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Post I-502 Passage, Bonney Lake to Follow Evolving Decriminalization Process Beginning Dec. 6

Because the state Liquor Control Board has indicated it will take a year to fully implement rules for marijuana sales and taxation, however, a lot of details still remain unclear.

After Dec. 6, adults over age 21 will be able to carry up to one ounce of marijuana for personal use, in accordance to the provisions of I-502.

This was information helpfully provided by the Seattle Police Department shortly after elections returns from Nov. 6 indicated the initiative was headed for passage, and Bonney Lake law enforcement intends to follow those guidelines.

According to Bonney Lake Police Chief Dana Powers, come Dec. 6, police officers will cite anyone 21 years and older who is found to carry over the quantity limit of one ounce, and anyone underaged.

Over in neighboring Enumclaw, "any pending court cases will be dismissed if the defendant is over 21 and had less than the quantity amount," said City Administrator Mike Thomas said. "This puts us in line with the law and with what other jurisdictions are doing."

However, according to Powers, that's not the case in Bonney Lake. "As far as I know that they will not be dismissed as it was illegal at the time of the original case," she wrote in an email to Patch.

Asked if she knew quantitively what the impact of the decriminalization process would be and whether it'd make a dent in the city's typical case load of marijuana-related violations, "this remains to be seen and we will not be able to see what the trend will be for at least a year if not two," she said.

Beyond Dec. 6, municipalities across the state are waiting for further information and direction. The state Liquor Control Board has said it would take up to a full year to fully implement the rules for marijuana sales and taxation.

A recent meeting Gov. Chris Gregoire had with Deputy Attorney General James Cole at the U.S. Department of Justice regarding the initiative that illustrated how unsettled the issues surrounding the initiative were. A statement from Gregoire's office dated Nov. 13 indicated: "The governor asked the Department of Justice to clarify their position as many questions remain. In turn, as the state begins the implementation process, we will convey to them any problems or concerns."

The DUI Provision

One of the more controversial aspects of I-502 that drew opposition from pro-legalization groups centered around the qualifications around when someone would be cited and arrested for driving under the influence of marijuana. A standard of 5 ng/mL of active THC in the bloodstream was set to determine whether someone might be under the influence.

Sensible Washington, one pro-legalization group that opposed I-502, warns that the 'per se' qualification means law enforcement will base guilt on blood level of THC and not impairment and could potentially "ensnare" innocent people -- particularly medical marijuana patients. The rationale is that THC can linger in the blood stream hours after consumption when an individual no longer exhibits signs of impairment.

Countering that concern is New Approach Washington, responsible for the I-502 campaign, who in a fact sheet (see attached) points out there is already a 'per se' provision as it relates to alcohol offenses. "Having a breath/blood alcohol concentration of 0.08 is 'per se' (in and of itself) DUI, even if you are an experienced drinker and feel you can drive safely at 0.08 BAC."

The fact sheet also details the difference between active THC and the inactive carboxy-THC: levels of the former drop significantly a few hours after consumption; carboxy-THC, which has been used in the past to convict marijuana users, is not to be considered in determining THC concentration for purposes of the per se limit.

The Courier-Herald reports that until further guidance comes from the state level, there are no big changes to how Enumclaw and neighboring Bonney Lake arrest and prosecute cases. Enumclaw City Prosecutor Mike Reynolds told The Courier-Herald that in the past, the city never relied solely on the technical data gathered during a field sobriety test but also considered degree of impairment for an individual driver. In the same story, Powers corroborated that officers generally assess whether a person was driving erractically before they decide to pull someone over. Observing their behaviors and field sobriety tests could follow and deciding whether a blood draw is necessary is subsequent to this.

Ed Note: The statement above paraphrasing a Courier-Herald interview with Enumclaw City Prosecutor Mike Reynolds was changed from an earlier version to clarify that there is not so much a preference for assessing individual impairment over the per se legal limit but that historically the city has never relied only on blood alcohol data with regards to DUI charges.

