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I-502 Does Not Create A Driving While Under The Influence Charge With A 0ng/ml Per Se Limit

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By Alex Newhouse

Sensible Washington and the No on I-502 campaign officially maintain that I-502 creates a 0 tolerance DUI. No on I-502 states:

“Even worse: the zero tolerance clause for those under age 21 (refusing to acknowledge that you can legally possess medical cannabis in our state under the age of 21). Drivers in this age bracket will be guilty of a DUID with even the smallest amount of cannabis in their system, meaning that a failed test and an innocent-DUID could take place a week or further after last consumption.” http://www.nooni502.com/wordpress/about-no-on-i-502

Sensible Washington States: “It mandates a zero-tolerance driving policy for those under 21 (Sec. 31., Page 46). This is unethical policy, and will lead to prosecution of those aged 16-21 simply for having consumed cannabis days or even weeks before (this zero tolerance policy is the only provision of the initiative that alters current law for those under 21). A DUID on a person’s record can affect their lives forever. This limit appears to ignore the fact that individuals aged 18-21 are allowed under state law to use doctor-recommended medical cannabis.” http://sensiblewashington.org/blog/

Steve Sarich has called me a liar on more than one occasion. On the Observer’s website, he wrote: “Mr. Newhouse is lying. The wording in the initiative ABSOLUTELY sets a zero tolerance limit for those 16-20 years of age. This was addressed at the debate.” http://cwuobserver.com/article.php?id=74

So what is it? Am I blatantly and intentionally lying?

Let’s begin with Part V of Initiative 502. It is here, at the end of the initiative, that the proposed amendments to our DUI laws are found. By I-502’s own page numbers, Part V begins on page 46 and continues on until page 63. It is a lot of reading. You can find I-502 with these page numbers here: http://www.newapproachwa.org/sites/newapproachwa.org/files/I-502%20bookmarked.pdf

Section 31 of the initiative amends RCW 46.20.308. Douglas Hiatt cited these amendments as authority for the zero tolerance DUI theory. http://www.youtube.com/watch?v=tdawsEVGv8g&feature=youtu.be. Start the video at about 1:31:00. You can read RCW 46.20.308 as it currently exists here: http://apps.leg.wa.gov/rcw/default.aspx?cite=46.20.308. This particular part of the RCW concerns implied consent, notice requirements and procedure following a breath test, blood test, or refuse. Read it carefully. Do not let the language of .00 throw you off, even though it states it a number of times. This section of the code will state as follows after I-502 amends it:

“. . . a test or tests of the person’s blood or breath is administered and the test results indicates that the alcohol concentrations of the pe rson’s breath or blood .08 or more, or the THC concentration of the person’s blood is 5.00 or more, if the person is age twenty-one ore over, or that the alcohol concentration of the person’s breath or blood is 0.02 or more, or the THC concentration of the person’s blood is above 0.00, if the person is under the age of twenty-one, or the person refuses to submit to a test . . . .”

Please take note that it specifically states in black and white, “IF THE PERSON IS UNDER THE AGE OF TWENTY-ONE.” So, in section 31 of I-502, there is no support for a 0 tolerance DUI.

In Section 32 of I-502, which begins on page 53, RCW 46.20.3101 is amended. It only concerns license suspensions. This isn’t a statute from which criminal charges flow, just like criminal charges will not flow from I-502’s RCW 46.20.308. Again, don’t let the language fool you. It states:

“In the case of an incident where a person under the age of twenty-one has submitted to or been administered a test or tests indicating that the alcohol concentration of the person’s breath or blood was .02 or more, or that the THC concentration of the person’s blood was above 0.00.”

Section 33 of I-502 amends RCW 46.61.502 beginning on page 54. This is our DUI statute. http://apps.leg.wa.gov/rcw/default.aspx?cite=46.61.502. Criminal charges flow from this statute. Notice that there is not a single place within I-502’s amended statute that contains the 0.00ng language other than when it talks about samples of blood or breath taken more than two hours after driving. What this means is that those samples obtained after the 2 hour window can be used as evidence of what the blood or breath content was during within 2 hours after driving.

