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

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By Alex Newhouse

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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