Legal Update: I-502 Marijuana Legalization

1. Legal Update: I-502 Marijuana Legalization The Washington State Criminal Justice Training Commission wishes to thank the Washington State Patrol and the Washington State Attorney General’s Office for allowing the dissemination of this professional and timely training aid to our stakeholders. In-service eLearning

2. Disclaimer This information was prepared as a training aid.  Check with your County Prosecutor and/or City Attorney for further guidance and clarification related to this issue.  We urge you to ensure you are complying with your agency’s policies and procedures during the arrest of an individual, impounding of a vehicle, and or seizing and logging evidence.

3. I-502Guidance for Law Officers

4. Resources • Washington State Attorney General’s Office • Washington State Patrol Impaired Driving Section • Washington State Patrol Field Operations Bureau General Administration, Olympia • Initiative 502 • Revised Code of Washington • Washington Administrative Code

5. Course Objectives • Create a simple and useful understanding of I-502 • Give guidance to law officers to work within the context of I-502

6. Performance Objectives Upon completion of this course of instruction each student will: • Have a general understanding of Initiative 502. • Have legal and practical knowledge of how to work within the scope of Initiative 502. • Recognize the possible impact on impaired driving in Washington State. • Be familiar with policy, procedures, and training in response to marijuana impaired drivers.

7. Legal Aspects of Possession and Use

8. Definitions Marijuana or Marihuana: “…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.” Useable marijuana: “…dried marijuana flowers. The term “useable marijuana” does not include marijuana-infused products.”

9. Definitions Marijuana-infused products: “…products that contain marijuana or marijuana extracts and are intended for human use. The term “marijuana-infused products” does not include useable marijuana.” Deliver or Delivery: “…the actual or constructive transfer from one person to another of a substance, whether or not there is an agency relationship.” Distribute: “…to deliver other than by administering or dispensing a controlled substance.”

10. What Is Legal Under Washington Law If 21 years of age or older - Such a person may possess a total of: • 1 oz (28.3 grams) of useable marijuana • 16 oz of marijuana-infused product (solid form) • 72 oz of marijuana-infused product (liquid form) • Possession, use, and sale of marijuana related drug paraphernalia

11. What Is Legal Under Washington Law 1 oz Packaged Useable Marijuana (Blue Clamp for Size Comparison) 1 oz Dry Weight (Useable Marijuana)

12. What Is Legal Under Washington Law (Paraphernalia) B o n g s Chillums Clips Pipes Papers

13. What Is Not Legal Under Washington Law • Possession of marijuana between 28.3 grams and 40 grams (misdemeanor crime) • Possession of 40 grams or more (class C felony) • Possession of any amount of marijuana by a person under 21 (some exemptions for medical marijuana)

14. What Is Not Legal Under Washington Law • Manufacturing and/or delivery of marijuana After the WA State Liquor Control Board promulgates regulations; licensed producers, processors, and retailers may manufacture and deliver marijuana or marijuana-infused products consistent with WA law. • Opening a package containing marijuana, useable marijuana, or marijuana-infused product, or consuming such in view of the general public. A person who violates this section is guilty of a class 3 civil infraction under chapter 7.80 RCW ($103 fine).

15. DUI

16. Tips for Officers • If marijuana is observed or smelled in a vehicle the driver may be impaired • Possessing marijuana may be legal but driving impaired is not • Officers may need to: • Learn more about the effects of marijuana consumption • Become familiar with physical and behavioral indicators of marijuana consumption and impairment • Become proficient in the use of Standard Field Sobriety Tests

17. General Indicators of Consumption and Impairment • Odor of marijuana • Relaxed inhibitions • Marked reddening of the conjunctiva (whites of the eyes) • Body tremors • Disorientation • Eyelid tremors • Impaired perception of time and distance • Marijuana debris in mouth • Raised taste buds • Brief attention span

18. Duration of Effects These are estimates based on smoking marijuana. If eaten, the process takes longer to reach “peak” and the “duration” period is longer. In general, smoking marijuana delivers more THC into the body than other methods.

