Washington State Marijuana Legalization Initiative Text

Washington I-502 (Marijuana Legalization Initiative)

Below is the text for State of Washington I-502 (Marijuana Legalization Initiative). This is going to be the biggest news of 2012 in the marijuana world, so I invite marijuana consumers worldwide to take a look at it. Will marijuana legalization become reality in Washington State in 2012? Or will the same problems that doomed marijuana legalization efforts in California in 2010 become issues for the Washington State campaign? I hope not, but only time will tell!

Initiative Measure No. 502 filed July 8, 2011
AN ACT Relating to marijuana; amending RCW 69.50.101, 69.50.401,
69.50.4013, 69.50.412, 69.50.4121, 69.50.500, 46.20.308, 46.61.502,
46.61.504, 46.61.50571, and 46.61.506; reenacting and amending RCW
69.50.505, 46.20.3101, and 46.61.503; adding a new section to chapter
46.04 RCW; adding new sections to chapter 69.50 RCW; creating new
sections; and prescribing penalties.
BE IT ENACTED BY THE PEOPLE OF THE STATE OF WASHINGTON:
PART I
INTENT
NEW SECTION. Sec. 1. The people intend to stop treating adult
marijuana use as a crime and try a new approach that:
(1) Allows law enforcement resources to be focused on violent and
property crimes;
(2) Generates new state and local tax revenue for education,
health care, research, and substance abuse prevention; and
(3) Takes marijuana out of the hands of illegal drug organizations
and brings it under a tightly regulated, state-licensed system similar
to that for controlling hard alcohol.
This measure 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.
PART II
DEFINITIONS
Code Rev/AI:crs 2 I-2465.1/11
Sec. 2. RCW 69.50.101 and 2010 c 177 s 1 are each amended to read
as follows:
Unless the context clearly requires otherwise, definitions of
terms shall be as indicated where used in this chapter:
(a) “Administer” means to apply a controlled substance, whether by
injection, inhalation, ingestion, or any other means, directly to the
body of a patient or research subject by:
(1) a practitioner authorized to prescribe (or, by the
practitioner’s authorized agent); or
(2) the patient or research subject at the direction and in the
presence of the practitioner.
(b) “Agent” means an authorized person who acts on behalf of or at
the direction of a manufacturer, distributor, or dispenser. It does
not include a common or contract carrier, public warehouseperson, or
employee of the carrier or warehouseperson.
(c) “Board” means the state board of pharmacy.
(d) “Controlled substance” means a drug, substance, or immediate
precursor included in Schedules I through V as set forth in federal or
state laws, or federal or board rules.
(e)(1) “Controlled substance analog” means a substance the
chemical structure of which is substantially similar to the chemical
structure of a controlled substance in Schedule I or II and:
(i) that has a stimulant, depressant, or hallucinogenic effect on
the central nervous system substantially similar to the stimulant,
depressant, or hallucinogenic effect on the central nervous system of
a controlled substance included in Schedule I or II; or
(ii) with respect to a particular individual, that the individual
represents or intends to have a stimulant, depressant, or
hallucinogenic effect on the central nervous system substantially
similar to the stimulant, depressant, or hallucinogenic effect on the
central nervous system of a controlled substance included in Schedule
I or II.
(2) The term does not include:
(i) a controlled substance;
Code Rev/AI:crs 3 I-2465.1/11
(ii) a substance for which there is an approved new drug
application;
(iii) a substance with respect to which an exemption is in effect
for investigational use by a particular person under Section 505 of
the federal Food, Drug and Cosmetic Act, 21 U.S.C. Sec. 355, to the
extent conduct with respect to the substance is pursuant to the
exemption; or
(iv) any substance to the extent not intended for human
consumption before an exemption takes effect with respect to the
substance.
(f) “Deliver” or “delivery,” means the actual or constructive
transfer from one person to another of a substance, whether or not
there is an agency relationship.
(g) “Department” means the department of health.
(h) “Dispense” means the interpretation of a prescription or order
for a controlled substance and, pursuant to that prescription or
order, the proper selection, measuring, compounding, labeling, or
packaging necessary to prepare that prescription or order for
delivery.
(i) “Dispenser” means a practitioner who dispenses.
(j) “Distribute” means to deliver other than by administering or
dispensing a controlled substance.
(k) “Distributor” means a person who distributes.
(l) “Drug” means (1) a controlled substance recognized as a drug
in the official United States pharmacopoeia/national formulary or the
official homeopathic pharmacopoeia of the United States, or any
supplement to them; (2) controlled substances intended for use in the
diagnosis, cure, mitigation, treatment, or prevention of disease in
individuals or animals; (3) controlled substances (other than food)
intended to affect the structure or any function of the body of
individuals or animals; and (4) controlled substances intended for use
as a component of any article specified in (1), (2), or (3) of this
subsection. The term does not include devices or their components,
parts, or accessories.
Code Rev/AI:crs 4 I-2465.1/11
(m) “Drug enforcement administration” means the drug enforcement
administration in the United States Department of Justice, or its
successor agency.
(n) “Immediate precursor” means a substance:
(1) that the state board of pharmacy has found to be and by rule
designates as being the principal compound commonly used, or produced
primarily for use, in the manufacture of a controlled substance;
(2) that is an immediate chemical intermediary used or likely to
be used in the manufacture of a controlled substance; and
(3) the control of which is necessary to prevent, curtail, or
limit the manufacture of the controlled substance.
(o) “Isomer” means an optical isomer, but in RCW 69.50.101(((r)))
(x)(5), 69.50.204(a) (12) and (34), and 69.50.206(b)(4), the term
includes any geometrical isomer; in RCW 69.50.204(a) (8) and (42), and
69.50.210(c) the term includes any positional isomer; and in RCW
69.50.204(a)(35), 69.50.204(c), and 69.50.208(a) the term includes any
positional or geometric isomer.
(p) “Lot” means a definite quantity of marijuana, useable
marijuana, or marijuana-infused product identified by a lot number,
every portion or package of which is uniform within recognized
tolerances for the factors that appear in the labeling.
(q) “Lot number” shall identify the licensee by business or trade
name and Washington state unified business identifier number, and the
date of harvest or processing for each lot of marijuana, useable
marijuana, or marijuana-infused product.
(r) “Manufacture” means the production, preparation, propagation,
compounding, conversion, or processing of a controlled substance,
either directly or indirectly or by extraction from substances of
natural origin, or independently by means of chemical synthesis, or by
a combination of extraction and chemical synthesis, and includes any
packaging or repackaging of the substance or labeling or relabeling of
its container. The term does not include the preparation,
compounding, packaging, repackaging, labeling, or relabeling of a
controlled substance:
Code Rev/AI:crs 5 I-2465.1/11
(1) by a practitioner as an incident to the practitioner’s
administering or dispensing of a controlled substance in the course of
the practitioner’s professional practice; or
(2) by a practitioner, or by the practitioner’s authorized agent
under the practitioner’s supervision, for the purpose of, or as an
incident to, research, teaching, or chemical analysis and not for
sale.
(((q))) (s) “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.
(((r))) (t) “Marijuana processor” means a person licensed by the
state liquor control board to process marijuana into useable marijuana
and marijuana-infused products, package and label useable marijuana
and marijuana-infused products for sale in retail outlets, and sell
useable marijuana and marijuana-infused products at wholesale to
marijuana retailers.
(u) “Marijuana producer” means a person licensed by the state
liquor control board to produce and sell marijuana at wholesale to
marijuana processors and other marijuana producers.
(v) “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.
(w) “Marijuana retailer” means a person licensed by the state
liquor control board to sell useable marijuana and marijuana-infused
products in a retail outlet.
(x) “Narcotic drug” means any of the following, whether produced
directly or indirectly by extraction from substances of vegetable
Code Rev/AI:crs 6 I-2465.1/11
origin, or independently by means of chemical synthesis, or by a
combination of extraction and chemical synthesis:
(1) Opium, opium derivative, and any derivative of opium or opium
derivative, including their salts, isomers, and salts of isomers,
whenever the existence of the salts, isomers, and salts of isomers is
possible within the specific chemical designation. The term does not
include the isoquinoline alkaloids of opium.
(2) Synthetic opiate and any derivative of synthetic opiate,
including their isomers, esters, ethers, salts, and salts of isomers,
esters, and ethers, whenever the existence of the isomers, esters,
ethers, and salts is possible within the specific chemical
designation.
(3) Poppy straw and concentrate of poppy straw.
(4) Coca leaves, except coca leaves and extracts of coca leaves
from which cocaine, ecgonine, and derivatives or ecgonine or their
salts have been removed.
(5) Cocaine, or any salt, isomer, or salt of isomer thereof.
(6) Cocaine base.
(7) Ecgonine, or any derivative, salt, isomer, or salt of isomer
thereof.
(8) Any compound, mixture, or preparation containing any quantity
of any substance referred to in subparagraphs (1) through (7).
(((s))) (y) “Opiate” means any substance having an addictionforming
or addiction-sustaining liability similar to morphine or being
capable of conversion into a drug having addiction-forming or
addiction-sustaining liability. The term includes opium, substances
derived from opium (opium derivatives), and synthetic opiates. The
term does not include, unless specifically designated as controlled
under RCW 69.50.201, the dextrorotatory isomer of 3-methoxy-nmethylmorphinan
and its salts (dextromethorphan). The term includes
the racemic and levorotatory forms of dextromethorphan.
(((t))) (z) “Opium poppy” means the plant of the species Papaver
somniferum L., except its seeds.
(((u))) (aa) “Person” means individual, corporation, business
trust, estate, trust, partnership, association, joint venture,
Code Rev/AI:crs 7 I-2465.1/11
government, governmental subdivision or agency, or any other legal or
commercial entity.
(((v))) (bb) “Poppy straw” means all parts, except the seeds, of
the opium poppy, after mowing.
(((w))) (cc) “Practitioner” means:
(1) A physician under chapter 18.71 RCW; a physician assistant
under chapter 18.71A RCW; an osteopathic physician and surgeon under
chapter 18.57 RCW; an osteopathic physician assistant under chapter
18.57A RCW who is licensed under RCW 18.57A.020 subject to any
limitations in RCW 18.57A.040; an optometrist licensed under chapter
18.53 RCW who is certified by the optometry board under RCW 18.53.010
subject to any limitations in RCW 18.53.010; a dentist under chapter
18.32 RCW; a podiatric physician and surgeon under chapter 18.22 RCW;
a veterinarian under chapter 18.92 RCW; a registered nurse, advanced
registered nurse practitioner, or licensed practical nurse under
chapter 18.79 RCW; a naturopathic physician under chapter 18.36A RCW
who is licensed under RCW 18.36A.030 subject to any limitations in RCW
18.36A.040; a pharmacist under chapter 18.64 RCW or a scientific
investigator under this chapter, licensed, registered or otherwise
permitted insofar as is consistent with those licensing laws to
distribute, dispense, conduct research with respect to or administer a
controlled substance in the course of their professional practice or
research in this state.
(2) A pharmacy, hospital or other institution licensed,
registered, or otherwise permitted to distribute, dispense, conduct
research with respect to or to administer a controlled substance in
the course of professional practice or research in this state.
(3) A physician licensed to practice medicine and surgery, a
physician licensed to practice osteopathic medicine and surgery, a
dentist licensed to practice dentistry, a podiatric physician and
surgeon licensed to practice podiatric medicine and surgery, or a
veterinarian licensed to practice veterinary medicine in any state of
the United States.
(((x))) (dd) “Prescription” means an order for controlled
substances issued by a practitioner duly authorized by law or rule in
Code Rev/AI:crs 8 I-2465.1/11
the state of Washington to prescribe controlled substances within the
scope of his or her professional practice for a legitimate medical
purpose.
(((y))) (ee) “Production” includes the manufacturing, planting,
cultivating, growing, or harvesting of a controlled substance.
(((z))) (ff) “Retail outlet” means a location licensed by the
state liquor control board for the retail sale of useable marijuana
and marijuana-infused products.
(gg) “Secretary” means the secretary of health or the secretary’s
designee.
(((aa))) (hh) “State,” unless the context otherwise requires,
means a state of the United States, the District of Columbia, the
Commonwealth of Puerto Rico, or a territory or insular possession
subject to the jurisdiction of the United States.
(((bb))) (ii) “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.
(jj) “Ultimate user” means an individual who lawfully possesses a
controlled substance for the individual’s own use or for the use of a
member of the individual’s household or for administering to an animal
owned by the individual or by a member of the individual’s household.
(((cc))) (kk) “Useable marijuana” means dried marijuana flowers.
The term “useable marijuana” does not include marijuana-infused
products.
