MARIJUANA AND THE LAW COURTNEY POPP Washington State Traffic Safety Resource Prosecutor

WHAT IS “MARIJUANA?”

CANNABIS The inactive metabolite. Delta-9 Tetrahydrocannabinol As Relevant to Law Enforcement and Criminal Justice Primary psychoactive ingredient in cannabis. Carboxy-THC 1 2

Definitions Matter Initiative originally made it difficult for prosecutors to prove a substance was “marijuana” under the law for possession charges.  Redefined marijuana to mean a plant with a delta-9 THC concentration greater than 0.3 percent on a dry weight basis.  Didn’t take into account the total THC content (delta-9 THC plus THCA). Revised fix (EHB 2056) passed Spring 2013.

“STATE” OF MARIJUANA LAWS – LEGAL, MEDICAL, ILLICIT

Medical Washington Colorado Legal/Recreational Marijuana Laws September 2013 Marijuana Laws September 2013 Alaska Arizona California Colorado* Connecticut Delaware DC Hawaii Illinois Maine Maryland Massachusetts Michigan Montana Nevada New Hampshire New Jersey New Mexico Oregon Rhode Island Vermont Washington State* *Both medical and recreational marijuana permitted

LEGAL RECREATIONAL MARIJUANA Passed by Initiative, Dec 2012Passed by Constitutional Amendment, Nov 2012

Washington State’s Recreational MJ Law  1 Ounce Marijuana  72 Ounces MJ-Infused Liquid  16 Ounces MJ-infused solid product  21 and Over  Driving “per se” limit of 5 nanograms

Is this the same as this?

Marijuana Strains – Do They Mean Anything? Sativa strains are used more recreational and can stimulate a user. Indica strains are used more by medical and evening users. Is the science changing?

LEGAL CHALLENGES

FEDERAL POSITION

FEDERAL LANDS  Tribal Land  Military Installations  National Parks

Commercial Motor Vehicles Cross Border & Trafficking

COURT CHALLENGES

Driving Under the Influence States Differ on DUI Legal Elements – Per Se – “Affected by” Samples collected in various forms – Urine – Blood

Driving Under the Influence Per Se Level – Washington State: 5 nanograms THC – Excludes carboxy-THC/metabolite Based on very limited European research – No blood conversion rate performed NOT tied to impairment

Driving Under the Influence Search Warrants – Missouri v. McNeely – State Implied Consent Laws What is “exigency”? – Drugs in the body versus alcohol in the body

JUROR PERCEPTIONS Jurors have bought into common misperception that MJ-impaired drivers are SAFER – WA the majority of MJ-involved crash cases involve speed – Combining with Alcohol or other drugs creates additive effect

JUROR PERCEPTIONS Confusing MJ of the 70s with the MJ of today Most common “illegal” substance used outside of alcohol Don’t understand that use is distinct from driving under the influence NORML and legalization proponents have saturated media and public comment

LEGISLATIVE STUMBLES Definition of “marijuana” versus lab testing parameters Possession versus Use/Driving Commercial Drivers Per Se Limits

LEGISLATIVE STUMBLES Public and Environmental Health Considerations for Implementation, Safety and Licensing Zoning Issues

TOXICOLOGY CONSIDERATIONS

Toxicology and Testing Constraints Accreditation informs reporting level from WA State lab – ASCLD/LAB International Program (ISO Standard 17025) awarded July 2010 Marijuana Tox Lab Reporting – Marijuana reported out at threshold of 2 nanograms or above – Blood results include both active THC and carboxy-THC

Toxicology and Testing Constraints TOX LIMITATIONS – Signs/symptoms and presence in the blood versus impairment – Less published research available than alcohol – More blood draws and search warrants affecting lab turnaround time and courtroom time

LICENSING CONCERNS

Marijuana and License Suspensions Administrative Suspension Criminal Suspension Courts – Post Conviction

Marijuana and License Suspensions: By the Numbers Dec 2012 (legalization) to June 2013 – DOL Stats 260 Per Se Marijuana Cases 31 of those also over.08 for alcohol

FORMS AND CHALLENGES DUI Packets Needed Revision ($$)DOL Hearings Examiners Needed TrainingImplied Consent Language Use of Warnings without the word “marijuana” (a/k/a “old forms) has resulted in dismissal of some suspensions

Marijuana and License Suspensions Use of Warnings WITH the word “marijuana” as amended resulted in legal challenges – Pending rulings in several jurisdictions – One has recently ruled in favor of the State because defendant could not demonstrate prejudice No marijuana, so no prejudice

McNeely & Licensing Consequences DOL has lost authority to administratively suspend licenses for most misdemeanor DUIs or for blood refusals New ICWs in WA State remove reference to blood

EDUCATION AND PREPARATION Law Enforcement * Prosecutors * Toxicologists * Jurors

TRAINING THE EXPERTS Drug Recognition Experts, Patrol Officers, and Policy Makers

Drug Recognition Experts Standardized and Systematic 12-Step evaluation process for detecting drug- impairment May supplement witness testimony – bridging officer observations and toxicology expert testimony NOT necessary to arrest/process a marijuana-impaired DUI Must have open communication with toxicology witness and prosecutor

EQUIPPING LAW ENFORCMENT Reinforce existing training for drug-impaired drivers Instill confidence in their ability to spot and arrest Educate on the signs and symptoms unique to marijuana impairment Teach supplemental field sobriety tests as appropriate

From Roadside to Courtroom No one person will exhibit the same signs and symptoms of impairment as the next person. We accept this with alcohol, so we need to remember the same is true (even more so) with alcohol. Drug Matrix is just a list of typical signs and symptoms: a Starting Point

SFST and MARIJUANA Standardized Field Sobriety Tests apply to all drugs Drug Recognition Experts are excellent but NOT REQUIRED Get an expert for trial if needed! Non-Standardized Tests: Romberg Balance Lack of Convergence

MAKING FRIENDS AND INFLUENCING PEOPLE Ensure legislators grasp the importance of properly worded laws and administrative regulations Keep lab personnel in the loop (esp. regarding testing protocols & parameters) Keep up to date on emerging research on marijuana Spread the word!

CANNABIS – ADDITIVE EFFECT = Marijuana is the Ranch dressing of drugs….it goes with everything!

Average Marijuana Potency = under 4% 2008 = over 10% 2008 = over 10% 2013 = over 30% 2013 = over 30%

Methods of Ingestion: Smoking Bongs, joints, …apples?

What Are We Looking For?

Physical Indicators of Use Dilated Pupils Green Tongue Reddened Conjunctiva

Estimated Duration of Effects Marijuana Peak Duration Dissipates Residual Effects minutes 2-3 hours 3-6 hours Up to 24 hours The method of ingestion (e.g. smoked versus consumed in an edible) will affect the peak and duration of effects (and generally result in a “lower” high. Time from last “smoking event”

Mental v. Physical Impairment MARIJUANA tends to stay in the brain (mental impairment is primary) ALCOHOL AND OTHER DRUGS (generally) include more obvious physical impairment

ARE YOU NEXT?

CONTACT Courtney Popp Traffic Safety Resource Prosecutor WA State Patrol Impaired Driving Section x24134