19. A THC Chronology Max THC levels within minutes of last inhalation Initial sharp drop in THC level-then slower decline depending on tolerance, concentration, weight, gender, etc. Objective signs within 15-30 minutes of first use (heart, eyes, etc) Behavior signs can occur at any time after use: lethargic, contemplative, loud talking, laughing, paranoia, anxiety, etc. Initial THC use As THC level drops, user may develop increased appetite THC drop may lead to sleepy, depressed behavior

20. Other Observations/Indicators • In general, THC calms users. They are generally cooperative, so asking for details about use and consumption is fruitful. • Users may be jovial, talk loud, and/or exhibit inappropriate humor. • In general, marijuana users feel they have the ability to perform any physical or mental task. They simply lose interest in doing so or forget instructions when under the influence. • Later in the duration phase, as THC levels fall, users may be disinterested, often with a flat affect. They may also exhibit anxiety and/or paranoia.

21. THC and Alcohol • Combined consumption of low levels of THC and alcohol appear to impair users out of proportion to the amount consumed. • THC tends to slow actions and may make users cautious. THC users may be driving under the speed limit. • Consuming alcohol along with marijuana tends to overcome the calming/slowing aspect of THC and users may speed to the point of recklessness.

22. THC Infused Product • THC users may not be smoking marijuana. High THC concentration liquids can be infused into almost any food product. In this case, you may not observe anything that looks or smells like marijuana. • If you see apparent THC impairment, consider asking if they have been using marijuana and how it was ingested. • Investigate and articulate objective facts of THC impairment before arrest, implied consent warnings, and blood draw. • If arrest is made then follow case law, agency policy, and agency training in securing evidence of marijuana consumption

23. SFST Performance EYES • HGN/VGN:not presentPupil Size: dilated (large) Walk and Turn • Divided attention impairment (ask questions and/or forget instructions) • muscle tremors • same observable indicators as alcohol One Leg Stand • same observable indicators as alcohol • muscle tremors & divided attention impairment

24. Other Physical Tests Lack of Convergence(inability of the eyes to come together) • Taught during ARIDE training Romberg Balance (Estimate passage of 30 seconds, standing with feet together, hands at side and head tilted back) • Muscle and eyelid tremors • Swaying • Impaired time perception

25. Further Considerations • If recent marijuana use is confirmed, in conjunction with indicia of impairment, avoid further delay and read the Implied Consent Warnings for blood. If suspect consents then follow agency protocol for a blood test. If suspect refuses, consider applying for a search warrant for blood pursuant to constitutional standards and agency policy. • If probable cause for DUI is present, follow current search and seizure case law, agency policy, and agency training to seize any marijuana evidence the defendant may have been using along with receipts or evidence of consumption.

26. DUI Elements RCW 46.61.502/504 Two prongs of DUI – Impairment/per se limit OR Cite for DUI/Physical Control RCW 46.61.502 or .504 Gross Misdemeanor 364 days jail/$5,000 fine Impaired by drug (THC) Cite for DUI/Physical Control RCW 46.61.502 or .504 Gross Misdemeanor 364 days jail/$5,000 fine 5.00 ng/ml or more THC

27. DUI Elements RCW 46.61.502/504 Further considerations: • The “impairment” prong of DUI is always considered first with THC consumption • There is no ability to measure THC blood concentration in the field • Base your arrest on the objective facts of evidence of consumption and impairment

28. Minor Operating Vehicle after Consumption Under 21 yoa, indicators of consumption but no impairment, less than 5.00 ng/ml: Cite: Minor Operating Motor Vehicle after Marijuana Consumption RCW 46.61.503 Misdemeanor 90 days jail/$1000 fine Consume but not impaired, <5.00 ng/ml, <21 yoa

29. Minor Operating Vehicle after ConsumptionRCW 46.61.503 Further considerations: • Articulate objective facts of consuming marijuana • Arrest and follow procedures for Implied Consent Warnings and blood draw • If consent for blood is refused consider applying for a search warrant for blood pursuant to constitutional standards and agency policy

30. Reporting Blood Results DOL • Fax complete DUI Report + Tox Report: • THC level 5.00 ng/ml or more • BAC level 0.08 or more alcohol • Minor using intoxicants (any THC and/or BAC >.02) • Refusal of breath or blood test Your County Prosecutor or Local City Attorney (as applicable) Forward the complete DUI Report + test results:

31. I-502 Questions and Answers The following eleven slides represent legal and procedural guidance to officers as they encounter situations involving the possession and use of marijuana within the context of I-502 and other associated laws