(ll) “Electronic communication of prescription information” means
the communication of prescription information by computer, or the
transmission of an exact visual image of a prescription by facsimile,
or other electronic means for original prescription information or
prescription refill information for a Schedule III-V controlled
substance between an authorized practitioner and a pharmacy or the
transfer of prescription information for a controlled substance from
one pharmacy to another pharmacy.
NEW SECTION. Sec. 3. A new section is added to chapter 46.04 RCW
to read as follows:
Code Rev/AI:crs 9 I-2465.1/11
“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.
PART III
LICENSING AND REGULATION OF MARIJUANA
PRODUCERS, PROCESSORS, AND RETAILERS
NEW SECTION. Sec. 4. (1) There shall be a marijuana producer’s
license to produce marijuana for sale at wholesale to marijuana
processors and other marijuana producers, regulated by the state
liquor control board and subject to annual renewal. The production,
possession, delivery, distribution, and sale of marijuana in
accordance with the provisions of this act and the rules adopted to
implement and enforce it, by a validly licensed marijuana producer,
shall not be a criminal or civil offense under Washington state law.
Every marijuana producer’s license shall be issued in the name of the
applicant, shall specify the location at which the marijuana producer
intends to operate, which must be within the state of Washington, and
the holder thereof shall not allow any other person to use the
license. The application fee for a marijuana producer’s license shall
be two hundred fifty dollars. The annual fee for issuance and renewal
of a marijuana producer’s license shall be one thousand dollars. A
separate license shall be required for each location at which a
marijuana producer intends to produce marijuana.
(2) There shall be a marijuana processor’s license to process,
package, and label useable marijuana and marijuana-infused products
for sale at wholesale to marijuana retailers, regulated by the state
liquor control board and subject to annual renewal. The processing,
packaging, possession, delivery, distribution, and sale of marijuana,
useable marijuana, and marijuana-infused products in accordance with
the provisions of this act and the rules adopted to implement and
enforce it, by a validly licensed marijuana processor, shall not be a
Code Rev/AI:crs 10 I-2465.1/11
criminal or civil offense under Washington state law. Every marijuana
processor’s license shall be issued in the name of the applicant,
shall specify the location at which the licensee intends to operate,
which must be within the state of Washington, and the holder thereof
shall not allow any other person to use the license. The application
fee for a marijuana processor’s license shall be two hundred fifty
dollars. The annual fee for issuance and renewal of a marijuana
processor’s license shall be one thousand dollars. A separate license
shall be required for each location at which a marijuana processor
intends to process marijuana.
(3) There shall be a marijuana retailer’s license to sell useable
marijuana and marijuana-infused products at retail in retail outlets,
regulated by the state liquor control board and subject to annual
renewal. The possession, delivery, distribution, and sale of useable
marijuana and marijuana-infused products in accordance with the
provisions of this act and the rules adopted to implement and enforce
it, by a validly licensed marijuana retailer, shall not be a criminal
or civil offense under Washington state law. Every marijuana
retailer’s license shall be issued in the name of the applicant, shall
specify the location of the retail outlet the licensee intends to
operate, which must be within the state of Washington, and the holder
thereof shall not allow any other person to use the license. The
application fee for a marijuana retailer’s license shall be two
hundred fifty dollars. The annual fee for issuance and renewal of a
marijuana retailer’s license shall be one thousand dollars. A
separate license shall be required for each location at which a
marijuana retailer intends to sell useable marijuana and marijuanainfused
products.
NEW SECTION. Sec. 5. Neither a licensed marijuana producer nor a
licensed marijuana processor shall have a direct or indirect financial
interest in a licensed marijuana retailer.
NEW SECTION. Sec. 6. (1) For the purpose of considering any
application for a license to produce, process, or sell marijuana, or
Code Rev/AI:crs 11 I-2465.1/11
for the renewal of a license to produce, process, or sell marijuana,
the state liquor control board may cause an inspection of the premises
to be made, and may inquire into all matters in connection with the
construction and operation of the premises. For the purpose of
reviewing any application for a license and for considering the
denial, suspension, revocation, or renewal or denial thereof, of any
license, the state liquor control board may consider any prior
criminal conduct of the applicant including an administrative
violation history record with the state liquor control board and a
criminal history record information check. The state liquor control
board may submit the criminal history record information check to the
Washington state patrol and to the identification division of the
federal bureau of investigation in order that these agencies may
search their records for prior arrests and convictions of the
individual or individuals who filled out the forms. The state liquor
control board shall require fingerprinting of any applicant whose
criminal history record information check is submitted to the federal
bureau of investigation. The provisions of RCW 9.95.240 and of
chapter 9.96A RCW shall not apply to these cases. Subject to the
provisions of this section, the state liquor control board may, in its
discretion, grant or deny the renewal or license applied for. Denial
may be based on, without limitation, the existence of chronic illegal
activity documented in objections submitted pursuant to subsections
(7)(c) and (9) of this section. Authority to approve an uncontested
or unopposed license may be granted by the state liquor control board
to any staff member the board designates in writing. Conditions for
granting this authority shall be adopted by rule. No license of any
kind may be issued to:
(a) A person under the age of twenty-one years;
(b) A person doing business as a sole proprietor who has not
lawfully resided in the state for at least three months prior to
applying to receive a license;
(c) A partnership, employee cooperative, association, nonprofit
corporation, or corporation unless formed under the laws of this
Code Rev/AI:crs 12 I-2465.1/11
state, and unless all of the members thereof are qualified to obtain a
license as provided in this section; or
(d) A person whose place of business is conducted by a manager or
agent, unless the manager or agent possesses the same qualifications
required of the licensee.
(2)(a) The state liquor control board may, in its discretion,
subject to the provisions of section 7 of this act, suspend or cancel
any license; and all protections of the licensee from criminal or
civil sanctions under state law for producing, processing, or selling
marijuana, useable marijuana, or marijuana-infused products thereunder
shall be suspended or terminated, as the case may be.
(b) The state liquor control board shall immediately suspend the
license of a person who has been certified pursuant to RCW 74.20A.320
by the department of social and health services as a person who is not
in compliance with a support order. If the person has continued to
meet all other requirements for reinstatement during the suspension,
reissuance of the license shall be automatic upon the state liquor
control board’s receipt of a release issued by the department of
social and health services stating that the licensee is in compliance
with the order.
(c) The state liquor control board may request the appointment of
administrative law judges under chapter 34.12 RCW who shall have power
to administer oaths, issue subpoenas for the attendance of witnesses
and the production of papers, books, accounts, documents, and
testimony, examine witnesses, and to receive testimony in any inquiry,
investigation, hearing, or proceeding in any part of the state, under
rules and regulations the state liquor control board may adopt.
(d) Witnesses shall be allowed fees and mileage each way to and
from any inquiry, investigation, hearing, or proceeding at the rate
authorized by RCW 34.05.446. Fees need not be paid in advance of
appearance of witnesses to testify or to produce books, records, or
other legal evidence.
(e) In case of disobedience of any person to comply with the order
of the state liquor control board or a subpoena issued by the state
liquor control board, or any of its members, or administrative law
Code Rev/AI:crs 13 I-2465.1/11
judges, or on the refusal of a witness to testify to any matter
regarding which he or she may be lawfully interrogated, the judge of
the superior court of the county in which the person resides, on
application of any member of the board or administrative law judge,
shall compel obedience by contempt proceedings, as in the case of
disobedience of the requirements of a subpoena issued from said court
or a refusal to testify therein.
(3) Upon receipt of notice of the suspension or cancellation of a
license, the licensee shall forthwith deliver up the license to the
state liquor control board. Where the license has been suspended
only, the state liquor control board shall return the license to the
licensee at the expiration or termination of the period of suspension.
The state liquor control board shall notify all other licensees in the
county where the subject licensee has its premises of the suspension
or cancellation of the license; and no other licensee or employee of
another licensee may allow or cause any marijuana, useable marijuana,
or marijuana-infused products to be delivered to or for any person at
the premises of the subject licensee.
(4) Every license issued under this act shall be subject to all
conditions and restrictions imposed by this act or by rules adopted by
the state liquor control board to implement and enforce this act. All
conditions and restrictions imposed by the state liquor control board
in the issuance of an individual license shall be listed on the face
of the individual license along with the trade name, address, and
expiration date.
(5) Every licensee shall post and keep posted its license, or
licenses, in a conspicuous place on the premises.
(6) No licensee shall employ any person under the age of twentyone
years.
(7)(a) Before the state liquor control board issues a new or
renewed license to an applicant it shall give notice of the
application to the chief executive officer of the incorporated city or
town, if the application is for a license within an incorporated city
or town, or to the county legislative authority, if the application is
for a license outside the boundaries of incorporated cities or towns.
Code Rev/AI:crs 14 I-2465.1/11
(b) The incorporated city or town through the official or employee
selected by it, or the county legislative authority or the official or
employee selected by it, shall have the right to file with the state
liquor control board within twenty days after the date of transmittal
of the notice for applications, or at least thirty days prior to the
expiration date for renewals, written objections against the applicant
or against the premises for which the new or renewed license is asked.
The state liquor control board may extend the time period for
submitting written objections.
(c) The written objections shall include a statement of all facts
upon which the objections are based, and in case written objections
are filed, the city or town or county legislative authority may
request, and the state liquor control board may in its discretion
hold, a hearing subject to the applicable provisions of Title 34 RCW.
If the state liquor control board makes an initial decision to deny a
license or renewal based on the written objections of an incorporated
city or town or county legislative authority, the applicant may
request a hearing subject to the applicable provisions of Title 34
RCW. If a hearing is held at the request of the applicant, state
liquor control board representatives shall present and defend the
state liquor control board’s initial decision to deny a license or
renewal.
(d) Upon the granting of a license under this title the state
liquor control board shall send written notification to the chief
executive officer of the incorporated city or town in which the
license is granted, or to the county legislative authority if the
license is granted outside the boundaries of incorporated cities or
towns.
(8) The state liquor control board shall not issue a license for
any premises within one thousand feet of the perimeter of the grounds
of any elementary or secondary school, playground, recreation center
or facility, child care center, public park, public transit center, or
library, or any game arcade admission to which is not restricted to
persons aged twenty-one years or older.
Code Rev/AI:crs 15 I-2465.1/11
(9) In determining whether to grant or deny a license or renewal
of any license, the state liquor control board shall give substantial
weight to objections from an incorporated city or town or county
legislative authority based upon chronic illegal activity associated
with the applicant’s operations of the premises proposed to be
licensed or the applicant’s operation of any other licensed premises,
or the conduct of the applicant’s patrons inside or outside the
licensed premises. “Chronic illegal activity” means (a) a pervasive
pattern of activity that threatens the public health, safety, and
welfare of the city, town, or county including, but not limited to,
open container violations, assaults, disturbances, disorderly conduct,
or other criminal law violations, or as documented in crime
statistics, police reports, emergency medical response data, calls for
service, field data, or similar records of a law enforcement agency
for the city, town, county, or any other municipal corporation or any
state agency; or (b) an unreasonably high number of citations for
violations of RCW 46.61.502 associated with the applicant’s or
licensee’s operation of any licensed premises as indicated by the
reported statements given to law enforcement upon arrest.
NEW SECTION. Sec. 7. The action, order, or decision of the state
liquor control board as to any denial of an application for the
reissuance of a license to produce, process, or sell marijuana, or as
to any revocation, suspension, or modification of any license to
produce, process, or sell marijuana, shall be an adjudicative
proceeding and subject to the applicable provisions of chapter 34.05
RCW.
(1) An opportunity for a hearing may be provided to an applicant
for the reissuance of a license prior to the disposition of the
application, and if no opportunity for a prior hearing is provided
then an opportunity for a hearing to reconsider the application must
be provided the applicant.
(2) An opportunity for a hearing must be provided to a licensee
prior to a revocation or modification of any license and, except as
Code Rev/AI:crs 16 I-2465.1/11
provided in subsection (4) of this section, prior to the suspension of
any license.
(3) No hearing shall be required until demanded by the applicant
or licensee.
(4) The state liquor control board may summarily suspend a license
for a period of up to one hundred eighty days without a prior hearing
if it finds that public health, safety, or welfare imperatively
require emergency action, and it incorporates a finding to that effect
in its order. Proceedings for revocation or other action must be
promptly instituted and determined. An administrative law judge may
extend the summary suspension period for up to one calendar year from
the first day of the initial summary suspension in the event the
proceedings for revocation or other action cannot be completed during
the initial one hundred eighty-day period due to actions by the
licensee. The state liquor control board’s enforcement division shall
complete a preliminary staff investigation of the violation before
requesting an emergency suspension by the state liquor control board.
