marijuana : driving under the influence and deferred prosecution

Paul Weatherly MA, CDP

State Liquor Control Board rules and regulations regarding the distribution and use of marijuana

Changes to rules of the road RCW 46.61 regarding DUI offenses involving marijuana use prior to or while in control of a motor vehicle.

Problems with enforcement of medical marijuana law and lack of reconciliation with general legalization of “recreational” marijuana

Problems doing assessments and diagnostics for deferred prosecution and findings of dependency.

Resolution of various ethical dilemmas regarding diagnosis for cannabis dependency.

I-502 authorizes the state liquor control board to regulate and tax marijuana for persons twenty-one years of age and older, and add a new threshold for driving under the influence of marijuana.

"Marijuana" or "marihuana" means all parts of the plant Cannabis, whether growing or not, with a THC concentration greater than 0.3 percent on a dry weight basis; the seeds thereof; the resin extracted from any part of the plant; and every compound, manufacture, salt, derivative, mixture, or preparation of the plant, its seeds or resin.

The term does not include the mature stalks of the plant, fiber produced from the stalks, oil or cake made from the seeds of the plant, any other compound, manufacture, salt, derivative, mixture, or preparation of the mature stalks (except the resin extracted therefrom), fiber, oil, or cake, or the sterilized seed of the plant which is incapable of germination.

"Marijuana-infused products" means products that contain marijuana or marijuana extracts and are intended for human use. The term "marijuana-infused products" does not include useable marijuana.

THC concentration" means percent of delta-9 tetrahydrocannabinol content per dry weight of any part of the plant Cannabis, or per volume or weight of marijuana product.

"Useable marijuana" means dried marijuana flowers. The term "useable marijuana" does not include marijuana-infused products.

"THC concentration" means nanograms of delta-9 tetrahydrocannabinol per milliliter of a person's whole blood. THC concentration does not include measurement of the metabolite THC-COOH, also known as carboxy-THC.

Determining the nature, form, and capacity of all containers to be used by licensees to contain marijuana, useable marijuana, and marijuana-infused products, and their labeling requirements, to include but not be limited to:

(a) The business or trade name and Washington state unified business identifier number of the licensees that grew, processed, and sold the marijuana, useable marijuana, or marijuana-infused product;

(b) Lot numbers of the marijuana, useable marijuana, or marijuana-infused product;

(c) THC concentration of the marijuana, useable marijuana, or marijuana-infused product;

Edible, inhalable, drinkable or transdermal

(d) Medically and scientifically accurate information about the health and safety risks posed by marijuana use; and

(e) Language required by RCW 69.04.480;

Drugs — Misbranding for failure to state content of

habit forming drug.

A drug or device shall be deemed to be misbranded if it is for use by human beings and contains any quantity of …..cannabis….. marijuana,…….; or any chemical derivative of such substance, which derivative has been designated as habit forming by regulations promulgated under section 502(d) of the federal act; unless its label bears the name and quantity or proportion of such substance or derivative and in juxtaposition therewith the statement "Warning -- May be habit forming."

(1) Retail outlets shall sell no products or services other than useable marijuana, marijuana-infused products, or paraphernalia intended for the storage or use of useable marijuana or marijuana-infused products.

(2) Licensed marijuana retailers shall not employ persons under twenty-one years of age or allow persons under twenty-one years of age to enter or remain on the premises of a retail outlet.

(3) Licensed marijuana retailers shall not display any signage in a window, on a door, or on the outside of the premises of a retail outlet that is visible to the general public from a public right-of-way, other than a single sign no larger than one thousand six hundred square inches identifying the retail outlet by the licensee's business or trade name.

(4) Licensed marijuana retailers shall not display useable marijuana or marijuana-infused products in a manner that is visible to the general public from a public right-of-way.

(5) No licensed marijuana retailer or employee of a retail outlet shall open or consume, or allow to be opened or consumed, any useable marijuana or marijuana-infused product on the outlet premises.

(6) The state liquor control board shall fine a licensee one thousand dollars for each violation of any subsection of this section. Fines collected under this section must be deposited into the dedicated marijuana fund created under section 26 of this act.

The following acts, when performed by a validly licensed marijuana retailer or employee of a validly licensed retail outlet in compliance with rules adopted by the state liquor control board to implement and enforce this act, shall not constitute criminal or civil offenses under Washington state law:

Delivery, distribution, and sale, on the premises of the retail outlet, of any combination of the following amounts of useable marijuana or marijuana-infused product to any person twenty-one years of age or older:

(a) One ounce of useable marijuana; By contrast medical marijuana law allows a

qualifying patient to have 24 ounces during any 60 day period

(b) Sixteen ounces of marijuana-infused product in solid form;

By contrast medical marijuana law does not have provisions regarding amounts for edible or externally applied marijuana infused products.