Let’s skip over Section 34 of I-502 for now, which begins on page 56.

Section 35 of I-502, which begins on page 57, amends RCW 46.61.504. Criminal charges flow from this statute. It is essentially a mirror image of RCW 46.61.502 and has the same penalties. It makes it a crime to be in physical control over a motor vehicle while impaired or if your blood or breath contains the prohibited amount of alcohol in it. The prohibited amount of alcohol is .08. I-502 makes the prohibited amount of THC 5ng.

On to Section 36 of I-502! We’re almost done. This section amends RCW 46.61.50571. It can be found in its current form here: http://apps.leg.wa.gov/rcw/default.aspx?cite=46.61.50571. This statute simply mandates when a defendant charged under 502, 503, and 504 appear before a judicial officer in person. Notice that the statute as it currently exists and as it would exist under I-502 takes pains in differentiating between those over 21 and those under 21. No criminal charges flow from this statute.

Section 37 of I-502 amends RCW 46.61.506. This statute concerns what evidence may be considered and how it is to be presented. Notice that in I-502’s section 506, it completely lacks any mention of 0.00 ng/ml. This is significant because this statute talks about what evidence can be used to show impairment. 506 as it currently exists can be found here: http://apps.leg.wa.gov/rcw/default.aspx?cite=46.61.506. No criminal charges flow from this statute. If you don’t read anything else in this section, please read 4(c). It states:

“Nothing in this section shall be deemed to prevent the subject of the test from challenging the reliability or accuracy of the test, the reliability or functioning of the instrument, or any maintenance procedures . . . . such challenges may be considered by the trier of fact in determining what weight to give to the test result.”

Now we finally come to section 34 of I-502. It begins on page 56. It amends RCW 46.61.503 and criminal charges do flow from this statute. The statute as it currently exists can be found here: http://apps.leg.wa.gov/rcw/default.aspx?cite=46.61.503. This statute basically says that even if a minor under 21 is not impaired, he can still be charged with a violation of this section if he has more than 0.00ng/ml. This section cares nothing about impairment, and is not RCW 46.61.502 and 504’s equivalent. Read subsection 4 of this section very carefully. It states: “A violation of this section is a misdemeanor.” The title of this section as it currently exists is: “Driver Under 21 Consuming Alcohol.” Considering the products on the market now that contain alcohol and that are legally available to minors, the amendments to this section proposed by I-502 are appropriate. They will discourage minors from using marijuana, hanging around friends who use marijuana, and driving after using marijuana.

What is the difference between a violation of this 503 and a violation of 502/504? A misdemeanor has a maximum sentence of 90 days and a $1000 fine. This misdemeanor here is often resolved without a conviction, especially on a first offense. There is no mandatory minimum amount of jail time either. What are the penalties for violating 502/504? They are very severe. They can be found here: http://www.courts.wa.gov/newsinfo/index.cfm?fa=newsinfo.displayContent&theFile=content/duigrid/index. A DUI is a gross misdemeanor.

There you have it. I-502 does not create a Driving While Under the Influence Charge with a 0ng/ml per se limit.

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  • Ravarshi

    how does one tell how “high you are” what instrument is used to determine whether you’re 5ng or more/less, and how does it work, i’ve been smoking MJ for 10ish years now, and with that, i would assume that this could skew the tests, like it would with a UA (if i recall correctly, i cannot piss clean from a UA even after staying sober for a month or two because i have THC stored in my fat cells)

  • I’m guessing that insurance companies treat a 503 conviction the same as a 502/504 conviction with regards to increased premiums… And I doubt employers checking criminal background will appreciate the difference.
    And there are medical patients under 21 who use cannabis under the advise of their doctor… So is a 20 year old medical patient who medicated yesterday more of a risk than a 21 year old recreational user who smoked 3 hours ago??

  • Let me see if I have this right…looking at the current law…
    Section 502 is the DUI section, which sets a limit of 0.08 for everyone who is driving.
    Section 503 adds penalties for those under 21 who have over 0.02 of alcohol and are driving or have physical control of a vehicle.
    Section 504 is the physical control section, which has a limit of 0.08 for anyone who is in physical control of a vehicle.
    So essentially 502=dui,504=physical control, 503=dui/physical control for under 21 who are above 0.02 but under 0.08.

