990’s, marijuana DUI was practically unheard of. It is really only in the last decade that police and prosecuting attorneys have even tried to prove “marijuana DUI” cases. Unlike alcohol, marijuana just doesn’t affect a person’s coordination the same way. We have all heard the expression “falling down drunk” but there really isn’t the equivalent of “falling down stoned.” Studies have shown that marijuana does not affect people in the same predictable manner that alcohol does.
Much of the enforcement that DUI attorneys see today is really a backlash against initiative I-502. Law enforcement arrests have increased since the decriminalization of marijuana in Washington state because the police have more time on their hands, and they are concerned about people abusing the new law. Initiative 502 sets a “per se” limit of 5 nanograms THC for a driver’s blood. Also, Initiative 502 really puts minors in a difficult position because the law sets a zero tolerance level for any THC in a minor’s blood. Such a charge can pose a real hardship for college students. A conviction for marijuana dui stays on a person’s record for life, and it is impossible to expunge or vacate the conviction. The 5 nanogram limit for THC within I-502 was controversial and there is no real scientific evidence proving that that is the level that necessarily impairs a person’s ability to drive. In Pullman, Washington, I have seen charges brought against minors with blood THC levels of only 1 nanogram of marijuana. There are many legal challenges that can be brought against a court case alleging such an offense. The field sobriety tests or “FST’s” on marijuana DUI cases have not been certified to the same extent as alcohol related DUI cases.