Transcript Marijuana: Driving Under the Influence and Deferred

Paul Weatherly MA, CDP
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State Liquor Control Board rules and regulations
regarding the distribution and use of marijuana
Changes to rules of the road RCW 46.61 regarding
DUI offenses involving marijuana use prior to or
while in control of a motor vehicle.
Problems with enforcement of medical marijuana
law and lack of reconciliation with general
legalization of “recreational” marijuana
Problems doing assessments and diagnostics for
deferred prosecution and findings of dependency.
Resolution of various ethical dilemmas regarding
diagnosis for cannabis dependency.
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I-502 authorizes the state liquor control
board to regulate and tax marijuana for
persons twenty-one years of age and older,
and add a new threshold for driving under the
influence of marijuana.
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"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.
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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.
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"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.
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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.
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"Useable marijuana" means dried marijuana
flowers. The term "useable marijuana" does
not include marijuana-infused products.
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"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.
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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:
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(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;
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(b) Lot numbers of the marijuana, useable
marijuana, or marijuana-infused product;
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(c) THC concentration of the marijuana,
useable marijuana, or marijuana-infused
product;
Edible, inhalable, drinkable or transdermal
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(d) Medically and scientifically accurate
information about the health and safety risks
posed by marijuana use; and
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(e) Language required by RCW 69.04.480;
Drugs — Misbranding for
failure to state content of
habit forming drug.
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A drug or device shall be deemed to be misbranded if it is for
use by human beings and contains any quantity of
…..cannabis….. marijuana,…….; or any chemical derivative of
such substance, which derivative has been designated as
habit forming by regulations promulgated under section
502(d) of the federal act; unless its label bears the name and
quantity or proportion of such substance or derivative and in
juxtaposition therewith the statement "Warning -- May be
habit forming."
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(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.
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(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.
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(3) Licensed marijuana retailers shall not
display any signage in a window, on a door,
or on the outside of the premises of a retail
outlet that is visible to the general public
from a public right-of-way, other than a
single sign no larger than one thousand six
hundred square inches identifying the retail
outlet by the licensee's business or trade
name.
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(4) Licensed marijuana retailers shall not
display useable marijuana or marijuanainfused products in a manner that is visible to
the general public from a public right-ofway.
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(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.
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(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.
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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:
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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:
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(a) One ounce of useable marijuana;
By contrast medical marijuana law allows a
qualifying patient to have 24 ounces during
any 60 day period
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(b) Sixteen ounces of marijuana-infused
product in solid form;
By contrast medical marijuana law does not
have provisions regarding amounts for edible
or externally applied marijuana infused
products.
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(c) Seventy-two ounces of marijuana-infused
product in liquid form.
By contrast medical marijuana law does not
have provisions regarding amounts of liquid
forms of marijuana infused products.
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(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.
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RCW 46.20.308 and 2008 c 282 s 2 are each amended to
read as follows:
(1) Any person who operates a motor vehicle within this
state is deemed to have given consent, subject to the
provisions of RCW 46.61.506, to a test or tests of his or
her breath or blood for the purpose of determining the
alcohol concentration, THC concentration, or presence of
any drug in his or her breath or blood if arrested for any
offense where, at the time of the arrest, the arresting
officer has reasonable grounds to believe the person had
been driving or was in actual physical control of a motor
vehicle while under the influence of intoxicating liquor or
any drug or was in violation of RCW 46.61.503. Neither
consent nor this section precludes a police officer from
obtaining a search warrant for a person's breath or blood.
If the driver submits to the test and the test is
administered, the driver's license, permit, or
privilege to drive will be suspended, revoked,
or denied for at least ninety days if:
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(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
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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;
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The blood analysis of the person's THC
concentration shall be based upon
nanograms per milliliter of whole blood.