NEW SECTION. Sec. 8. (1) If the state liquor control board
approves, a license to produce, process, or sell marijuana may be
transferred, without charge, to the surviving spouse or domestic
partner of a deceased licensee if the license was issued in the names
of one or both of the parties. For the purpose of considering the
qualifications of the surviving party to receive a marijuana
producer’s, marijuana processor’s, or marijuana retailer’s license,
the state liquor control board may require a criminal history record
information check. The state liquor control board may submit the
criminal history record information check to the Washington state
patrol and to the identification division of the federal bureau of
investigation in order that these agencies may search their records
for prior arrests and convictions of the individual or individuals who
filled out the forms. The state liquor control board shall require
fingerprinting of any applicant whose criminal history record
information check is submitted to the federal bureau of investigation.
Code Rev/AI:crs 17 I-2465.1/11
(2) The proposed sale of more than ten percent of the outstanding
or issued stock of a corporation licensed under this act, or any
proposed change in the officers of such a corporation, must be
reported to the state liquor control board, and state liquor control
board approval must be obtained before the changes are made. A fee of
seventy-five dollars will be charged for the processing of the change
of stock ownership or corporate officers.
NEW SECTION. Sec. 9. For the purpose of carrying into effect the
provisions of this act according to their true intent or of supplying
any deficiency therein, the state liquor control board may adopt rules
not inconsistent with the spirit of this act as are deemed necessary
or advisable. Without limiting the generality of the preceding
sentence, the state liquor control board is empowered to adopt rules
regarding the following:
(1) The equipment and management of retail outlets and premises
where marijuana is produced or processed, and inspection of the retail
outlets and premises;
(2) The books and records to be created and maintained by
licensees, the reports to be made thereon to the state liquor control
board, and inspection of the books and records;
(3) Methods of producing, processing, and packaging marijuana,
useable marijuana, and marijuana-infused products; conditions of
sanitation; and standards of ingredients, quality, and identity of
marijuana, useable marijuana, and marijuana-infused products produced,
processed, packaged, or sold by licensees;
(4) Security requirements for retail outlets and premises where
marijuana is produced or processed, and safety protocols for licensees
and their employees;
(5) Screening, hiring, training, and supervising employees of
licensees;
(6) Retail outlet locations and hours of operation;
(7) Labeling requirements and restrictions on advertisement of
marijuana, useable marijuana, and marijuana-infused products;
Code Rev/AI:crs 18 I-2465.1/11
(8) Forms to be used for purposes of this act or the rules adopted
to implement and enforce it, the terms and conditions to be contained
in licenses issued under this act, and the qualifications for
receiving a license issued under this act, including a criminal
history record information check. The state liquor control board may
submit any criminal history record information check to the Washington
state patrol and to the identification division of the federal bureau
of investigation in order that these agencies may search their records
for prior arrests and convictions of the individual or individuals who
filled out the forms. The state liquor control board shall require
fingerprinting of any applicant whose criminal history record
information check is submitted to the federal bureau of investigation;
(9) Application, reinstatement, and renewal fees for licenses
issued under this act, and fees for anything done or permitted to be
done under the rules adopted to implement and enforce this act;
(10) The manner of giving and serving notices required by this act
or rules adopted to implement or enforce it;
(11) Times and periods when, and the manner, methods, and means by
which, licensees shall transport and deliver marijuana, useable
marijuana, and marijuana-infused products within the state;
(12) Identification, seizure, confiscation, destruction, or
donation to law enforcement for training purposes of all marijuana,
useable marijuana, and marijuana-infused products produced, processed,
sold, or offered for sale within this state which do not conform in
all respects to the standards prescribed by this act or the rules
adopted to implement and enforce it: PROVIDED, That nothing in this
act shall be construed as authorizing the state liquor control board
to seize, confiscate, destroy, or donate to law enforcement marijuana,
useable marijuana, or marijuana-infused products produced, processed,
sold, offered for sale, or possessed in compliance with the Washington
state medical use of cannabis act, chapter 69.51A RCW.
NEW SECTION. Sec. 10. The state liquor control board, subject to
the provisions of this act, must adopt rules by December 1, 2013, that
Code Rev/AI:crs 19 I-2465.1/11
establish the procedures and criteria necessary to implement the
following:
(1) Licensing of marijuana producers, marijuana processors, and
marijuana retailers, including prescribing forms and establishing
application, reinstatement, and renewal fees;
(2) Determining, in consultation with the office of financial
management, the maximum number of retail outlets that may be licensed
in each county, taking into consideration:
(a) Population distribution;
(b) Security and safety issues; and
(c) The provision of adequate access to licensed sources of
useable marijuana and marijuana-infused products to discourage
purchases from the illegal market;
(3) Determining the maximum quantity of marijuana a marijuana
producer may have on the premises of a licensed location at any time
without violating Washington state law;
(4) Determining the maximum quantities of marijuana, useable
marijuana, and marijuana-infused products a marijuana processor may
have on the premises of a licensed location at any time without
violating Washington state law;
(5) Determining the maximum quantities of useable marijuana and
marijuana-infused products a marijuana retailer may have on the
premises of a retail outlet at any time without violating Washington
state law;
(6) In making the determinations required by subsections (3)
through (5) of this section, the state liquor control board shall take
into consideration:
(a) Security and safety issues;
(b) The provision of adequate access to licensed sources of
marijuana, useable marijuana, and marijuana-infused products to
discourage purchases from the illegal market; and
(c) Economies of scale, and their impact on licensees’ ability to
both comply with regulatory requirements and undercut illegal market
prices;
Code Rev/AI:crs 20 I-2465.1/11
(7) 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 marijuanainfused
product;
(c) THC concentration of the marijuana, useable marijuana, or
marijuana-infused product;
(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;
(8) In consultation with the department of agriculture,
establishing classes of marijuana, useable marijuana, and marijuanainfused
products according to grade, condition, cannabinoid profile,
THC concentration, or other qualitative measurements deemed
appropriate by the state liquor control board;
(9) Establishing reasonable time, place, and manner restrictions
and requirements regarding advertising of marijuana, useable
marijuana, and marijuana-infused products that are not inconsistent
with the provisions of this act, taking into consideration:
(a) Federal laws relating to marijuana that are applicable within
Washington state;
(b) Minimizing exposure of people under twenty-one years of age to
the advertising; and
(c) The inclusion of medically and scientifically accurate
information about the health and safety risks posed by marijuana use
in the advertising;
(10) Specifying and regulating the time and periods when, and the
manner, methods, and means by which, licensees shall transport and
deliver marijuana, useable marijuana, and marijuana-infused products
within the state;
Code Rev/AI:crs 21 I-2465.1/11
(11) In consultation with the department and the department of
agriculture, establishing accreditation requirements for testing
laboratories used by licensees to demonstrate compliance with
standards adopted by the state liquor control board, and prescribing
methods of producing, processing, and packaging marijuana, useable
marijuana, and marijuana-infused products; conditions of sanitation;
and standards of ingredients, quality, and identity of marijuana,
useable marijuana, and marijuana-infused products produced, processed,
packaged, or sold by licensees;
(12) Specifying procedures for identifying, seizing, confiscating,
destroying, and donating to law enforcement for training purposes all
marijuana, useable marijuana, and marijuana-infused products produced,
processed, packaged, labeled, or offered for sale in this state that
do not conform in all respects to the standards prescribed by this act
or the rules of the state liquor control board.
NEW SECTION. Sec. 11. (1) On a schedule determined by the state
liquor control board, every licensed marijuana producer and processor
must submit representative samples of marijuana, useable marijuana, or
marijuana-infused products produced or processed by the licensee to an
independent, third-party testing laboratory meeting the accreditation
requirements established by the state liquor control board, for
inspection and testing to certify compliance with standards adopted by
the state liquor control board. Any sample remaining after testing
shall be destroyed by the laboratory or returned to the licensee.
(2) Licensees must submit the results of this inspection and
testing to the state liquor control board on a form developed by the
state liquor control board.
(3) If a representative sample inspected and tested under this
section does not meet the applicable standards adopted by the state
liquor control board, the entire lot from which the sample was taken
must be destroyed.
NEW SECTION. Sec. 12. Except as provided by chapter 42.52 RCW,
no member of the state liquor control board and no employee of the
Code Rev/AI:crs 22 I-2465.1/11
state liquor control board shall have any interest, directly or
indirectly, in the producing, processing, or sale of marijuana,
useable marijuana, or marijuana-infused products, or derive any profit
or remuneration from the sale of marijuana, useable marijuana, or
marijuana-infused products other than the salary or wages payable to
him or her in respect of his or her office or position, and shall
receive no gratuity from any person in connection with the business.
NEW SECTION. Sec. 13. There may be licensed, in no greater
number in each of the counties of the state than as the state liquor
control board shall deem advisable, retail outlets established for the
purpose of making useable marijuana and marijuana-infused products
available for sale to adults aged twenty-one and over. Retail sale of
useable marijuana and marijuana-infused products in accordance with
the provisions of this act and the rules adopted to implement and
enforce it, by a validly licensed marijuana retailer or retail outlet
employee, shall not be a criminal or civil offense under Washington
state law.
NEW SECTION. Sec. 14. (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-ofway,
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.
Code Rev/AI:crs 23 I-2465.1/11
(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.
NEW SECTION. Sec. 15. 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:
(1) Purchase and receipt of useable marijuana or marijuana-infused
products that have been properly packaged and labeled from a marijuana
processor validly licensed under this act;
(2) Possession of quantities of useable marijuana or marijuanainfused
products that do not exceed the maximum amounts established by
the state liquor control board under section 10(5) of this act; and
(3) 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;
(b) Sixteen ounces of marijuana-infused product in solid form; or
(c) Seventy-two ounces of marijuana-infused product in liquid
form.
NEW SECTION. Sec. 16. The following acts, when performed by a
validly licensed marijuana processor or employee of a validly licensed
marijuana processor 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:
Code Rev/AI:crs 24 I-2465.1/11
(1) Purchase and receipt of marijuana that has been properly
packaged and labeled from a marijuana producer validly licensed under
this act;
(2) Possession, processing, packaging, and labeling of quantities
of marijuana, useable marijuana, and marijuana-infused products that
do not exceed the maximum amounts established by the state liquor
control board under section 10(4) of this act; and
(3) Delivery, distribution, and sale of useable marijuana or
marijuana-infused products to a marijuana retailer validly licensed
under this act.
NEW SECTION. Sec. 17. The following acts, when performed by a
validly licensed marijuana producer or employee of a validly licensed
marijuana producer 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:
(1) Production or possession of quantities of marijuana that do
not exceed the maximum amounts established by the state liquor control
board under section 10(3) of this act; and
(2) Delivery, distribution, and sale of marijuana to a marijuana
processor or another marijuana producer validly licensed under this
act.
NEW SECTION. Sec. 18. (1) No licensed marijuana producer,
processor, or retailer shall place or maintain, or cause to be placed
or maintained, an advertisement of marijuana, useable marijuana, or a
marijuana-infused product in any form or through any medium
whatsoever:
(a) Within one thousand feet of the perimeter of a school grounds,
playground, recreation center or facility, child care center, public
park, or library, or any game arcade admission to which is not
restricted to persons aged twenty-one years or older;
(b) On or in a public transit vehicle or public transit shelter;
or
(c) On or in a publicly owned or operated property.
Code Rev/AI:crs 25 I-2465.1/11
(2) Merchandising within a retail outlet is not advertising for
the purposes of this section.
(3) This section does not apply to a noncommercial message.
(4) The state liquor control board shall fine a licensee one
thousand dollars for each violation of subsection (1) of this section.
Fines collected under this subsection must be deposited into the
dedicated marijuana fund created under section 26 of this act.
Sec. 19. RCW 69.50.401 and 2005 c 218 s 1 are each amended to
read as follows:
(1) Except as authorized by this chapter, it is unlawful for any
person to manufacture, deliver, or possess with intent to manufacture
or deliver, a controlled substance.