32. Initiative 502 – Questions and Answers • How much marijuana can a person aged 21 or older legally possess? A person aged 21 years old or older may possess the following amounts of marijuana: One ounce (28.3 grams) or less of marijuana. Sixteen ounces of marijuana-infused product (in solid form). Seventy-two ounces of marijuana-infused product (in liquid form). • Is the possession, use, and sale of drug paraphernalia still illegal? The possession, use, and sale of drug paraphernalia for marijuana consumption is no longer illegal. However, the possession, use, and sale of drug paraphernalia used for drugs other than marijuana remains illegal. • Is possession of marijuana over the legal amounts still a crime? Possession of between 28.3 grams and 40 grams of marijuana will continue to be a misdemeanor crime. Possession of more than 40 grams of marijuana continues to be a Class C felony crime. • May persons under the age of 21 possess marijuana? No. Possession of any amount of marijuana by a person under 21 years of age will remain a crime.

33. Initiative 502 – Questions and Answers • May persons under the age of 21 possess drug paraphernalia for marijuana use? Yes. The amendments to RCW 69.50.412 and RCW 69.50.4121 do not limit legal possession of drug paraphernalia for marijuana use to persons aged 21 and older. However, it is illegal for the person under 21 to possess any amount of marijuana in or on the drug paraphernalia. • Since it is legal for persons aged 21 years and older to possess the legal amounts of marijuana, is manufacture and distribution of marijuana still a crime? Yes. Manufacturing and/or delivery of marijuana will continue to be a felony crime. However, the Washington State Liquor Control Board has until December 1, 2013, to develop specific regulations that will regulate and license producers, processors, and retailers. Even after the Washington State Liquor Control Board promulgates these regulations, it is illegal for a person to manufacture or distribute marijuana without a valid license issued by the Washington State Liquor Control Board. Until the Washington State Liquor Control Board promulgates these regulations and licenses producers, processors, and retailers, officers should continue business as usual with investigations involving the manufacture or delivery of marijuana.

34. Initiative 502 – Questions and Answers • Is the legal amount different for qualifying medical marijuana patients or designated medical marijuana providers who have valid documentation authorizing them to possess medical marijuana? Yes. Under RCW 69.51A.040, a qualifying patient or designated provider may possess no more than 15 cannabis plants and: No more than twenty-four ounces of useable cannabis; No more cannabis product than what could reasonably be produced with no more than twenty-four ounces of useable cannabis; or A combination of useable cannabis and cannabis product that does not exceed a combined total representing possession and processing of no more than twenty-four ounces of useable cannabis. If a person is both a qualifying patient and a designated provided for another qualifying patient, the person may possess no more than twice the amounts described above, whether the plants useable cannabis, and cannabis product are possessed individually or in combination between the qualifying patient and his or designated provider. • Can a qualifying patient aged 21 or older have the amount of marijuana authorized under chapter 69.51A RCWand the amount authorized under I-502? No. A qualifying patient is not eligible to possess amounts of cannabis in excess of the amounts specified in RCW 69.51A.040.  The act of possessing marijuana is a single act.  I-502 legalizes the possession of certain amounts of marijuana for persons aged 21 and over.  RCW 69.51A.040 provides qualifying patients an affirmative defense to possessing medical marijuana.

35. Initiative 502 – Questions and Answers • If an officer observes a person smoking marijuana in a public park, what enforcement action, if any, may the officer take? I-502, Section 21 provides: It is unlawful to open a package containing marijuana, useable marijuana, or a marijuana-infused product, or consume marijuana, useable marijuana, or a marijuana-infused product, in view of the general public. A person who violates this section is guilty of a class 3 civil infraction under chapter 7.80 RCW. Accordingly, a commissioned law enforcement officer may issue a class 3 civil infraction to a person when the officer observes the person opening a package containing marijuana or consuming marijuana in view of the general public. • What is the RCW the officer should cite when issuing an infraction for consuming marijuana in general view of the public? Based on information received from the Administrative Office of the Courts, officers should cite to 13C3S21 (Opening Package of Marijuana or Consuming Marijuana in View of General Public) when issuing an infraction to a person for opening a package of marijuana or consuming marijuana in view of the general public. The fine for the infraction is $103. q