(1) A person is guilty of driving while under the
influence of intoxicating liquor, marijuana, or any
drug if the person drives a vehicle within this state:
 The person has, within two hours after driving, a
THC concentration of 5.00 or higher as shown by
analysis of the person's blood made under RCW
46.61.506; or
 While the person is under the influence of or
affected by intoxicating liquor, marijuana, or any
drug; or
 While the person is under the combined
influence of or affected by intoxicating liquor,
marijuana, and any drug.
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(b) The blood analysis of the person's THC
concentration shall be based upon
nanograms per milliliter of whole blood.
(if the person's …the person's THC
concentration is less than 5.00, it is evidence
that may be considered with other competent
evidence in determining whether the person
was under the influence of intoxicating liquor
or any drug)
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(1) Notwithstanding any other provision of this title, a person is
guilty of driving or being in physical control of a motor vehicle
after consuming alcohol or marijuana if the person operates or is
in physical control of a motor vehicle within this state and the
person:
(a) Is under the age of twenty-one; and
(b) Has, within two hours after operating or being in physical
control of the motor vehicle, either:
(i) An alcohol concentration of at least 0.02 but less than the
concentration 0.08, as shown by analysis of the person's breath
or blood
(ii) A THC concentration above 0.00 but less than the
concentration 5.00, as shown by analysis of the person's blood
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Driving 10MPH or more under a posted speed limit.
Staying stopped at a stop sign or blinking red light after
coming to a complete stop for longer than 3 to 5 minutes
Coming to a complete stop and staying stopped for longer
than 3 to 5 minutes at a blinking yellow light
Changing lanes without signaling the change.
Swerving/drifting in traffic.
Leaving a parking area at night without the use of
headlights
Not being able to remember the number of steps an
arresting officer requests the driver to take in a straight
line.
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I-502 adds a per se threshold for THC and
distinguishes THC from THC-COOH. It does
not change the legal requirements that must
be met before a police officer can take a
driver to a medical professional for a blood
test.
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I-502 establishes a per se marijuana DUI cut-off
of 5 nanograms of active THC metabolite per
milliliter of whole blood (5 ng/mL), analogous to
the per se 0.08 BAC cut-off for alcohol.
I-502 clarifies that THC-COOH, the inactive
marijuana metabolite also known as carboxyTHC that is sometimes used to convict marijuana
users of DUI under current law, is not to be
considered in determining THC concentration for
purposes of the per se limit.
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11-COOH-THC is formed in the body by
oxidation of the active metabolite 11Hydroxy-THC by liver enzymes. It is then
metabolized further by conjugation with
glucuronide, forming a water-soluble
congener which can be more easily excreted
by the body.
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11-COOH-THC is not psychoactive itself, but
has a long half-life in the body of up to
several days (or even weeks in very heavy
users), making it the main metabolite tested
for when blood or urine testing for cannabis
use.
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More sensitive tests are able to distinguish
between 11-OH-THC and 11-COOH-THC,
which can help determine how recently
cannabis was consumed.
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If only 11-COOH-THC is present then the
cannabis was used some time ago and any
impairment in cognitive ability or motor
function will have dissipated.
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Whereas, if both 11-OH-THC and 11-COOHTHC are present then the cannabis was
consumed more recently and motor
impairment may still be present.
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Some jurisdictions where cannabis use is
decriminalized or permitted under some
circumstances use such tests when
determining whether drivers were legally
intoxicated and therefore unfit to drive, with
the comparative levels of THC, 11-OH-THC
and 11-COOH-THC being used to derive a
"blood cannabis level" analogous to the blood
alcohol level used in prosecuting impaired
drivers.
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On the other hand in jurisdictions where
cannabis is completely illegal, any detectable
levels of 11-COOH-THC may be deemed to
constitute driving while intoxicated, even
though this approach has been criticized as
tantamount to prohibition of "driving whilst
being a regular user of cannabis" regardless
of the presence or absence of any actual
impairment that might impact on driving
performance.
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While 11-COOH-THC does not have any
psychoactive effects in its own right, it may
still have a role in the analgesic and antiinflammatory effects of cannabis, and has
also been shown to moderate the effects of
THC itself which may help explain the
difference in subjective effects seen between
occasional and regular users of cannabis.