(2) Any person who violates this section with respect to:
(a) A controlled substance classified in Schedule I or II which is
a narcotic drug or flunitrazepam, including its salts, isomers, and
salts of isomers, classified in Schedule IV, is guilty of a class B
felony and upon conviction may be imprisoned for not more than ten
years, or (i) fined not more than twenty-five thousand dollars if the
crime involved less than two kilograms of the drug, or both such
imprisonment and fine; or (ii) if the crime involved two or more
kilograms of the drug, then fined not more than one hundred thousand
dollars for the first two kilograms and not more than fifty dollars
for each gram in excess of two kilograms, or both such imprisonment
and fine;
(b) Amphetamine, including its salts, isomers, and salts of
isomers, or methamphetamine, including its salts, isomers, and salts
of isomers, is guilty of a class B felony and upon conviction may be
imprisoned for not more than ten years, or (i) fined not more than
twenty-five thousand dollars if the crime involved less than two
kilograms of the drug, or both such imprisonment and fine; or (ii) if
the crime involved two or more kilograms of the drug, then fined not
more than one hundred thousand dollars for the first two kilograms and
not more than fifty dollars for each gram in excess of two kilograms,
or both such imprisonment and fine. Three thousand dollars of the
Code Rev/AI:crs 26 I-2465.1/11
fine may not be suspended. As collected, the first three thousand
dollars of the fine must be deposited with the law enforcement agency
having responsibility for cleanup of laboratories, sites, or
substances used in the manufacture of the methamphetamine, including
its salts, isomers, and salts of isomers. The fine moneys deposited
with that law enforcement agency must be used for such clean-up cost;
(c) Any other controlled substance classified in Schedule I, II,
or III, is guilty of a class C felony punishable according to chapter
9A.20 RCW;
(d) A substance classified in Schedule IV, except flunitrazepam,
including its salts, isomers, and salts of isomers, is guilty of a
class C felony punishable according to chapter 9A.20 RCW; or
(e) A substance classified in Schedule V, is guilty of a class C
felony punishable according to chapter 9A.20 RCW.
(3) The production, manufacture, processing, packaging, delivery,
distribution, sale, or possession of marijuana in compliance with the
terms set forth in section 15, 16, or 17 of this act shall not
constitute a violation of this section, this chapter, or any other
provision of Washington state law.
Sec. 20. RCW 69.50.4013 and 2003 c 53 s 334 are each amended to
read as follows:
(1) It is unlawful for any person to possess a controlled
substance unless the substance was obtained directly from, or pursuant
to, a valid prescription or order of a practitioner while acting in
the course of his or her professional practice, or except as otherwise
authorized by this chapter.
(2) Except as provided in RCW 69.50.4014, any person who violates
this section is guilty of a class C felony punishable under chapter
9A.20 RCW.
(3) The possession, by a person twenty-one years of age or older, of
useable marijuana or marijuana-infused products in amounts that do not
exceed those set forth in section 15(3) of this act is not a violation
of this section, this chapter, or any other provision of Washington
state law.
Code Rev/AI:crs 27 I-2465.1/11
NEW SECTION. Sec. 21. It is unlawful to open a package
containing marijuana, useable marijuana, or a marijuana-infused
product, or consume marijuana, useable marijuana, or a marijuanainfused
product, in view of the general public. A person who violates
this section is guilty of a class 3 civil infraction under chapter
7.80 RCW.
Sec. 22. RCW 69.50.412 and 2002 c 213 s 1 are each amended to
read as follows:
(1) It is unlawful for any person to use drug paraphernalia to
plant, propagate, cultivate, grow, harvest, manufacture, compound,
convert, produce, process, prepare, test, analyze, pack, repack,
store, contain, conceal, inject, ingest, inhale, or otherwise
introduce into the human body a controlled substance other than
marijuana. Any person who violates this subsection is guilty of a
misdemeanor.
(2) It is unlawful for any person to deliver, possess with intent
to deliver, or manufacture with intent to deliver drug paraphernalia,
knowing, or under circumstances where one reasonably should know, that
it will be used to plant, propagate, cultivate, grow, harvest,
manufacture, compound, convert, produce, process, prepare, test,
analyze, pack, repack, store, contain, conceal, inject, ingest,
inhale, or otherwise introduce into the human body a controlled
substance other than marijuana. Any person who violates this
subsection is guilty of a misdemeanor.
(3) Any person eighteen years of age or over who violates
subsection (2) of this section by delivering drug paraphernalia to a
person under eighteen years of age who is at least three years his
junior is guilty of a gross misdemeanor.
(4) It is unlawful for any person to place in any newspaper,
magazine, handbill, or other publication any advertisement, knowing,
or under circumstances where one reasonably should know, that the
purpose of the advertisement, in whole or in part, is to promote the
sale of objects designed or intended for use as drug paraphernalia.
Any person who violates this subsection is guilty of a misdemeanor.
Code Rev/AI:crs 28 I-2465.1/11
(5) It is lawful for any person over the age of eighteen to
possess sterile hypodermic syringes and needles for the purpose of
reducing bloodborne diseases.
Sec. 23. RCW 69.50.4121 and 2002 c 213 s 2 are each amended to
read as follows:
(1) Every person who sells or gives, or permits to be sold or
given to any person any drug paraphernalia in any form commits a class
I civil infraction under chapter 7.80 RCW. For purposes of this
subsection, “drug paraphernalia” means all equipment, products, and
materials of any kind which are used, intended for use, or designed
for use in planting, propagating, cultivating, growing, harvesting,
manufacturing, compounding, converting, producing, processing,
preparing, testing, analyzing, packaging, repackaging, storing,
containing, concealing, injecting, ingesting, inhaling, or otherwise
introducing into the human body a controlled substance other than
marijuana. Drug paraphernalia includes, but is not limited to objects
used, intended for use, or designed for use in ingesting, inhaling, or
otherwise introducing ((marihuana,)) cocaine((, hashish, or hashish
oil)) into the human body, such as:
(a) Metal, wooden, acrylic, glass, stone, plastic, or ceramic
pipes with or without screens, permanent screens, hashish heads, or
punctured metal bowls;
(b) Water pipes;
(c) Carburetion tubes and devices;
(d) Smoking and carburetion masks;
(e) ((Roach clips: Meaning objects used to hold burning material,
such as a marihuana cigarette, that has become too small or too short
to be held in the hand;
(f))) Miniature cocaine spoons and cocaine vials;
(((g))) (f) Chamber pipes;
(((h))) (g) Carburetor pipes;
(((i))) (h) Electric pipes;
(((j))) (i) Air-driven pipes;
Code Rev/AI:crs 29 I-2465.1/11
(((k) Chillums;
(l) Bongs;)) and
(((m))) (j) Ice pipes or chillers.
(2) It shall be no defense to a prosecution for a violation of
this section that the person acted, or was believed by the defendant
to act, as agent or representative of another.
(3) Nothing in subsection (1) of this section prohibits legal
distribution of injection syringe equipment through public health and
community based HIV prevention programs, and pharmacies.
Sec. 24. RCW 69.50.500 and 1989 1st ex.s. c 9 s 437 are each
amended to read as follows:
(a) It is hereby made the duty of the state board of pharmacy, the
department, the state liquor control board, and their officers,
agents, inspectors and representatives, and all law enforcement
officers within the state, and of all prosecuting attorneys, to
enforce all provisions of this chapter, except those specifically
delegated, and to cooperate with all agencies charged with the
enforcement of the laws of the United States, of this state, and all
other states, relating to controlled substances as defined in this
chapter.
(b) Employees of the department of health, who are so designated
by the board as enforcement officers are declared to be peace officers
and shall be vested with police powers to enforce the drug laws of
this state, including this chapter.
Sec. 25. RCW 69.50.505 and 2009 c 479 s 46 and 2009 c 364 s 1 are
each reenacted and amended to read as follows:
(1) The following are subject to seizure and forfeiture and no
property right exists in them:
(a) All controlled substances which have been manufactured,
distributed, dispensed, acquired, or possessed in violation of this
chapter or chapter 69.41 or 69.52 RCW, and all hazardous chemicals, as
defined in RCW 64.44.010, used or intended to be used in the
manufacture of controlled substances;
Code Rev/AI:crs 30 I-2465.1/11
(b) All raw materials, products, and equipment of any kind which
are used, or intended for use, in manufacturing, compounding,
processing, delivering, importing, or exporting any controlled
substance in violation of this chapter or chapter 69.41 or 69.52 RCW;
(c) All property which is used, or intended for use, as a
container for property described in (a) or (b) of this subsection;
(d) All conveyances, including aircraft, vehicles, or vessels,
which are used, or intended for use, in any manner to facilitate the
sale, delivery, or receipt of property described in (a) or (b) of this
subsection, except that:
(i) No conveyance used by any person as a common carrier in the
transaction of business as a common carrier is subject to forfeiture
under this section unless it appears that the owner or other person in
charge of the conveyance is a consenting party or privy to a violation
of this chapter or chapter 69.41 or 69.52 RCW;
(ii) No conveyance is subject to forfeiture under this section by
reason of any act or omission established by the owner thereof to have
been committed or omitted without the owner’s knowledge or consent;
(iii) No conveyance is subject to forfeiture under this section if
used in the receipt of only an amount of marijuana for which
possession constitutes a misdemeanor under RCW 69.50.4014;
(iv) A forfeiture of a conveyance encumbered by a bona fide
security interest is subject to the interest of the secured party if
the secured party neither had knowledge of nor consented to the act or
omission; and
(v) When the owner of a conveyance has been arrested under this
chapter or chapter 69.41 or 69.52 RCW the conveyance in which the
person is arrested may not be subject to forfeiture unless it is
seized or process is issued for its seizure within ten days of the
owner’s arrest;
(e) All books, records, and research products and materials,
including formulas, microfilm, tapes, and data which are used, or
intended for use, in violation of this chapter or chapter 69.41 or
69.52 RCW;
Code Rev/AI:crs 31 I-2465.1/11
(f) All drug paraphernalia21 other than paraphernalia possessed,
sold, or used solely to facilitate marijuana-related activities that
are not violations of this chapter;
(g) All moneys, negotiable instruments, securities, or other
tangible or intangible property of value furnished or intended to be
furnished by any person in exchange for a controlled substance in
violation of this chapter or chapter 69.41 or 69.52 RCW, all tangible
or intangible personal property, proceeds, or assets acquired in whole
or in part with proceeds traceable to an exchange or series of
exchanges in violation of this chapter or chapter 69.41 or 69.52 RCW,
and all moneys, negotiable instruments, and securities used or
intended to be used to facilitate any violation of this chapter or
chapter 69.41 or 69.52 RCW. A forfeiture of money, negotiable
instruments, securities, or other tangible or intangible property
encumbered by a bona fide security interest is subject to the interest
of the secured party if, at the time the security interest was
created, the secured party neither had knowledge of nor consented to
the act or omission. No personal property may be forfeited under this
subsection (1)(g), to the extent of the interest of an owner, by
reason of any act or omission which that owner establishes was
committed or omitted without the owner’s knowledge or consent; and
(h) All real property, including any right, title, and interest in
the whole of any lot or tract of land, and any appurtenances or
improvements which are being used with the knowledge of the owner for
the manufacturing, compounding, processing, delivery, importing, or
exporting of any controlled substance, or which have been acquired in
whole or in part with proceeds traceable to an exchange or series of
exchanges in violation of this chapter or chapter 69.41 or 69.52 RCW,
if such activity is not less than a class C felony and a substantial
nexus exists between the commercial production or sale of the
controlled substance and the real property. However:
(i) No property may be forfeited pursuant to this subsection
(1)(h), to the extent of the interest of an owner, by reason of any
act or omission committed or omitted without the owner’s knowledge or
consent;
Code Rev/AI:crs 32 I-2465.1/11
(ii) The bona fide gift of a controlled substance, legend drug, or
imitation controlled substance shall not result in the forfeiture of
real property;
(iii) The possession of marijuana shall not result in the
forfeiture of real property unless the marijuana is possessed for
commercial purposes that are unlawful under Washington state law, the
amount possessed is five or more plants or one pound or more of
marijuana, and a substantial nexus exists between the possession of
marijuana and the real property. In such a case, the intent of the
offender shall be determined by the preponderance of the evidence,
including the offender’s prior criminal history, the amount of
marijuana possessed by the offender, the sophistication of the
activity or equipment used by the offender, whether the offender was
licensed to produce, process, or sell marijuana, or was an employee of
a licensed producer, processor, or retailer, and other evidence which
demonstrates the offender’s intent to engage in unlawful commercial
activity;
(iv) The unlawful sale of marijuana or a legend drug shall not
result in the forfeiture of real property unless the sale was forty
grams or more in the case of marijuana or one hundred dollars or more
in the case of a legend drug, and a substantial nexus exists between
the unlawful sale and the real property; and
(v) A forfeiture of real property encumbered by a bona fide
security interest is subject to the interest of the secured party if
the secured party, at the time the security interest was created,
neither had knowledge of nor consented to the act or omission.