(c) Seventy-two ounces of marijuana-infused product in liquid form.

By contrast medical marijuana law does not have provisions regarding amounts of liquid forms of marijuana infused products.

(1) There shall be a fund, known as the dedicated marijuana fund, which shall consist of all marijuana excise taxes, license fees, penalties, forfeitures, and all other moneys, income, or revenue received by the state liquor control board from marijuana-related activities. The state treasurer shall be custodian of the fund.

RCW 46.20.308 and 2008 c 282 s 2 are each amended to read as follows:

(1) Any person who operates a motor vehicle within this state is deemed to have given consent, subject to the provisions of RCW 46.61.506, to a test or tests of his or her breath or blood for the purpose of determining the alcohol concentration, THC concentration, or presence of any drug in his or her breath or blood if arrested for any offense where, at the time of the arrest, the arresting officer has reasonable grounds to believe the person had been driving or was in actual physical control of a motor vehicle while under the influence of intoxicating liquor or any drug or was in violation of RCW 46.61.503. Neither consent nor this section precludes a police officer from obtaining a search warrant for a person's breath or blood.

If the driver submits to the test and the test is administered, the driver's license, permit, or privilege to drive will be suspended, revoked, or denied for at least ninety days if:

(i) The driver is age twenty-one or over and the test indicates either that the alcohol concentration of the driver's breath or blood is 0.08 or more or that the THC concentration of the driver's blood is 5.00 or more

The driver is under age twenty-one and the test indicates either that the alcohol concentration of the driver's breath or blood is 0.02 or more or that the THC concentration of the driver's blood is above 0.00;

The blood analysis of the person's THC concentration shall be based upon nanograms per milliliter of whole blood.

(1) A person is guilty of driving while under the influence of intoxicating liquor, marijuana, or any drug if the person drives a vehicle within this state: The person has, within two hours after driving, a THC concentration of 5.00 or higher as shown by analysis of the person's blood made under RCW 46.61.506; or While the person is under the influence of or affected by intoxicating liquor, marijuana, or any drug; or While the person is under the combined influence of or affected by intoxicating liquor, marijuana, and any drug.

(b) The blood analysis of the person's THC concentration shall be based upon nanograms per milliliter of whole blood.(if the person's …the person's THC concentration is less than 5.00, it is evidence that may be considered with other competent evidence in determining whether the person was under the influence of intoxicating liquor or any drug)

(1) Notwithstanding any other provision of this title, a person is guilty of driving or being in physical control of a motor vehicle after consuming alcohol or marijuana if the person operates or is in physical control of a motor vehicle within this state and the person:

(a) Is under the age of twenty-one; and

(b) Has, within two hours after operating or being in physical control of the motor vehicle, either:

(i) An alcohol concentration of at least 0.02 but less than the concentration 0.08, as shown by analysis of the person's breath or blood

(ii) A THC concentration above 0.00 but less than the concentration 5.00, as shown by analysis of the person's blood

1. Driving 10MPH or more under a posted speed limit.2. Staying stopped at a stop sign or blinking red light after

coming to a complete stop for longer than 3 to 5 minutes3. Coming to a complete stop and staying stopped for

longer than 3 to 5 minutes at a blinking yellow light4. Changing lanes without signaling the change.5. Swerving/drifting in traffic.6. Leaving a parking area at night without the use of

headlights7. Not being able to remember the number of steps an

arresting officer requests the driver to take in a straight line.

I-502 adds a per se threshold for THC and distinguishes THC from THC-COOH. It does not change the legal requirements that must be met before a police officer can take a driver to a medical professional for a blood test.

I-502 establishes a per se marijuana DUI cut-off of 5 nanograms of active THC metabolite per milliliter of whole blood (5 ng/mL), analogous to the per se 0.08 BAC cut-off for alcohol.

I-502 clarifies that THC-COOH, the inactive marijuana metabolite also known as carboxy-THC that is sometimes used to convict marijuana users of DUI under current law, is not to be considered in determining THC concentration for purposes of the per se limit.

11-COOH-THC is formed in the body by oxidation of the active metabolite 11-Hydroxy-THC by liver enzymes. It is then metabolized further by conjugation with glucuronide, forming a water-soluble congener which can be more easily excreted by the body.