36. Initiative 502 – Questions and Answers • If an officer observes a person smoking marijuana in a parked car on a public roadway, what enforcement action, if any, may the officer take? If the officer observes the person in the car consuming marijuana from a lawful vantage point, and the vehicle is parked on a public roadway, the officer may issue an infraction for consumption of marijuana in view of the general public. See State v. Vriezema, 62 Wn. App. 437, 814 P.2d 248 (1991) (A person sitting in a vehicle parked in a public place does not have a reasonable expectation of privacy in open container of alcohol clearly visible to the public). • If an officer observes a driver smoking marijuana while operating a motor vehicle, what enforcement action, if any, may the officer take? The officer may stop the vehicle based on reasonable suspicion that the driver may be impaired from marijuana use. Additionally, the officer needs to be able to articulate with specificity what facts gave rise to the officer’s reasonable suspicion that the driver is smoking marijuana. The officer may also stop the vehicle based on probable cause that the driver is committing the infraction of consuming marijuana in public. If the officer determines the driver is not impaired, the officer may cite the driver for violating Section 21 of I-502 (public consumption of marijuana). • If an officer observes a passenger smoking marijuana while the driver operates the vehicle, what enforcement action, if any, may the officer take? The officer may stop the vehicle based on probable cause that the officer observed the passenger consuming marijuana in view of the general public. See RCW 7.80.050(2). The officer needs to be able to articulate with specificity what facts gave rise to probable cause that the passenger was smoking marijuana and the officer observed the passenger smoking marijuana. Additionally, the officer may not detain the vehicle any longer than necessary to identify the passenger and issue the citation. The officer cannot detain the vehicle to conduct warrant checks on the passenger smoking marijuana absent specific and articulable facts of another criminal offense or officer safety concerns.

37. Initiative 502 – Questions and Answers • If an officer stops a vehicle and smells the odor of marijuana, does the officer have probable cause to seek a search warrant to search the vehicle? No. But, the officer may consider the odor of marijuana in conjunction with other specific articulable facts that the vehicle may contain marijuana exceeding the legal amounts. • If an officer stops a vehicle and smells the odor of marijuana, does the officer have probable cause to arrest the driver for Driving Under the Influence? Not in the absence of other signs of impairment. If the officer observes other articulable facts, such as the driver displaying indicia of marijuana impairment, or the driver exhibiting erratic driving, the odor of marijuana may be a factor establishing probable cause to arrest the driver on suspicion of driving under the influence. • What if the officer stops a vehicle, smells the odor of marijuana, observes signs of impairment associated with marijuana-use, and the driver refuses FSTs and a blood draw? An officer may arrest based on probable cause of a criminal offense. The officer must rely on his or her training, experience, and articulable facts presented by the situation to determine whether probable cause exists to arrest the driver. The officer may apply for a search warrant for blood pursuant to constitutional standards and agency policy to retrieve a sample of the suspect’s blood to determine alcohol and/or drug concentration.

38. Initiative 502 – Questions and Answers • What if an officer stops a person under the age of 21 and smells the odor of marijuana? Is the odor of marijuana sufficient probable cause to arrest the person for Minor Operating Vehicle After Marijuana Consumption under RCW 46.61.503? No. The officer must have specific and articulable facts that the driver consumed marijuana. Officers should rely on their training and experience in identifying clues of marijuana use and conduct thorough investigations. Indications of marijuana consumption may include a visible bong, baggie or marijuana, marijuana debris on the lips or tongue, or physical signs such as blood shot eyes or muscle tremors. • What if an officer stops a vehicle, the driver and passengers are all under the age of 21, and the officer smells marijuana, may the officer arrest the occupants for marijuana possession? No, absent other facts that connect the driver or passengers to individual marijuana use or possession. Where officers do not have anything to independently connect an individual to illegal activity, no probable cause exists and an arrest or search of that person is invalid under article I, section 7 of the Washington state constitution. See State v. Grande, 164 Wn.2d 135, 187 P.3d 248 (2008). However, the officer may use other investigatory tools such as questioning the vehicle’s occupants regarding marijuana use.