    So even if 503 has a lesser penalty, how do you argue that it is not a dui? Especially when there are signs and awareness campaigns that say therebis zero tolerance for drinking & driving for those under 21?

  • If 503 is not about DUIs, then what IS it about? Your article is so difficult to follow despite your efforts to spell it out because you leave out bits of information that are needed for clarity.
    Why don’t you tell us specifically what 502, 503, and 504 do?

  • Tylenol counts as a drug too. If you take a Tylenol for your headache but swerve a little bit because you were changing the radio station are you going to get a DUI for tylenol?

  • If you cant figure out how to copy text from a pdf, why would I trust your assessment of this law?

  • real people for real reform

    rich? what does being rich have to do with anything? you’re a confused person who is following the herd…bahhhh

    I-502 = DUI’s for anybody who smokes more then just a joint on the weekend…keep following that carrot the man is dangling in front of you, its going to take you straight to jail for a bowl you smoked the night before!

    VOTE NO on I-502!!!

  • P

    your articel is fine and well, but you are mis-led about the 18 and over part of the the law. the 18 and over rule applies to NON-PATIENTS (rec users) at the bottom of the innititive I-502 it clearly states what parts of I 502 will be added to the current innititive 69.50 and it is mostly concered with the structure and licincing and reg. of the cannabis outlets, and the producers and processors.

  • jim dandy

    lol

  • jim dandy

    l0l

  • The GS Conspiracy

    Because graduate school costs money?

  • jim dandy

    i gotta degree in kikin mimis ass

  • jim dandy

    listen braniac if you know so fukin much how come you’re no rich?

  • jim dandy

    who cares about limits. this is about freedom

  • jim dandy

    when its legal we’ll tweak it a little .stop reading crap and light 1 up .you seem uptite .we’ll be blowin smoke in your face in10 days lol

  • justatoy

    It would be even worse if the person was involved in an accident. Good points there.

  • justatoy

    Almost every weed smoker out there would test positive for 5 ng. It doesn’t take that much to get there.

  • I agree.

  • And you are thinking that all cops use the same test, lab. or what ever?? How do you know? Have you ever watched a blood sample being tested? It is either ACTIVE T.H.C. or metabolites. Not both. Metabolites are after brake down.

  • That’s right, this is obfuscation of the issue. You know exactly what he said.

  • Thank you. Exactly right.

  • And as I see it it does create a 0.0 tolerance for those 18 to 20. What is good about that?

  • No it does not create. What it does create is a five nano-grams per liter limit, that I don’t think the law thugs have a right to know in the first place. Unless I accidentally killed someone. Then test me now and see what my concentration is and test my driving skills. I dare you! Any time anywhere I will out drive you.

  • I have been interested in finding out more about the field test law enforcement would use to enforce I 502. Recently a radio show host on cannabis Nation Radio had the procedure done to determine the amount of cannabis in his system. he ended up with a $700.00 bill for his efforts.
    At that rate 20 random field tests could potentially be the price of a car.
    There is no precedent for the wide testing of the testing procedure, and most likely many may get acquitted, due to the lack of evidence the field tests are actually accurate.
    They can’t expect people to not question the science, and be guinea pigs until they “tweak it out.”
    Any information about the test specifically would be appreciated for more research.

  • confusedaboutthis

    Does this mean that a person under age 21 who is found to have a thc blood level between 0 and 5 may have his or her license revoked for 3 months but can’t be convicted for DUID using this blood level?

  • Revised Code of Washington: “46.61.502(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:
    (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.”

    Mimi- Just in case you don’t understand what this language means I will translate for you. Any drug refers to marijuana as well and in this context it means that if the test results show levels of active THC or inactive THC-COOH above zero nanograms per milliliter of whole blood volume (0.00000000000 ng/mL) you are by letter of the law driving under the influence and impaired. Meaning test results showing any amount of THC in your system mean the driver is de facto guilty of DUI and that is enough for a jury to convict.