(2) Real or personal property subject to forfeiture under this
chapter may be seized by any board inspector or law enforcement
officer of this state upon process issued by any superior court having
jurisdiction over the property. Seizure of real property shall
include the filing of a lis pendens by the seizing agency. Real
property seized under this section shall not be transferred or
otherwise conveyed until ninety days after seizure or until a judgment
of forfeiture is entered, whichever is later: PROVIDED, That real
property seized under this section may be transferred or conveyed to
Code Rev/AI:crs 33 I-2465.1/11
any person or entity who acquires title by foreclosure or deed in lieu
of foreclosure of a security interest. Seizure of personal property
without process may be made if:
(a) The seizure is incident to an arrest or a search under a
search warrant or an inspection under an administrative inspection
warrant;
(b) The property subject to seizure has been the subject of a
prior judgment in favor of the state in a criminal injunction or
forfeiture proceeding based upon this chapter;
(c) A board inspector or law enforcement officer has probable
cause to believe that the property is directly or indirectly dangerous
to health or safety; or
(d) The board inspector or law enforcement officer has probable
cause to believe that the property was used or is intended to be used
in violation of this chapter.
(3) In the event of seizure pursuant to subsection (2) of this
section, proceedings for forfeiture shall be deemed commenced by the
seizure. The law enforcement agency under whose authority the seizure
was made shall cause notice to be served within fifteen days following
the seizure on the owner of the property seized and the person in
charge thereof and any person having any known right or interest
therein, including any community property interest, of the seizure and
intended forfeiture of the seized property. Service of notice of
seizure of real property shall be made according to the rules of civil
procedure. However, the state may not obtain a default judgment with
respect to real property against a party who is served by substituted
service absent an affidavit stating that a good faith effort has been
made to ascertain if the defaulted party is incarcerated within the
state, and that there is no present basis to believe that the party is
incarcerated within the state. Notice of seizure in the case of
property subject to a security interest that has been perfected by
filing a financing statement in accordance with chapter 62A.9A RCW, or
a certificate of title, shall be made by service upon the secured
party or the secured party’s assignee at the address shown on the
financing statement or the certificate of title. The notice of
Code Rev/AI:crs 34 I-2465.1/11
seizure in other cases may be served by any method authorized by law
or court rule including but not limited to service by certified mail
with return receipt requested. Service by mail shall be deemed
complete upon mailing within the fifteen day period following the
seizure.
(4) If no person notifies the seizing law enforcement agency in
writing of the person’s claim of ownership or right to possession of
items specified in subsection (1)(d), (g), or (h) of this section
within forty-five days of the service of notice from the seizing
agency in the case of personal property and ninety days in the case of
real property, the item seized shall be deemed forfeited. The
community property interest in real property of a person whose spouse
or domestic partner committed a violation giving rise to seizure of
the real property may not be forfeited if the person did not
participate in the violation.
(5) If any person notifies the seizing law enforcement agency in
writing of the person’s claim of ownership or right to possession of
items specified in subsection (1)(b), (c), (d), (e), (f), (g), or (h)
of this section within forty-five days of the service of notice from
the seizing agency in the case of personal property and ninety days in
the case of real property, the person or persons shall be afforded a
reasonable opportunity to be heard as to the claim or right. The
notice of claim may be served by any method authorized by law or court
rule including, but not limited to, service by first-class mail.
Service by mail shall be deemed complete upon mailing within the
forty-five day period following service of the notice of seizure in
the case of personal property and within the ninety-day period
following service of the notice of seizure in the case of real
property. The hearing shall be before the chief law enforcement
officer of the seizing agency or the chief law enforcement officer’s
designee, except where the seizing agency is a state agency as defined
in RCW 34.12.020(4), the hearing shall be before the chief law
enforcement officer of the seizing agency or an administrative law
judge appointed under chapter 34.12 RCW, except that any person
asserting a claim or right may remove the matter to a court of
Code Rev/AI:crs 35 I-2465.1/11
competent jurisdiction. Removal of any matter involving personal
property may only be accomplished according to the rules of civil
procedure. The person seeking removal of the matter must serve
process against the state, county, political subdivision, or
municipality that operates the seizing agency, and any other party of
interest, in accordance with RCW 4.28.080 or 4.92.020, within fortyfive
days after the person seeking removal has notified the seizing
law enforcement agency of the person’s claim of ownership or right to
possession. The court to which the matter is to be removed shall be
the district court when the aggregate value of personal property is
within the jurisdictional limit set forth in RCW 3.66.020. A hearing
before the seizing agency and any appeal therefrom shall be under
Title 34 RCW. In all cases, the burden of proof is upon the law
enforcement agency to establish, by a preponderance of the evidence,
that the property is subject to forfeiture.
The seizing law enforcement agency shall promptly return the
article or articles to the claimant upon a determination by the
administrative law judge or court that the claimant is the present
lawful owner or is lawfully entitled to possession thereof of items
specified in subsection (1)(b), (c), (d), (e), (f), (g), or (h) of
this section.
(6) In any proceeding to forfeit property under this title, where
the claimant substantially prevails, the claimant is entitled to
reasonable attorneys’ fees reasonably incurred by the claimant. In
addition, in a court hearing between two or more claimants to the
article or articles involved, the prevailing party is entitled to a
judgment for costs and reasonable attorneys’ fees.
(7) When property is forfeited under this chapter the board or
seizing law enforcement agency may:
(a) Retain it for official use or upon application by any law
enforcement agency of this state release such property to such agency
for the exclusive use of enforcing the provisions of this chapter;
(b) Sell that which is not required to be destroyed by law and
which is not harmful to the public;
Code Rev/AI:crs 36 I-2465.1/11
(c) Request the appropriate sheriff or director of public safety
to take custody of the property and remove it for disposition in
accordance with law; or
(d) Forward it to the drug enforcement administration for
disposition.
(8)(a) When property is forfeited, the seizing agency shall keep a
record indicating the identity of the prior owner, if known, a
description of the property, the disposition of the property, the
value of the property at the time of seizure, and the amount of
proceeds realized from disposition of the property.
(b) Each seizing agency shall retain records of forfeited property
for at least seven years.
(c) Each seizing agency shall file a report including a copy of
the records of forfeited property with the state treasurer each
calendar quarter.
(d) The quarterly report need not include a record of forfeited
property that is still being held for use as evidence during the
investigation or prosecution of a case or during the appeal from a
conviction.
(9)(a) By January 31st of each year, each seizing agency shall
remit to the state treasurer an amount equal to ten percent of the net
proceeds of any property forfeited during the preceding calendar year.
Money remitted shall be deposited in the state general fund.
(b) The net proceeds of forfeited property is the value of the
forfeitable interest in the property after deducting the cost of
satisfying any bona fide security interest to which the property is
subject at the time of seizure; and in the case of sold property,
after deducting the cost of sale, including reasonable fees or
commissions paid to independent selling agents, and the cost of any
valid landlord’s claim for damages under subsection (15) of this
section.
(c) The value of sold forfeited property is the sale price. The
value of retained forfeited property is the fair market value of the
property at the time of seizure, determined when possible by reference
to an applicable commonly used index, such as the index used by the
Code Rev/AI:crs 37 I-2465.1/11
department of licensing for valuation of motor vehicles. A seizing
agency may use, but need not use, an independent qualified appraiser
to determine the value of retained property. If an appraiser is used,
the value of the property appraised is net of the cost of the
appraisal. The value of destroyed property and retained firearms or
illegal property is zero.
(10) Forfeited property and net proceeds not required to be paid
to the state treasurer shall be retained by the seizing law
enforcement agency exclusively for the expansion and improvement of
controlled substances related law enforcement activity. Money
retained under this section may not be used to supplant preexisting
funding sources.
(11) Controlled substances listed in Schedule I, II, III, IV, and
V that are possessed, transferred, sold, or offered for sale in
violation of this chapter are contraband and shall be seized and
summarily forfeited to the state. Controlled substances listed in
Schedule I, II, III, IV, and V, which are seized or come into the
possession of the board, the owners of which are unknown, are
contraband and shall be summarily forfeited to the board.
(12) Species of plants from which controlled substances in
Schedules I and II may be derived which have been planted or
cultivated in violation of this chapter, or of which the owners or
cultivators are unknown, or which are wild growths, may be seized and
summarily forfeited to the board.
(13) The failure, upon demand by a board inspector or law
enforcement officer, of the person in occupancy or in control of land
or premises upon which the species of plants are growing or being
stored to produce an appropriate registration or proof that he or she
is the holder thereof constitutes authority for the seizure and
forfeiture of the plants.
(14) Upon the entry of an order of forfeiture of real property,
the court shall forward a copy of the order to the assessor of the
county in which the property is located. Orders for the forfeiture of
real property shall be entered by the superior court, subject to court
rules. Such an order shall be filed by the seizing agency in the
Code Rev/AI:crs 38 I-2465.1/11
county auditor’s records in the county in which the real property is
located.
(15)(a) A landlord may assert a claim against proceeds from the
sale of assets seized and forfeited under subsection (7)(b) of this
section, only if:
(((a))) (i) A law enforcement officer, while acting in his or her
official capacity, directly caused damage to the complaining
landlord’s property while executing a search of a tenant’s residence;
and
(((b))) (ii) The landlord has applied any funds remaining in the
tenant’s deposit, to which the landlord has a right under chapter
59.18 RCW, to cover the damage directly caused by a law enforcement
officer prior to asserting a claim under the provisions of this
section;
(((i))) (A) Only if the funds applied under (((b))) (a)(ii) of
this subsection are insufficient to satisfy the damage directly caused
by a law enforcement officer, may the landlord seek compensation for
the damage by filing a claim against the governmental entity under
whose authority the law enforcement agency operates within thirty days
after the search;
(((ii))) (B) Only if the governmental entity denies or fails to
respond to the landlord’s claim within sixty days of the date of
filing, may the landlord collect damages under this subsection by
filing within thirty days of denial or the expiration of the sixty-day
period, whichever occurs first, a claim with the seizing law
enforcement agency. The seizing law enforcement agency must notify
the landlord of the status of the claim by the end of the thirty-day
period. Nothing in this section requires the claim to be paid by the
end of the sixty-day or thirty-day period.
(((c))) (b) For any claim filed under (((b))) (a)(ii) of this
subsection, the law enforcement agency shall pay the claim unless the
agency provides substantial proof that the landlord either:
(i) Knew or consented to actions of the tenant in violation of
this chapter or chapter 69.41 or 69.52 RCW; or
Code Rev/AI:crs 39 I-2465.1/11
(ii) Failed to respond to a notification of the illegal activity,
provided by a law enforcement agency under RCW 59.18.075, within seven
days of receipt of notification of the illegal activity.
(16) The landlord’s claim for damages under subsection (15) of
this section may not include a claim for loss of business and is
limited to:
(a) Damage to tangible property and clean-up costs;
(b) The lesser of the cost of repair or fair market value of the
damage directly caused by a law enforcement officer;
(c) The proceeds from the sale of the specific tenant’s property
seized and forfeited under subsection (7)(b) of this section; and
(d) The proceeds available after the seizing law enforcement
agency satisfies any bona fide security interest in the tenant’s
property and costs related to sale of the tenant’s property as
provided by subsection (9)(b) of this section.
(17) Subsections (15) and (16) of this section do not limit any
other rights a landlord may have against a tenant to collect for
damages. However, if a law enforcement agency satisfies a landlord’s
claim under subsection (15) of this section, the rights the landlord
has against the tenant for damages directly caused by a law
enforcement officer under the terms of the landlord and tenant’s
contract are subrogated to the law enforcement agency.
PART IV
DEDICATED MARIJUANA FUND
NEW SECTION. Sec. 26. (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.
(2) All moneys received by the state liquor control board or any
employee thereof from marijuana-related activities shall be deposited
each day in a depository approved by the state treasurer and
Code Rev/AI:crs 40 I-2465.1/11
transferred to the state treasurer to be credited to the dedicated
marijuana fund.
(3) Disbursements from the dedicated marijuana fund shall be on
authorization of the state liquor control board or a duly authorized
representative thereof.
NEW SECTION. Sec. 27. (1) There is levied and collected a
marijuana excise tax equal to twenty-five percent of the selling price
on each wholesale sale in this state of marijuana by a licensed
marijuana producer to a licensed marijuana processor or another
licensed marijuana producer. This tax is the obligation of the
licensed marijuana producer.
(2) There is levied and collected a marijuana excise tax equal to
twenty-five percent of the selling price on each wholesale sale in
this state of useable marijuana or marijuana-infused product by a
licensed marijuana processor to a licensed marijuana retailer. This
tax is the obligation of the licensed marijuana processor.
(3) There is levied and collected a marijuana excise tax equal to
twenty-five percent of the selling price on each retail sale in this
state of useable marijuana and marijuana-infused products. This tax
is the obligation of the licensed marijuana retailer, is separate and
in addition to general state and local sales and use taxes that apply
to retail sales of tangible personal property, and is part of the
total retail price to which general state and local sales and use
taxes apply.
