DUI Provision In Washington Marijuana Legalization Initiative 'I-502' Creates Controversy

Washington I 502

DUI Provision in Washington Initiative-502 Creates Controversy Among Supporters of Medical Marijuana

By Christopher J. McCann

Under Washington Initiative-502, drivers who test positive for 5 or more nanograms per milliliter of active THC (tetrahydrocannabinol) in their bloodstream are eligible for a conviction of DUI. THC is the principle psychoactive component of the cannabis plant. The set limit of 5ng/mL has backing from research conducted in 2005. Despite being a safety provision, I-502’s stance on DUI is heatedly contested by supporters of medical marijuana who believe that the ruling will put legal users at risk of unfair arrest.

Existing medical marijuana law in the state of Washington only prohibits patients from using their license to contest DUI charges made against them. Unsafe driving is unsafe driving. Although I-502 has not made specific claims to preempt this medical marijuana law, most agree that the new provision would apply to existing patients.

Critics of I-502 think that, legally, the new DUI provision makes medical marijuana patients extremely vulnerable. Tests conducted by Dr. Gil Mobley, a licensed provider of medical marijuana, garnered results suggesting that patients retain would-be illegal levels of THC in their systems for up to 4 hours after medication. Dr. Mobley’s research also concluded that patients who measured in at up to 47 ng/mL of THC in their bloodstream were still able to pass basic cognitive exams.

Such figures suggest that I-502’s legal limit is unreasonably low. A person can show a high THC level without being stoned. Medical marijuana patients would essentially be unable to drive legally. If those same patients happened to have been convicted of DUI within the last 10 years, they would essentially be committing a felony every time they decided to drive. The ethics of such a provision have resulted in heated debates between lawmakers and activists.

Those attempting to debunk the argument made by medical marijuana providers like Mobley believe that critics of I-502’s DUI provision are more concerned about potential losses to the medical marijuana business than the legal safety of existing patients. Supporters of the 5ng/mL limit cite studies that establish significant drops in THC level after smoking, even in long-term medical marijuana patients. They also cite results suggesting that drivers with more than 5ng/mL of THC in their blood are more likely to get into car crashes.

Speculatively, the strict DUI provision was introduced to Washington I-502 as a way to win over voters who would be otherwise skeptical about the safety of “legalizing marijuana.” The initiative also bans possession for anybody younger than 21 years old. Even if it was unintentional, the new DUI provision takes legal action against drivers under the influence of medical marijuana and starkly clears up the gray area in current Washington state medical marijuana law.

Legislative marijuana reform under Washington Initiative-502 will probably appear on ballots this November. The movement as a whole has received much attention because of corporate coffers that have invested a lot of money behind its passing. For now, there’s sure to be continued debate between the supporters and detractors of this divisive piece of legislature.

Christopher McCann is an Orange County DUI lawyer. McCann is a practicing lawyer at the Law Offices of Christopher J. McCann and generally writes on topics related to criminal defense and DUIs. McCann was voted as a “Rising Star Attorney” in 2010 by Southern California SuperLawyers Magazine.