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Category: Presumption of Innocence

Green DUI’s, Medical Marijuana, and Initiative 502 – Part 1

DUI for Marijuana, Driving High, and THC Impairment

There is an urban myth of sorts that has been floating around amongst students in high schools, community colleges and universities since at least the late 1990’s. It is the myth that a person cannot get a DUI for driving high.

The truth is that “green DUI’s” are very real. One can be charged with DUI for driving under the influence of marijuana just as one can be charged with DUI for driving drunk.

Under Washington State’s Driving Under the Influence Statute codified as RCW 46.61.502, there are two theories, or prongs, under which an individual may be charged for DUI.

One is known as the “per se prong”, where an individual has an alcohol concentration of .08 or higher within two hours after driving–such an individual is automatically deemed to be impaired. If the breath test is admissible, then the accused may find it difficult to defend themselves against DUI by claiming lack of impairment.

The other prong under which one may be charged for DUI is the “affected by prong.” Under this prong, an individual may be charged with driving under the influence if the person is “under the influence of or affected by” any drug. This is the theory under which prosecution for a green DUI will proceed. However, unlike a prosecution that commences under the “per se prong” of the DUI statute, a prosecution that proceeds under the “affected by prong” requires the prosecution to show that the driver accused of a green DUI was in fact under the influence or affected by THC. This can raise a variety of issues for several reasons.

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Green DUI’s, Medical Marijuana, and Initiative 502 – Part 2

Marijuana users in Seattle, Oak Harbor, and Island County will have a higher risk of being charged with DUI if I-502 is approved by voters.


Under current DUI law, and pursuant to the “affected by” prong of the DUI statute, the prosecution bears the burden of proving impairment caused by marijuana beyond a reasonable doubt. This can be a heavy burden and may be difficult to prove. The prosecution, in order to successfully meet this burden, will likely have to produce testimony from an expert witness. Even then, such an expert witness’s testimony may be undermined by another expert witness.

As mentioned previously, the “affected by prong” of the DUI statute, unlike the “per se prong” concerning alcohol consumption, does not render one strictly culpable for DUI when it comes to cannabis consumption. Initiative 502 will change that.

Initiative 502 will change the current DUI statute, RCW 46.61.502 by creating another per se prong specifically for marijuana. Under this new DUI statute, a person will be guilty of driving under the influence if he or she has a THC concentration of 5.00ng or higher within two hours after driving, as shown by a blood test.

This may seem reasonable to some–representing a quid pro quo of sorts. However, this change in the DUI statute may lack a scientific basis and therefore may be unfair to medical marijuana patients.

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High Powered Seattle Criminal Lawyer Pleads Guilty to DUI

Good grief. How I hope that headline is never about me.

Instead, it was referring to my old friend and colleague, Anne Bremner. She and I go waaaay back. When I was still a law student at Stanford, she worked in the campus coffee house, where I would go to study my contracts, torts, and other assorted boring non criminal law topics. Anne was an undergrad at Stanford. I vaguely remembered her when she approached me years later in the King County Courthouse in Seattle, me a young criminal defense attorney working for the public defenders office, Anne a hard charging prosecutor. The Stanford connection can be strong, but with one of us righteously defending the innocent, falsely accused of crimes which they did not commit, and the other locking up all the bad guys and throwing away the key, there was a tad bit of tension in the air when we first reconnected…

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