(4) All revenues collected from the marijuana excise taxes imposed
under subsections (1) through (3) of this section shall be deposited
each day in a depository approved by the state treasurer and
transferred to the state treasurer to be credited to the dedicated
marijuana fund.
(5) The state liquor control board shall regularly review the tax
levels established under this section and make recommendations to the
legislature as appropriate regarding adjustments that would further
the goal of discouraging use while undercutting illegal market prices.
Code Rev/AI:crs 41 I-2465.1/11
NEW SECTION. Sec. 28. All marijuana excise taxes collected from
sales of marijuana, useable marijuana, and marijuana-infused products
under section 27 of this act, and the license fees, penalties, and
forfeitures derived under this act from marijuana producer, marijuana
processor, and marijuana retailer licenses shall every three months be
disbursed by the state liquor control board as follows:
(1) One hundred twenty-five thousand dollars to the department of
social and health services to design and administer the Washington
state healthy youth survey, analyze the collected data, and produce
reports, in collaboration with the office of the superintendent of
public instruction, department of health, department of commerce,
family policy council, and state liquor control board. The survey
shall be conducted at least every two years and include questions
regarding, but not necessarily limited to, academic achievement, age
at time of substance use initiation, antisocial behavior of friends,
attitudes toward antisocial behavior, attitudes toward substance use,
laws and community norms regarding antisocial behavior, family
conflict, family management, parental attitudes toward substance use,
peer rewarding of antisocial behavior, perceived risk of substance
use, and rebelliousness. Funds disbursed under this subsection may be
used to expand administration of the healthy youth survey to student
populations attending institutions of higher education in Washington;
(2) Fifty thousand dollars to the department of social and health
services for the purpose of contracting with the Washington state
institute for public policy to conduct the cost-benefit evaluation and
produce the reports described in section 30 of this act. This
appropriation shall end after production of the final report required
by section 30 of this act;
(3) Five thousand dollars to the University of Washington alcohol
and drug abuse institute for the creation, maintenance, and timely
updating of web-based public education materials providing medically
and scientifically accurate information about the health and safety
risks posed by marijuana use;
Code Rev/AI:crs 42 I-2465.1/11
(4) An amount not exceeding one million two hundred fifty thousand
dollars to the state liquor control board as is necessary for
administration of this act;
(5) Of the funds remaining after the disbursements identified in
subsections (1) through (4) of this section:
(a) Fifteen percent to the department of social and health
services division of behavioral health and recovery for implementation
and maintenance of programs and practices aimed at the prevention or
reduction of maladaptive substance use, substance-use disorder,
substance abuse or substance dependence, as these terms are defined in
the Diagnostic and Statistical Manual of Mental Disorders, among
middle school and high school age students, whether as an explicit
goal of a given program or practice or as a consistently corresponding
effect of its implementation; PROVIDED, That:
(i) Of the funds disbursed under (a) of this subsection, at least
eighty-five percent must be directed to evidence-based and costbeneficial
programs and practices that produce objectively measurable
results; and
(ii) Up to fifteen percent of the funds disbursed under (a) of
this subsection may be directed to research-based and emerging best
practices or promising practices.
In deciding which programs and practices to fund, the secretary of
the department of social and health services shall consult, at least
annually, with the University of Washington’s social development
research group and the University of Washington’s alcohol and drug
abuse institute;
(b) Ten percent to the department of health for the creation,
implementation, operation, and management of a marijuana education and
public health program that contains the following:
(i) A marijuana use public health hotline that provides referrals
to substance abuse treatment providers, utilizes evidence-based or
research-based public health approaches to minimizing the harms
associated with marijuana use, and does not solely advocate an
abstinence-only approach;
Code Rev/AI:crs 43 I-2465.1/11
(ii) A grants program for local health departments or other local
community agencies that supports development and implementation of
coordinated intervention strategies for the prevention and reduction
of marijuana use by youth; and
(iii) Media-based education campaigns across television, internet,
radio, print, and out-of-home advertising, separately targeting youth
and adults, that provide medically and scientifically accurate
information about the health and safety risks posed by marijuana use;
(c) Six-tenths of one percent to the University of Washington and
four-tenths of one percent to Washington State University for research
on the short and long-term effects of marijuana use, to include but
not be limited to formal and informal methods for estimating and
measuring intoxication and impairment, and for the dissemination of
such research;
(d) Fifty percent to the state basic health plan trust account to
be administered by the Washington basic health plan administrator and
used as provided under chapter 70.47 RCW;
(e) Five percent to the Washington state health care authority to
be expended exclusively through contracts with community health
centers to provide primary health and dental care services, migrant
health services, and maternity health care services as provided under
RCW 41.05.220;
(f) Three-tenths of one percent to the office of the
superintendent of public instruction to fund grants to building
bridges programs under chapter 28A.175 RCW; and
(g) The remainder to the general fund.
NEW SECTION. Sec. 29. The department of social and health
services and the department of health shall, by December 1, 2013,
adopt rules not inconsistent with the spirit of this act as are deemed
necessary or advisable to carry into effect the provisions of section
28 of this act.
NEW SECTION. Sec. 30. (1) The Washington state institute for
public policy shall conduct cost-benefit evaluations of the
Code Rev/AI:crs 44 I-2465.1/11
implementation of this act. A preliminary report, and recommendations
to appropriate committees of the legislature, shall be made by
September 1, 2015, and the first final report with recommendations by
September 1, 2017. Subsequent reports shall be due September 1, 2022,
and September 1, 2032.
(2) The evaluation of the implementation of this act shall
include, but not necessarily be limited to, consideration of the
following factors:
(a) Public health, to include but not be limited to:
(i) Health costs associated with marijuana use;
(ii) Health costs associated with criminal prohibition of
marijuana, including lack of product safety or quality control
regulations and the relegation of marijuana to the same illegal market
as potentially more dangerous substances; and
(iii) The impact of increased investment in the research,
evaluation, education, prevention and intervention programs,
practices, and campaigns identified in section 16 of this act on rates
of marijuana-related maladaptive substance use and diagnosis of
marijuana-related substance-use disorder, substance abuse, or
substance dependence, as these terms are defined in the Diagnostic and
Statistical Manual of Mental Disorders;
(b) Public safety, to include but not be limited to:
(i) Public safety issues relating to marijuana use; and
(ii) Public safety issues relating to criminal prohibition of
marijuana;
(c) Youth and adult rates of the following:
(i) Marijuana use;
(ii) Maladaptive use of marijuana; and
(iii) Diagnosis of marijuana-related substance-use disorder,
substance abuse, or substance dependence, including primary,
secondary, and tertiary choices of substance;
(d) Economic impacts in the private and public sectors, including
but not limited to:
(i) Jobs creation;
(ii) Workplace safety;
Code Rev/AI:crs 45 I-2465.1/11
(iii) Revenues; and
(iv) Taxes generated for state and local budgets;
(e) Criminal justice impacts, to include but not be limited to:
(i) Use of public resources like law enforcement officers and
equipment, prosecuting attorneys and public defenders, judges and
court staff, the Washington state patrol crime lab and identification
and criminal history section, jails and prisons, and misdemeanant and
felon supervision officers to enforce state criminal laws regarding
marijuana; and
(ii) Short and long-term consequences of involvement in the
criminal justice system for persons accused of crimes relating to
marijuana, their families, and their communities; and
(f) State and local agency administrative costs and revenues.
PART V
DRIVING UNDER THE INFLUENCE OF MARIJUANA
Sec. 31. 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.
(2) The test or tests of breath shall be administered at the
direction of a law enforcement officer having reasonable grounds to
believe the person to have been driving or in actual physical control
of a motor vehicle within this state while under the influence of
Code Rev/AI:crs 46 I-2465.1/11
intoxicating liquor or any drug or the person to have been driving or
in actual physical control of a motor vehicle while having alcohol or
THC in a concentration in violation of RCW 46.61.503 in his or her
system and being under the age of twenty-one. However, in those
instances where the person is incapable due to physical injury,
physical incapacity, or other physical limitation, of providing a
breath sample or where the person is being treated in a hospital,
clinic, doctor’s office, emergency medical vehicle, ambulance, or
other similar facility or where the officer has reasonable grounds to
believe that the person is under the influence of a drug, a blood test
shall be administered by a qualified person as provided in RCW
46.61.506(5). The officer shall inform the person of his or her right
to refuse the breath or blood test, and of his or her right to have
additional tests administered by any qualified person of his or her
choosing as provided in RCW 46.61.506. The officer shall warn the
driver, in substantially the following language, that:
(a) If the driver refuses to take the test, the driver’s license,
permit, or privilege to drive will be revoked or denied for at least
one year; and
(b) If the driver refuses to take the test, the driver’s refusal
to take the test may be used in a criminal trial; and
(c) 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; or ((if))
(ii) 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; or ((if))
(iii) The driver is under age twenty-one and the driver is in
violation of RCW 46.61.502 or 46.61.504; and
Code Rev/AI:crs 47 I-2465.1/11
(d) If the driver’s license, permit, or privilege to drive is
suspended, revoked, or denied the driver may be eligible to
immediately apply for an ignition interlock driver’s license.
(3) Except as provided in this section, the test administered
shall be of the breath only. If an individual is unconscious or is
under arrest for the crime of vehicular homicide as provided in RCW
46.61.520 or vehicular assault as provided in RCW 46.61.522, or if an
individual is under arrest for the crime of driving while under the
influence of intoxicating liquor or drugs as provided in RCW
46.61.502, which arrest results from an accident in which there has
been serious bodily injury to another person, a breath or blood test
may be administered without the consent of the individual so arrested.
(4) Any person who is dead, unconscious, or who is otherwise in a
condition rendering him or her incapable of refusal, shall be deemed
not to have withdrawn the consent provided by subsection (1) of this
section and the test or tests may be administered, subject to the
provisions of RCW 46.61.506, and the person shall be deemed to have
received the warnings required under subsection (2) of this section.
(5) If, following his or her arrest and receipt of warnings under
subsection (2) of this section, the person arrested refuses upon the
request of a law enforcement officer to submit to a test or tests of
his or her breath or blood, no test shall be given except as
authorized under subsection (3) or (4) of this section.
(6) If, after arrest and after the other applicable conditions and
requirements of this section have been satisfied, a test or tests of
the person’s blood or breath is administered and the test results
indicate that the alcohol concentration of the person’s breath or
blood is 0.08 or more, or the THC concentration of the person’s blood
is 5.00 or more, if the person is age twenty-one or 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, the arresting officer or other law enforcement officer at
whose direction any test has been given, or the department, where
Code Rev/AI:crs 48 I-2465.1/11
applicable, if the arrest results in a test of the person’s blood,
shall:
(a) Serve notice in writing on the person on behalf of the
department of its intention to suspend, revoke, or deny the person’s
license, permit, or privilege to drive as required by subsection (7)
of this section;
(b) Serve notice in writing on the person on behalf of the
department of his or her right to a hearing, specifying the steps he
or she must take to obtain a hearing as provided by subsection (8) of
this section and that the person waives the right to a hearing if he
or she receives an ignition interlock driver’s license;
(c) Mark the person’s Washington state driver’s license or permit
to drive, if any, in a manner authorized by the department;
(d) Serve notice in writing that the marked license or permit, if
any, is a temporary license that is valid for sixty days from the date
of arrest or from the date notice has been given in the event notice
is given by the department following a blood test, or until the
suspension, revocation, or denial of the person’s license, permit, or
privilege to drive is sustained at a hearing pursuant to subsection
(8) of this section, whichever occurs first. No temporary license is
valid to any greater degree than the license or permit that it
replaces; and
(e) Immediately notify the department of the arrest and transmit
to the department within seventy-two hours, except as delayed as the
result of a blood test, a sworn report or report under a declaration
authorized by RCW 9A.72.085 that states:
(i) That the officer had reasonable grounds to believe the
arrested person had been driving or was in actual physical control of
a motor vehicle within this state while under the influence of
intoxicating liquor or drugs, or both, or was under the age of twentyone
years and had been driving or was in actual physical control of a
motor vehicle while having an alcohol or THC concentration in
violation of RCW 46.61.503;
(ii) That after receipt of the warnings required by subsection (2)
of this section the person refused to submit to a test of his or her
Code Rev/AI:crs 49 I-2465.1/11
blood or breath, or a test was administered and the results indicated
that the alcohol concentration of the person’s breath or blood was
0.08 or more, or the THC concentration of the person’s blood was 5.00
or more, if the person is age twenty-one or over, or that the alcohol
concentration of the person’s breath or blood was 0.02 or more, or the
THC concentration of the person’s blood was above 0.00, if the person
is under the age of twenty-one; and
(iii) Any other information that the director may require by rule.