39. Initiative 502 – Questions and Answers • What impact will I-502’sTHC blood concentration per se limits of 5.00 ng/mL and zero tolerance limits for persons under 21 years old have on Driving Under the Influence investigations? None. Officers should continue business as usual with impaired driving investigations. The per se THC limits and zero tolerance for minors is an additional means for prosecutors to charge impaired drivers under the statutes. These limits do not alter the probable cause standard to arrest an individual for an impaired driving offense. The officer must rely on his or her training, experience, and articulable facts presented by the situation to determine whether probable cause exists to arrest the driver. If the officer has reasonable grounds to suspect the driver is impaired by marijuana (or is under 21 and consumed marijuana), the officer should read the implied consent warning for blood and request a blood draw. If the driver refuses the blood test, the officer may apply for a search warrant for the driver’s blood pursuant to agency policy. • Will the Implied Consent Warnings change to inform drivers that if they submit to the blood test and have a THC blood concentration of 5.00 ng/ml or over, their license may be suspended? Yes. The Impaired Driving Section will distribute new implied consent warnings for blood as part of the DUI Arrest Report packet.

40. Initiative 502 – Questions and Answers • If an officer discovers the legal amount of marijuana during a vehicle impound inventory, what should the officer do with the legal amount of marijuana? If the amount of marijuana is within the legal limits (1 ounce useable marijuana; 16 ounces of marijuana-infused product (solid form); or 72 ounces of marijuana infused product (liquid form)) or a combination thereof and there are no persons under the age of twenty-one in the vehicle, the officer should leave the marijuana in the vehicle.  If there are persons under twenty-one in the vehicle, then the officer should take the marijuana for safekeeping. • If an officer discovers the legal amount of marijuana during a search incident to arrest of a person, what should the officer do with the legal amount of marijuana? If the amount of marijuana is within the legal limits (1 ounce useable marijuana; 16 ounces of marijuana-infused product (solid form); or 72 ounces of marijuana infused product (liquid form)) or a combination thereof and there are no persons under the age of twenty-one in the vehicle, the officer should ask for the subject’s consent to leave the marijuana in the vehicle.  If the subject consents, then the officer should document the subject’s consent and leave the marijuana in the vehicle.  If the subject does not consent to leaving the marijuana in the vehicle, the officer should take the marijuana for safekeeping.  If there are persons under twenty-one in the vehicle, then the officer should take the marijuana for safekeeping. • What if an officer cannot say for sure whether the marijuana is at or under the legal amount? If an officer has doubts to the amount of marijuana, the officer should seize the marijuana pursuant to constitutional standards and agency policy.

41. Initiative 502 – Questions and Answers • Does Hailey’s Law apply when a person is arrested for suspected marijuana impairment? Hailey’s Law applies when a driver is arrested for a violation of RCW 46.61.502 (DUI) or RCW 46.61.504 (Physical Control While Under the Influence). Hailey’s Law does not apply when a driver is arrested for a violation of RCW 46.61.503 (Minor Operating Vehicle After Alcohol or Marijuana Consumption). Accordingly, when an officer arrests a person under the age of 21 for a violation of RCW 46.61.503, the officer must explore reasonable alternatives before authorizing an impound of a vehicle. • Since I-502 includes an affirmative defense for consumption of marijuana within two hours after driving, are there any precautions officers should take when transporting a suspect to a BAC room or hospital? Yes. Officers should not allow the suspect to consume liquids within the suspect’s possession. If the suspect requests a drink of water, the officer should provide the water and not allow the suspect to drink from his or her own container. The officer should not allow the suspect to eat anything in the suspect’s control until after the blood draw.

42. Initiative 502 – Questions and Answers • If an officer responds to a collision scene involving a driver under the age of 21, and the officer smells marijuana, may the officer read ICWs and arrest the driver for a violation of RCW 46.61.503 (Minor Operating Vehicle After Alcohol or Marijuana Consumption)? No. Violations of RCW 46.61.503 are not excepted from RCW 10.31.100’s requirement that the misdemeanor violation occurred in the officer’s presence. However, if an officer observes the driver exhibiting indicia of marijuana impairment, the officer may investigate the driver for violations of RCW 46.61.502 (DUI). RCW 46.61.502 is excepted from RCW 10.31.100’s requirements that the misdemeanor violation occurs in the officer’s presence. • What is the total amount of marijuana that Initiative 502 allows a person aged 21 or older to possess consistent with state law? Such a person may possess a total of one ounce of useable marijuana, sixteen ounces of marijuana-infused product (solid form), and seventy-two ounces of marijuana-infused product (liquid form).