 Half
Life 11-OH-THC is one
to two hours
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Life 11-COOH-THC is
5 to 6 days
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Tetrahydrocannabinolic acid (THCA, 2COOH-THC), is a biosynthetic precursor of
tetrahydrocannabinol (THC), the active
component of Cannabis. THCA is found in
variable quantities in fresh, undried cannabis,
but is progressively decarboxylated to THC
with drying, and especially under intense
heating such as when cannabis is smoked.
Will convert under temperature to D-9THC or
D-8THC
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Tetrahydrocannabivarin (THCV, THV) is a
homologue of tetrahydrocannabinol (THC)
having a propyl (3-carbon) side chain. This
terpeno-phenolic compound is found
naturally in Cannabis, sometimes in
significant amounts. The psychoactive effects
of THCV in Cannabis preparations are not
well characterized.
THCV has been shown to be a CB1 receptor
antagonist, i.e. it blocks the effects of
Hydroxy-THC.
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It is also commonly used as a biomarker in
drug testing along with THCV, to distinguish
between prescribed synthetic Delta-9tetrahydrocannabinol, such as Marinol, and
cannabis plant material which may also be
used by patients.
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Cannabis is often consumed for its psychoactive and
physiological effects, which can include heightened mood
or euphoria, relaxation, and increase in appetite.
Unwanted side-effects can sometimes include a decrease
in short-term memory, dry mouth, impaired motor skills,
reddening of the eyes, and feelings of paranoia or anxiety
Common symptoms of alcohol intoxication include slurred
speech, euphoria, impaired balance, loss of muscle
coordination, flushed face, dehydration, vomiting,
reddened eyes, reduced inhibitions, and erratic behavior.
Sufficiently high levels of blood-borne alcohol will cause
coma and death from the depressive effects of alcohol
upon the central nervous system.
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Medical MJ law allows a person to have up to
24 ounces in a 60 day period while
Recreational MJ users can only have up to one
ounce.
Use of medical MJ does not constitute an
affirmative defense for driving under the
influence
Medical MJ law does not distinguish between
11-OH-THC and 11-COOH-THC.
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Recreational MJ law regulates sales and
enforces a minimum age (21) for possession,
growing, processing and purchasing while
Medical MJ does not regulate sales or have
any age restrictions for possession, growing
processing and purchasing.
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Without age restrictions on access to medical
marijuana law provisions in recreational
marijuana law to reduce use and access to
marijuana by teens is unenforceable.
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Anyone over the age of 13 can refuse medical
attention or seek medical advise without a
parents permission. Since marijuana is not
prescribed the qualified health care provider
is only giving advice or a recommendation
regarding the therapeutic use of marijuana
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Medical MJ law allows for qualifying patients
to grow marijuana, produce edible marijuana
infused products and infuse marijuana into
products for transdermal application without
regulations while recreational marijuana law
provides regulations on growing and
production of edible marijuana infused
products that include some production safety
guidelines.
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Medical MJ law does not create any
mechanisms for licensing dispensaries while
recreational marijuana law has regulations
and licensing requirements including fees
and permits with restrictions on advertising
and signage.
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While many medical MJ establishments have
business licenses and permits, they are not
allowed under WA state or Federal law,
subsequently they are subject to random
closures by state or federal authorities.
Recreational MJ stores are regulated as
businesses that are required to collect sales
taxes.
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Without FDA approval or changes in the
Uniform Substance Control Act changing MJ
from a schedule I to schedule II drug,
marijuana cannot be considered a medication
that is protected under laws regulating the
sale and use of prescription or legend drugs.
Therefore MJ would be considered a food
additive or diet supplement without FDA
approval or recognition of any potential
therapeutic benefits.
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Neither medical MJ law or recreational MJ law
restrict the use of marijuana in the presence
of minor children or access to marijuana to
minor children in the home.