11-COOH-THC is not psychoactive itself, but has a long half-life in the body of up to several days (or even weeks in very heavy users), making it the main metabolite tested for when blood or urine testing for cannabis use.

More sensitive tests are able to distinguish between 11-OH-THC and 11-COOH-THC, which can help determine how recently cannabis was consumed.

If only 11-COOH-THC is present then the cannabis was used some time ago and any impairment in cognitive ability or motor function will have dissipated.

Whereas, if both 11-OH-THC and 11-COOH-THC are present then the cannabis was consumed more recently and motor impairment may still be present.

Some jurisdictions where cannabis use is decriminalized or permitted under some circumstances use such tests when determining whether drivers were legally intoxicated and therefore unfit to drive, with the comparative levels of THC, 11-OH-THC and 11-COOH-THC being used to derive a "blood cannabis level" analogous to the blood alcohol level used in prosecuting impaired drivers.

On the other hand in jurisdictions where cannabis is completely illegal, any detectable levels of 11-COOH-THC may be deemed to constitute driving while intoxicated, even though this approach has been criticized as tantamount to prohibition of "driving whilst being a regular user of cannabis" regardless of the presence or absence of any actual impairment that might impact on driving performance.

While 11-COOH-THC does not have any psychoactive effects in its own right, it may still have a role in the analgesic and anti-inflammatory effects of cannabis, and has also been shown to moderate the effects of THC itself which may help explain the difference in subjective effects seen between occasional and regular users of cannabis.

Half Life 11-OH-THC is one to two hours

Half Life 11-COOH-THC is 5 to 6 days

Tetrahydrocannabinolic acid (THCA, 2-COOH-THC), is a biosynthetic precursor of tetrahydrocannabinol (THC), the active component of Cannabis. THCA is found in variable quantities in fresh, undried cannabis, but is progressively decarboxylated to THC with drying, and especially under intense heating such as when cannabis is smoked.

Will convert under temperature to D-9THC or D-8THC

Tetrahydrocannabivarin (THCV, THV) is a homologue of tetrahydrocannabinol (THC) having a propyl (3-carbon) side chain. This terpeno-phenolic compound is found naturally in Cannabis, sometimes in significant amounts. The psychoactive effects of THCV in Cannabis preparations are not well characterized.

THCV has been shown to be a CB1 receptor antagonist, i.e. it blocks the effects of Hydroxy-THC.

It is also commonly used as a biomarker in drug testing along with THCV, to distinguish between prescribed synthetic Delta-9-tetrahydrocannabinol, such as Marinol, and cannabis plant material which may also be used by patients.

Cannabis is often consumed for its psychoactive and physiological effects, which can include heightened mood or euphoria, relaxation, and increase in appetite. Unwanted side-effects can sometimes include a decrease in short-term memory, dry mouth, impaired motor skills, reddening of the eyes, and feelings of paranoia or anxiety

Common symptoms of alcohol intoxication include slurred speech, euphoria, impaired balance, loss of muscle coordination, flushed face, dehydration, vomiting, reddened eyes, reduced inhibitions, and erratic behavior. Sufficiently high levels of blood-borne alcohol will cause coma and death from the depressive effects of alcohol upon the central nervous system.

Medical MJ law allows a person to have up to 24 ounces in a 60 day period while Recreational MJ users can only have up to one ounce.

Use of medical MJ does not constitute an affirmative defense for driving under the influence

Medical MJ law does not distinguish between 11-OH-THC and 11-COOH-THC.

Recreational MJ law regulates sales and enforces a minimum age (21) for possession, growing, processing and purchasing while Medical MJ does not regulate sales or have any age restrictions for possession, growing processing and purchasing.

Without age restrictions on access to medical marijuana law provisions in recreational marijuana law to reduce use and access to marijuana by teens is unenforceable.

Anyone over the age of 13 can refuse medical attention or seek medical advise without a parents permission. Since marijuana is not prescribed the qualified health care provider is only giving advice or a recommendation regarding the therapeutic use of marijuana

Medical MJ law allows for qualifying patients to grow marijuana, produce edible marijuana infused products and infuse marijuana into products for transdermal application without regulations while recreational marijuana law provides regulations on growing and production of edible marijuana infused products that include some production safety guidelines.

Medical MJ law does not create any mechanisms for licensing dispensaries while recreational marijuana law has regulations and licensing requirements including fees and permits with restrictions on advertising and signage.