(7) The department of licensing, upon the receipt of a sworn
report or report under a declaration authorized by RCW 9A.72.085 under
subsection (6)(e) of this section, shall suspend, revoke, or deny the
person’s license, permit, or privilege to drive or any nonresident
operating privilege, as provided in RCW 46.20.3101, such suspension,
revocation, or denial to be effective beginning sixty days from the
date of arrest or from the date notice has been given in the event
notice is given by the department following a blood test, or when
sustained at a hearing pursuant to subsection (8) of this section,
whichever occurs first.
(8) A person receiving notification under subsection (6)(b) of
this section may, within twenty days after the notice has been given,
request in writing a formal hearing before the department. The person
shall pay a fee of two hundred dollars as part of the request. If the
request is mailed, it must be postmarked within twenty days after
receipt of the notification. Upon timely receipt of such a request
for a formal hearing, including receipt of the required two hundred
dollar fee, the department shall afford the person an opportunity for
a hearing. The department may waive the required two hundred dollar
fee if the person is an indigent as defined in RCW 10.101.010. Except
as otherwise provided in this section, the hearing is subject to and
shall be scheduled and conducted in accordance with RCW 46.20.329 and
46.20.332. The hearing shall be conducted in the county of the
arrest, except that all or part of the hearing may, at the discretion
of the department, be conducted by telephone or other electronic
means. The hearing shall be held within sixty days following the
arrest or following the date notice has been given in the event notice
Code Rev/AI:crs 50 I-2465.1/11
is given by the department following a blood test, unless otherwise
agreed to by the department and the person, in which case the action
by the department shall be stayed, and any valid temporary license
marked under subsection (6)(c) of this section extended, if the person
is otherwise eligible for licensing. For the purposes of this
section, the scope of the hearing shall cover the issues of whether a
law enforcement officer had reasonable grounds to believe the person
had been driving or was in actual physical control of a motor vehicle
within this state while under the influence of intoxicating liquor or
any drug or had been driving or was in actual physical control of a
motor vehicle within this state while having alcohol in his or her
system in a concentration of 0.02 or more, or THC in his or her system
in a concentration above 0.00, if the person was under the age of
twenty-one, whether the person was placed under arrest, and (a)
whether the person refused to submit to the test or tests upon request
of the officer after having been informed that such refusal would
result in the revocation of the person’s license, permit, or privilege
to drive, or (b) if a test or tests were administered, whether the
applicable requirements of this section were satisfied before the
administration of the test or tests, whether the person submitted to
the test or tests, or whether a test was administered without express
consent as permitted under this section, and whether the test or tests
indicated that the alcohol concentration of the person’s breath or
blood was 0.08 or more, or the THC concentration of the person’s blood
was 5.00 or more, if the person was age twenty-one or over at the time
of the arrest, or that the alcohol concentration of the person’s
breath or blood was 0.02 or more, or the THC concentration of the
person’s blood was above 0.00, if the person was under the age of
twenty-one at the time of the arrest. The sworn report or report
under a declaration authorized by RCW 9A.72.085 submitted by a law
enforcement officer is prima facie evidence that the officer had
reasonable grounds to believe the person had been driving or was in
actual physical control of a motor vehicle within this state while
under the influence of intoxicating liquor or drugs, or both, or the
person had been driving or was in actual physical control of a motor
Code Rev/AI:crs 51 I-2465.1/11
vehicle within this state while having alcohol in his or her system in
a concentration of 0.02 or more, or THC in his or her system in a
concentration above 0.00, and was under the age of twenty-one and that
the officer complied with the requirements of this section.
A hearing officer shall conduct the hearing, may issue subpoenas
for the attendance of witnesses and the production of documents, and
shall administer oaths to witnesses. The hearing officer shall not
issue a subpoena for the attendance of a witness at the request of the
person unless the request is accompanied by the fee required by RCW
5.56.010 for a witness in district court. The sworn report or report
under a declaration authorized by RCW 9A.72.085 of the law enforcement
officer and any other evidence accompanying the report shall be
admissible without further evidentiary foundation and the
certifications authorized by the criminal rules for courts of limited
jurisdiction shall be admissible without further evidentiary
foundation. The person may be represented by counsel, may question
witnesses, may present evidence, and may testify. The department
shall order that the suspension, revocation, or denial either be
rescinded or sustained.
(9) If the suspension, revocation, or denial is sustained after
such a hearing, the person whose license, privilege, or permit is
suspended, revoked, or denied has the right to file a petition in the
superior court of the county of arrest to review the final order of
revocation by the department in the same manner as an appeal from a
decision of a court of limited jurisdiction. Notice of appeal must be
filed within thirty days after the date the final order is served or
the right to appeal is waived. Notwithstanding RCW 46.20.334, RALJ
1.1, or other statutes or rules referencing de novo review, the appeal
shall be limited to a review of the record of the administrative
hearing. The appellant must pay the costs associated with obtaining
the record of the hearing before the hearing officer. The filing of
the appeal does not stay the effective date of the suspension,
revocation, or denial. A petition filed under this subsection must
include the petitioner’s grounds for requesting review. Upon granting
petitioner’s request for review, the court shall review the
Code Rev/AI:crs 52 I-2465.1/11
department’s final order of suspension, revocation, or denial as
expeditiously as possible. The review must be limited to a
determination of whether the department has committed any errors of
law. The superior court shall accept those factual determinations
supported by substantial evidence in the record: (a) That were
expressly made by the department; or (b) that may reasonably be
inferred from the final order of the department. The superior court
may reverse, affirm, or modify the decision of the department or
remand the case back to the department for further proceedings. The
decision of the superior court must be in writing and filed in the
clerk’s office with the other papers in the case. The court shall
state the reasons for the decision. If judicial relief is sought for
a stay or other temporary remedy from the department’s action, the
court shall not grant such relief unless the court finds that the
appellant is likely to prevail in the appeal and that without a stay
the appellant will suffer irreparable injury. If the court stays the
suspension, revocation, or denial it may impose conditions on such
stay.
(10)(a) If a person whose driver’s license, permit, or privilege
to drive has been or will be suspended, revoked, or denied under
subsection (7) of this section, other than as a result of a breath or
blood test refusal, and who has not committed an offense for which he
or she was granted a deferred prosecution under chapter 10.05 RCW,
petitions a court for a deferred prosecution on criminal charges
arising out of the arrest for which action has been or will be taken
under subsection (7) of this section, or notifies the department of
licensing of the intent to seek such a deferred prosecution, then the
license suspension or revocation shall be stayed pending entry of the
deferred prosecution. The stay shall not be longer than one hundred
fifty days after the date charges are filed, or two years after the
date of the arrest, whichever time period is shorter. If the court
stays the suspension, revocation, or denial, it may impose conditions
on such stay. If the person is otherwise eligible for licensing, the
department shall issue a temporary license, or extend any valid
temporary license marked under subsection (6) of this section, for the
Code Rev/AI:crs 53 I-2465.1/11
period of the stay. If a deferred prosecution treatment plan is not
recommended in the report made under RCW 10.05.050, or if treatment is
rejected by the court, or if the person declines to accept an offered
treatment plan, or if the person violates any condition imposed by the
court, then the court shall immediately direct the department to
cancel the stay and any temporary marked license or extension of a
temporary license issued under this subsection.
(b) A suspension, revocation, or denial imposed under this
section, other than as a result of a breath or blood test refusal,
shall be stayed if the person is accepted for deferred prosecution as
provided in chapter 10.05 RCW for the incident upon which the
suspension, revocation, or denial is based. If the deferred
prosecution is terminated, the stay shall be lifted and the
suspension, revocation, or denial reinstated. If the deferred
prosecution is completed, the stay shall be lifted and the suspension,
revocation, or denial canceled.
(c) The provisions of (b) of this subsection relating to a stay of
a suspension, revocation, or denial and the cancellation of any
suspension, revocation, or denial do not apply to the suspension,
revocation, denial, or disqualification of a person’s commercial
driver’s license or privilege to operate a commercial motor vehicle.
(11) When it has been finally determined under the procedures of
this section that a nonresident’s privilege to operate a motor vehicle
in this state has been suspended, revoked, or denied, the department
shall give information in writing of the action taken to the motor
vehicle administrator of the state of the person’s residence and of
any state in which he or she has a license.
Sec. 32. RCW 46.20.3101 and 2004 c 95 s 4 and 2004 c 68 s 3 are
each reenacted and amended to read as follows:
Pursuant to RCW 46.20.308, the department shall suspend, revoke,
or deny the arrested person’s license, permit, or privilege to drive
as follows:
(1) In the case of a person who has refused a test or tests:
Code Rev/AI:crs 54 I-2465.1/11
(a) For a first refusal within seven years, where there has not
been a previous incident within seven years that resulted in
administrative action under this section, revocation or denial for one
year;
(b) For a second or subsequent refusal within seven years, or for
a first refusal where there has been one or more previous incidents
within seven years that have resulted in administrative action under
this section, revocation or denial for two years or until the person
reaches age twenty-one, whichever is longer.
(2) In the case of an incident where a person has submitted to or
been administered a test or tests indicating that the alcohol
concentration of the person’s breath or blood was 0.08 or more, or
that the THC concentration of the person’s blood was 5.00 or more:
(a) For a first incident within seven years, where there has not
been a previous incident within seven years that resulted in
administrative action under this section, suspension for ninety days;
(b) For a second or subsequent incident within seven years,
revocation or denial for two years.
(3) In the case of an incident where a person under age 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 0.02 or
more, or that the THC concentration of the person’s blood was above
0.00:
(a) For a first incident within seven years, suspension or denial
for ninety days;
(b) For a second or subsequent incident within seven years,
revocation or denial for one year or until the person reaches age
twenty-one, whichever is longer.
(4) The department shall grant credit on a day-for-day basis for
any portion of a suspension, revocation, or denial already served
under this section for a suspension, revocation, or denial imposed
under RCW 46.61.5055 arising out of the same incident.
Sec. 33. RCW 46.61.502 and 2011 c 293 s 2 are each amended to
read as follows:
Code Rev/AI:crs 55 I-2465.1/11
(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:
(a) And the person has, within two hours after driving, an alcohol
concentration of 0.08 or higher as shown by analysis of the person’s
breath or blood made under RCW 46.61.506; or
(b) 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
(c) While the person is under the influence of or affected by
intoxicating liquor, marijuana, or any drug; or
(((c))) (d) While the person is under the combined influence of or
affected by intoxicating liquor, marijuana, and any drug.
(2) The fact that a person charged with a violation of this
section is or has been entitled to use a drug under the laws of this
state shall not constitute a defense against a charge of violating
this section.
(3)(a) It is an affirmative defense to a violation of subsection
(1)(a) of this section, which the defendant must prove by a
preponderance of the evidence, that the defendant consumed a
sufficient quantity of alcohol after the time of driving and before
the administration of an analysis of the person’s breath or blood to
cause the defendant’s alcohol concentration to be 0.08 or more within
two hours after driving. The court shall not admit evidence of this
defense unless the defendant notifies the prosecution prior to the
omnibus or pretrial hearing in the case of the defendant’s intent to
assert the affirmative defense.
(b) It is an affirmative defense to a violation of subsection (1)(b)
of this section, which the defendant must prove by a preponderance of
the evidence, that the defendant consumed a sufficient quantity of
marijuana after the time of driving and before the administration of
an analysis of the person’s blood to cause the defendant’s THC
concentration to be 5.00 or more within two hours after driving. The
court shall not admit evidence of this defense unless the defendant
Code Rev/AI:crs 56 I-2465.1/11
notifies the prosecution prior to the omnibus or pretrial hearing in
the case of the defendant’s intent to assert the affirmative defense.
(4)(a) Analyses of blood or breath samples obtained more than two
hours after the alleged driving may be used as evidence that within
two hours of the alleged driving, a person had an alcohol
concentration of 0.08 or more in violation of subsection (1)(a) of
this section, and in any case in which the analysis shows an alcohol
concentration above 0.00 may be used as evidence that a person was
under the influence of or affected by intoxicating liquor or any drug
in violation of subsection (1)(((b) or)) (c) or (d) of this section.
(b) Analyses of blood samples obtained more than two hours after the
alleged driving may be used as evidence that within two hours of the
alleged driving, a person had a THC concentration of 5.00 or more in
violation of subsection (1)(b) of this section, and in any case in
which the analysis shows a THC concentration above 0.00 may be used as
evidence that a person was under the influence of or affected by
marijuana in violation of subsection (1)(c) or (d) of this section.