Recreational MJ only use restriction is that it
cannot be used in public and that includes in
a vehicle at which point even if the vehicle is
parked this is probable cause for suspicion of
DUI.
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The legislature is currently reviewing the
need to have to separate laws regarding MJ
and whether or not I-502 will allow for
qualifying patients to have monetary
compensations when purchasing MJ and a
SLCB marijuana store i.e. not having to pay
sales tax.
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While medical MJ law requires MJ to be used
for a terminal or debilitating condition I-502
does not require that marijuana be used
solely for recreational purposes.
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As of today the legislature has chosen not to
take any actions to rectify the differences
between the two MJ laws.
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Before entry of an order deferring prosecution, a
petitioner shall be advised of his or her rights as
an accused and execute, as a condition of
receiving treatment, a statement that contains:
(a) An acknowledgment of his or her rights;
(b) an acknowledgment and waiver of the right to
testify, the right to a speedy trial, the right to call
witnesses to testify, the right to present evidence
in his or her defense, and the right to a jury trial;
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(b) an acknowledgment and waiver of the right to
testify, the right to a speedy trial, the right to call
witnesses to testify, the right to present evidence
in his or her defense, and the right to a jury trial;
(c) a stipulation to the admissibility and
sufficiency of the facts contained in the written
police report; and
(d) an acknowledgment that the statement will be
entered and used to support a finding of guilty if
the court finds cause to revoke the order
granting deferred prosecution.
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The petitioner shall also be advised that he or
she may, if he or she proceeds to trial and is
found guilty, be allowed to seek suspension
of some or all of the fines and incarceration
that may be ordered upon the condition that
he or she seek treatment and, further, that he
or she may seek treatment from public and
private agencies at any time without regard to
whether or not he or she is found guilty of
the offense charged.
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He or she shall also be advised that the court
will not accept a petition for deferred
prosecution from a person who: (i) Sincerely
believes that he or she is innocent of the
charges; (ii) sincerely believes that he or she
does not, in fact, suffer from alcoholism,
drug addiction, or mental problems; or (iii) in
the case of a petitioner charged under
chapter 9A.42 RCW, sincerely believes that he
or she does not need child welfare services.
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Before entering an order deferring
prosecution, the court shall make specific
findings that:
(a) The petitioner has stipulated to the
admissibility and sufficiency of the facts as
contained in the written police report;
(b) the petitioner has acknowledged the
admissibility of the stipulated facts in any
criminal hearing on the underlying offense or
offenses held subsequent to revocation of the
order granting deferred prosecution;
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(c) the petitioner has acknowledged and
waived the right to testify, the right to a
speedy trial, the right to call witnesses to
testify, the right to present evidence in his or
her defense, and the right to a jury trial; and
(d) the petitioner's statements were made
knowingly and voluntarily. Such findings shall
be included in the order granting deferred
prosecution.
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Many health care providers believe that the
use of a psychoactive substance by a
qualifying patient reduces the abuse liability
of a drug even though the drug is habit
forming and discontinuation may result in
physiological withdrawal symptoms.
Subsequently diagnosing a person who has
documentation as a qualifying medical MJ
user as Cannabis dependent is more difficult
without specific information showing psychosocial impairment?
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Can person who has documentation as a
qualifying medical MJ user be diagnosed as
Cannabis dependent and qualify for deferred
prosecution while continuing to use MJ of
medicinal reasons?
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Can a person with a history of addiction
treatment for substance use related disorders
that are not Cannabis based be diagnosed as
Cannabis dependent if using medical MJ as
recommended?
Should this assessment outcome determine
child custody issues?
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A person suspected of driving under the
influence with a 0.05 BAC and 3.00 THC
ng/ml of whole blood could be convicted of a
DUI. But how and would they be eligible for
Deferred prosecution without other
significant psycho-social problems?
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Even though THC-COOH cannot be used as
evidence for DUI, it can be used as evidence
to determine the presence of cannabis
dependency? If so should the courts
recognize this for a petition for deferred
prosecution if the THC level was under 5.00
ng/ml?