While many medical MJ establishments have business licenses and permits, they are not allowed under WA state or Federal law, subsequently they are subject to random closures by state or federal authorities. Recreational MJ stores are regulated as businesses that are required to collect sales taxes.

Without FDA approval or changes in the Uniform Substance Control Act changing MJ from a schedule I to schedule II drug, marijuana cannot be considered a medication that is protected under laws regulating the sale and use of prescription or legend drugs. Therefore MJ would be considered a food additive or diet supplement without FDA approval or recognition of any potential therapeutic benefits.

Neither medical MJ law or recreational MJ law restrict the use of marijuana in the presence of minor children or access to marijuana to minor children in the home.

Recreational MJ only use restriction is that it cannot be used in public and that includes in a vehicle at which point even if the vehicle is parked this is probable cause for suspicion of DUI.

The legislature is currently reviewing the need to have to separate laws regarding MJ and whether or not I-502 will allow for qualifying patients to have monetary compensations when purchasing MJ and a SLCB marijuana store i.e. not having to pay sales tax.

While medical MJ law requires MJ to be used for a terminal or debilitating condition I-502 does not require that marijuana be used solely for recreational purposes.

As of today the legislature has chosen not to take any actions to rectify the differences between the two MJ laws.

Before entry of an order deferring prosecution, a petitioner shall be advised of his or her rights as an accused and execute, as a condition of receiving treatment, a statement that contains:

(a) An acknowledgment of his or her rights; (b) an acknowledgment and waiver of the right

to testify, the right to a speedy trial, the right to call witnesses to testify, the right to present evidence in his or her defense, and the right to a jury trial;

(b) an acknowledgment and waiver of the right to testify, the right to a speedy trial, the right to call witnesses to testify, the right to present evidence in his or her defense, and the right to a jury trial;

(c) a stipulation to the admissibility and sufficiency of the facts contained in the written police report; and

(d) an acknowledgment that the statement will be entered and used to support a finding of guilty if the court finds cause to revoke the order granting deferred prosecution.

The petitioner shall also be advised that he or she may, if he or she proceeds to trial and is found guilty, be allowed to seek suspension of some or all of the fines and incarceration that may be ordered upon the condition that he or she seek treatment and, further, that he or she may seek treatment from public and private agencies at any time without regard to whether or not he or she is found guilty of the offense charged.

He or she shall also be advised that the court will not accept a petition for deferred prosecution from a person who: (i) Sincerely believes that he or she is innocent of the charges; (ii) sincerely believes that he or she does not, in fact, suffer from alcoholism, drug addiction, or mental problems; or (iii) in the case of a petitioner charged under chapter 9A.42 RCW, sincerely believes that he or she does not need child welfare services.

Before entering an order deferring prosecution, the court shall make specific findings that:

(a) The petitioner has stipulated to the admissibility and sufficiency of the facts as contained in the written police report;

(b) the petitioner has acknowledged the admissibility of the stipulated facts in any criminal hearing on the underlying offense or offenses held subsequent to revocation of the order granting deferred prosecution;

(c) the petitioner has acknowledged and waived the right to testify, the right to a speedy trial, the right to call witnesses to testify, the right to present evidence in his or her defense, and the right to a jury trial; and (d) the petitioner's statements were made knowingly and voluntarily. Such findings shall be included in the order granting deferred prosecution.

Many health care providers believe that the use of a psychoactive substance by a qualifying patient reduces the abuse liability of a drug even though the drug is habit forming and discontinuation may result in physiological withdrawal symptoms. Subsequently diagnosing a person who has documentation as a qualifying medical MJ user as Cannabis dependent is more difficult without specific information showing psycho-social impairment?

Can person who has documentation as a qualifying medical MJ user be diagnosed as Cannabis dependent and qualify for deferred prosecution while continuing to use MJ of medicinal reasons?

Can a person with a history of addiction treatment for substance use related disorders that are not Cannabis based be diagnosed as Cannabis dependent if using medical MJ as recommended?

Should this assessment outcome determine child custody issues?

A person suspected of driving under the influence with a 0.05 BAC and 3.00 THC ng/ml of whole blood could be convicted of a DUI. But how and would they be eligible for Deferred prosecution without other significant psycho-social problems?

Even though THC-COOH cannot be used as evidence for DUI, it can be used as evidence to determine the presence of cannabis dependency? If so should the courts recognize this for a petition for deferred prosecution if the THC level was under 5.00 ng/ml?