The current lack of certainty prompted Sensible Washington to outline some cautionary tips for those who would follow the legal provisions of I-502. They include:

  • Never drive with a cannabis-friendly bumper sticker
  • Do a quick inspection of your vehicle, making sure there are no obvious problems, like broken taillights.
  • Make sure that you do not smell like cannabis when you leave the home – use deodorant, perfume, etc., even if you haven’t smoked in hours. The slightest scent could give the officer reason to test your blood, and to assume you’ll be above the 5, or 0ng/ml limits.
  • Be cautious when driving with any amount of cannabis on your person, even if it’s under an ounce. Possessing even a gram is enough probable cause for an officer to search you, and test your blood.
  • Understand that even if you consumed cannabis days ago, you may not be safe, and should take these precautions. Active THC lingers in the body for days, and we have no home test for individuals to determine if they’re below 5ng/ml before they drive.

Follow news from the Washington State Liquor Control Board as implementation progresses, and view the full text of I-502 at www.liq.wa.gov/marijuana/I-502.

Daniel Nash November 27, 2012 at 09:45 PM
Daniel Nash from the Courier-Herald here. Good story, and thank you for linking back to us. I just need to address the passage paraphrasing Mike Reynolds, in case someone misinterprets it to mean the city doesn't always prosecute DUIs a driver is over a legal limit. His quote in my article does sound a bit like he's saying the city justice system emphasizes subjective judgements of impairment over the per se legal limit; it's a thought I had in the moment and it may be something I should clarify in my own article. But based on the RCW covering DUI arrests, the context of the full conversation, and the fact that he and I were topic-jumping between the police and courts throughout our interview, I don't think he was suggesting impairment always matters more than the per se limit in Enumclaw Court; the city wouldn't not prosecute someone with a 0.10 BAC if they seemed unaffected by the alcohol. On the other hand, the case wouldn't have made it to court (or to the sobriety testing phase, for that matter) in the first place if the defendant hadn't shown some sign of impairment, real or not, while driving or during a police stop. I believe the point Reynolds was trying to make was that legal limits aren't an impermeable barrier between the people who are and are not prosecuted and convicted for DUI.
Daniel Nash November 27, 2012 at 09:48 PM
DUI law is complicated, even for lawyers if they don't have hands-on experience with it. But my amateur understanding is this: In DUI cases, the spirit of the law is that impairment behind the wheel is a crime. The trouble with making impairment in a specific situation a crime is that—unlike theft, assault, or murder—prosecutors aren't necessarily proving an action, they're proving a chemical state of mind, which is a point that can only be made indirectly at best. That's partially why the per se legal limit—0.15 decades ago and 0.08 now—is in place; it's considered a reasonable threshold for assuming impairment in the average adult (it's also partially a compromise made for legal substances). Up until a few years ago, BACs could actually be (relatively) easily thrown out of WA courts due to a precedent of proven "finickiness" of the standard equipment used in police stations. That didn't stop DUI court cases from being prosecuted based on a subjective judgment of impairment.
Daniel Nash November 27, 2012 at 09:48 PM
The subjective judgment of impairment actually comes up in two places. The first is during a police stop, when an officer decides to request participation in field sobriety tests; if the officer gets to the point of asking, he's acting on an assumption of impairment and will arrest and process a driver who refuses to participate. Second, it comes up during trial, especially if the BAC is below the limit or has been thrown out as evidence. If BAC is thrown out of court (and maybe even when it isn't, I really don't know in that case) prosecution will typically bring in an expert witness to testify that certain behaviors or actions signify a strong likelihood of impairment, and they may even testify that a certain action on a field sobriety test indicates a BAC in a certain range. Anyway, that's my only concern in an otherwise well-written article.
April Chan November 27, 2012 at 09:57 PM
Thanks for the clarifications, Daniel. I've reworded my paraphrasing in the article above as well. DUI law is undoubtedly complicated - probably why I keep hearing these radio ads for DUI lawyers on what to do if you're pulled over and how to best get your case dismissed.
Lauren Padgett November 28, 2012 at 12:07 AM
Thanks for all the great information Daniel! It's a complicated issue for sure, so this helps.

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