(5) Except as provided in subsection (6) of this section, a
violation of this section is a gross misdemeanor.
(6) It is a class C felony punishable under chapter 9.94A RCW, or
chapter 13.40 RCW if the person is a juvenile, if:
(a) The person has four or more prior offenses within ten years as
defined in RCW 46.61.5055; or
(b) The person has ever previously been convicted of:
(i) Vehicular homicide while under the influence of intoxicating
liquor or any drug, RCW 46.61.520(1)(a);
(ii) Vehicular assault while under the influence of intoxicating
liquor or any drug, RCW 46.61.522(1)(b);
(iii) An out-of-state offense comparable to the offense specified
in (b)(i) or (ii) of this subsection; or
(iv) A violation of this subsection (6) or RCW 46.61.504(6).
Sec. 34. RCW 46.61.503 and 1998 c 213 s 4, 1998 c 207 s 5, and
1998 c 41 s 8 are each reenacted and amended to read as follows:
Code Rev/AI:crs 57 I-2465.1/11
(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 specified in RCW 46.61.502, as shown by analysis of the
person’s breath or blood made under RCW 46.61.506; or
(ii) A THC concentration above 0.00 but less than the
concentration specified in RCW 46.61.502, as shown by analysis of the
person’s blood made under RCW 46.61.506.
(2) It is an affirmative defense to a violation of subsection (1)
of this section, which the defendant must prove by a preponderance of
the evidence, that the defendant consumed a sufficient quantity of
alcohol or marijuana after the time of driving or being in physical
control and before the administration of an analysis of the person’s
breath or blood to cause the defendant’s alcohol or THC concentration
to be in violation of subsection (1) of this section within two hours
after driving or being in physical control. The court shall not admit
evidence of this defense unless the defendant notifies the prosecution
prior to the earlier of: (a) Seven days prior to trial; or (b) the
omnibus or pretrial hearing in the case of the defendant’s intent to
assert the affirmative defense.
(3) Analyses of blood or breath samples obtained more than two
hours after the alleged driving or being in physical control may be
used as evidence that within two hours of the alleged driving or being
in physical control, a person had an alcohol or THC concentration in
violation of subsection (1) of this section.
(4) A violation of this section is a misdemeanor.
Sec. 35. RCW 46.61.504 and 2011 c 293 s 3 are each amended to
read as follows:
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(1) A person is guilty of being in actual physical control of a
motor vehicle while under the influence of intoxicating liquor or any
drug if the person has actual physical control of a vehicle within
this state:
(a) And the person has, within two hours after being in actual
physical control of the vehicle, an alcohol concentration of 0.08 or
higher as shown by analysis of the person’s breath or blood made under
RCW 46.61.506; or
(b) The person has, within two hours after being in actual
physical control of a vehicle, a THC concentration of 5.00 or higher
as shown by analysis of the person’s blood made under RCW 46.61.506;
or
(c) While the person is under the influence of or affected by
intoxicating liquor or any drug; or
(((c))) (d) While the person is under the combined influence of or
affected by intoxicating liquor and any drug.
(2) The fact that a person charged with a violation of this
section is or has been entitled to use a drug under the laws of this
state does not constitute a defense against any charge of violating
this section. No person may be convicted under this section if, prior
to being pursued by a law enforcement officer, the person has moved
the vehicle safely off the roadway.
(3)(a) It is an affirmative defense to a violation of subsection
(1)(a) of this section which the defendant must prove by a
preponderance of the evidence that the defendant consumed a sufficient
quantity of alcohol after the time of being in actual physical control
of the vehicle and before the administration of an analysis of the
person’s breath or blood to cause the defendant’s alcohol
concentration to be 0.08 or more within two hours after being in such
control. The court shall not admit evidence of this defense unless
the defendant notifies the prosecution prior to the omnibus or
pretrial hearing in the case of the defendant’s intent to assert the
affirmative defense.
(b) It is an affirmative defense to a violation of subsection (1)(b)
of this section, which the defendant must prove by a preponderance of
Code Rev/AI:crs 59 I-2465.1/11
the evidence, that the defendant consumed a sufficient quantity of
marijuana after the time of being in actual physical control of the
vehicle and before the administration of an analysis of the person’s
blood to cause the defendant’s THC concentration to be 5.00 or more
within two hours after being in control of the vehicle. The court
shall not admit evidence of this defense unless the defendant notifies
the prosecution prior to the omnibus or pretrial hearing in the case
of the defendant’s intent to assert the affirmative defense.
(4)(a) Analyses of blood or breath samples obtained more than two
hours after the alleged being in actual physical control of a vehicle
may be used as evidence that within two hours of the alleged being in
such control, a person had an alcohol concentration of 0.08 or more in
violation of subsection (1)(a) of this section, and in any case in
which the analysis shows an alcohol concentration above 0.00 may be
used as evidence that a person was under the influence of or affected
by intoxicating liquor or any drug in violation of subsection (1)(((b)
or)) (c) or (d) of this section.
(b) Analyses of blood samples obtained more than two hours after the
alleged being in actual physical control of a vehicle may be used as
evidence that within two hours of the alleged being in control of the
vehicle, a person had a THC concentration of 5.00 or more in violation
of subsection (1)(b) of this section, and in any case in which the
analysis shows a THC concentration above 0.00 may be used as evidence
that a person was under the influence of or affected by marijuana in
violation of subsection (1)(c) or (d) of this section.
(5) Except as provided in subsection (6) of this section, a
violation of this section is a gross misdemeanor.
(6) It is a class C felony punishable under chapter 9.94A RCW, or
chapter 13.40 RCW if the person is a juvenile, if:
(a) The person has four or more prior offenses within ten years as
defined in RCW 46.61.5055; or
(b) The person has ever previously been convicted of:
(i) Vehicular homicide while under the influence of intoxicating
liquor or any drug, RCW 46.61.520(1)(a);
Code Rev/AI:crs 60 I-2465.1/11
(ii) Vehicular assault while under the influence of intoxicating
liquor or any drug, RCW 46.61.522(1)(b);
(iii) An out-of-state offense comparable to the offense specified
in (b)(i) or (ii) of this subsection; or
(iv) A violation of this subsection (6) or RCW 46.61.502(6).
Sec. 36. RCW 46.61.50571 and 2000 c 52 s 1 are each amended to
read as follows:
(1) A defendant who is charged with an offense involving driving
while under the influence as defined in RCW 46.61.502, driving under
age twenty-one after consuming alcohol or marijuana as defined in RCW
46.61.503, or being in physical control of a vehicle while under the
influence as defined in RCW 46.61.504, shall be required to appear in
person before a judicial officer within one judicial day after the
arrest if the defendant is served with a citation or complaint at the
time of the arrest. A court may by local court rule waive the
requirement for appearance within one judicial day if it provides for
the appearance at the earliest practicable day following arrest and
establishes the method for identifying that day in the rule.
(2) A defendant who is charged with an offense involving driving
while under the influence as defined in RCW 46.61.502, driving under
age twenty-one after consuming alcohol or marijuana as defined in RCW
46.61.503, or being in physical control of a vehicle while under the
influence as defined in RCW 46.61.504, and who is not served with a
citation or complaint at the time of the incident, shall appear in
court for arraignment in person as soon as practicable, but in no
event later than fourteen days after the next day on which court is in
session following the issuance of the citation or the filing of the
complaint or information.
(3) At the time of an appearance required by this section, the
court shall determine the necessity of imposing conditions of pretrial
release according to the procedures established by court rule for a
preliminary appearance or an arraignment.
(4) Appearances required by this section are mandatory and may not
be waived.
Code Rev/AI:crs 61 I-2465.1/11
Sec. 37. RCW 46.61.506 and 2010 c 53 s 1 are each amended to read
as follows:
(1) Upon the trial of any civil or criminal action or proceeding
arising out of acts alleged to have been committed by any person while
driving or in actual physical control of a vehicle while under the
influence of intoxicating liquor or any drug, if the person’s alcohol
concentration is less than 0.08 or 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.
(2)(a) The breath analysis of the person’s alcohol concentration
shall be based upon grams of alcohol per two hundred ten liters of
breath.
(b) The blood analysis of the person’s THC concentration shall be
based upon nanograms per milliliter of whole blood.
(c) The foregoing provisions of this section shall not be
construed as limiting the introduction of any other competent evidence
bearing upon the question whether the person was under the influence
of intoxicating liquor or any drug.
(3) Analysis of the person’s blood or breath to be considered
valid under the provisions of this section or RCW 46.61.502 or
46.61.504 shall have been performed according to methods approved by
the state toxicologist and by an individual possessing a valid permit
issued by the state toxicologist for this purpose. The state
toxicologist is directed to approve satisfactory techniques or
methods, to supervise the examination of individuals to ascertain
their qualifications and competence to conduct such analyses, and to
issue permits which shall be subject to termination or revocation at
the discretion of the state toxicologist.
(4)(a) A breath test performed by any instrument approved by the
state toxicologist shall be admissible at trial or in an
administrative proceeding if the prosecution or department produces
prima facie evidence of the following:
(i) The person who performed the test was authorized to perform
such test by the state toxicologist;
Code Rev/AI:crs 62 I-2465.1/11
(ii) The person being tested did not vomit or have anything to
eat, drink, or smoke for at least fifteen minutes prior to
administration of the test;
(iii) The person being tested did not have any foreign substances,
not to include dental work, fixed or removable, in his or her mouth at
the beginning of the fifteen-minute observation period;
(iv) Prior to the start of the test, the temperature of any liquid
simulator solution utilized as an external standard, as measured by a
thermometer approved of by the state toxicologist was thirty-four
degrees centigrade plus or minus 0.3 degrees centigrade;
(v) The internal standard test resulted in the message “verified”;
(vi) The two breath samples agree to within plus or minus ten
percent of their mean to be determined by the method approved by the
state toxicologist;
(vii) The result of the test of the liquid simulator solution
external standard or dry gas external standard result did lie between
.072 to .088 inclusive; and
(viii) All blank tests gave results of .000.
(b) For purposes of this section, “prima facie evidence” is
evidence of sufficient circumstances that would support a logical and
reasonable inference of the facts sought to be proved. In assessing
whether there is sufficient evidence of the foundational facts, the
court or administrative tribunal is to assume the truth of the
prosecution’s or department’s evidence and all reasonable inferences
from it in a light most favorable to the prosecution or department.
(c) 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, however, shall not preclude the
admissibility of the test once the prosecution or department has made
a prima facie showing of the requirements contained in (a) of this
subsection. Instead, such challenges may be considered by the trier
of fact in determining what weight to give to the test result.
(5) When a blood test is administered under the provisions of RCW
46.20.308, the withdrawal of blood for the purpose of determining its
Code Rev/AI:crs 63 I-2465.1/11
alcoholic or drug content may be performed only by a physician, a
registered nurse, a licensed practical nurse, a nursing assistant as
defined in chapter 18.88A RCW, a physician assistant as defined in
chapter 18.71A RCW, a first responder as defined in chapter 18.73 RCW,
an emergency medical technician as defined in chapter 18.73 RCW, a
health care assistant as defined in chapter 18.135 RCW, or any
technician trained in withdrawing blood. This limitation shall not
apply to the taking of breath specimens.
(6) The person tested may have a physician, or a qualified
technician, chemist, registered nurse, or other qualified person of
his or her own choosing administer one or more tests in addition to
any administered at the direction of a law enforcement officer. The
test will be admissible if the person establishes the general
acceptability of the testing technique or method. The failure or
inability to obtain an additional test by a person shall not preclude
the admission of evidence relating to the test or tests taken at the
direction of a law enforcement officer.
(7) Upon the request of the person who shall submit to a test or
tests at the request of a law enforcement officer, full information
concerning the test or tests shall be made available to him or her or
his or her attorney.
PART VI
CONSTRUCTION
NEW SECTION. Sec. 38. Sections 4 through 18 of this act are each
added to chapter 69.50 RCW under the subchapter heading “article III –
– regulation of manufacture, distribution, and dispensing of
controlled substances.”
NEW SECTION. Sec. 39. Section 21 of this act is added to chapter
69.50 RCW under the subchapter heading “article IV — offenses and
penalties.”
Code Rev/AI:crs 64 I-2465.1/11
NEW SECTION. Sec. 40. Sections 26 through 30 of this act are
each added to chapter 69.50 RCW under the subchapter heading “article
V — enforcement and administrative provisions.”
NEW SECTION. Sec. 41. The code reviser shall prepare a bill for
introduction at the next legislative session that corrects references
to the sections affected by this act.