Should Washington state lawyers be allowed to smoke pot

We all know that marijuana is legal in Washington State.  You can smoke marijuana, you can grow it, heck you will soon be able to by it at local stores.  However one issue that was never fully determined when the passage of I502 and subsequent legalization of marijuana happened was whether Washington State lawyers can use it.

You see State rules disallow local Washington State attorneys from committing a "criminal act," and despite the passage of I502, marijuana is still illegal federally.  Last week however, the King County Bar Association asked the Washington State Supreme Court to let Washington State attorneys use marijuana without punishment.  The KCBA proposal would add language clarifying that attorneys do not violate state ethics rules if their federal transgressions are specifically permitted under state law.

So what does this mean?  If you're a practicing Seattle Attorney for example technically you can't smoke Marijuana like the rest of Washington state residents.  If you do then you would be committing a "criminal act" and you risk losing your license to practice law.  As a practicing DUI lawyer in Seattle it should be interesting to see how the WSBA goes and whether they change this ethical provision.

Now on a related but unrelated note, I have been seeing more and more marijuana or green DUI's come through my office.  Just because marijuana is legal does not mean you can go out and drive if you're still under the influence of it.  Unlike alcohol, marijuana stays in your system longer.  And even though you may not feel the effects of it, if you're a regular user than you might constantly be at the legal limit of 5 nanograms (which is not very much).  

If you're a regular follower of this blog then you know I was not in favor of the passage of this bill.  Not because I have any problem with the actual legalization, but what we were giving up in exchange for that.  In my opinion as a DUI lawyer in Seattle this legal limit is probably equivalent to a very small amount of alcohol.  But those that were hell bent on this passage never considered this, and now people that need this drug for medicinal purposes are constantly driving "over the legal limit."  

_
About the author: Matthew Leyba is one of Seattle's best DUI trial attorneys in Western, WA.  His practice focuses on representing those charged with DUI and other related offenses.   

Is a green tongue enough for a DUI arrest?

Now that Washington State and Colorado have legalized Marijuana presumptively there is going to be more DUI arrests in those States for Green DUI's (those under the influence of Marijuana).  One of the observations that law enforcement often relies on in addition to the usual signs of impairment when it comes to Marijuana is a green tongue.  So the question becomes is a green tongue enough to get arrested for DUI?  

First it must be determined whether Marijuana actually causes a tongue to turn green.  

As I have noted before in my blog, I don't take part in Washington State's newest over 21 adult activity. So I asked several people I know who do, as well as some experts in the area of Marijuana impairment. They all had the same answer to whether Marijuana causes a green tongue.  Absolutely not?

So how did law enforcement come up with this green tongue phenomena.  I guess it was first started by the National Highway Safety Administration.  You know the same agency that created those wonderful roadside gymnastics tests that law enforcement and Prosecutors swear up and down detect impairment. They warn of the following characteristics for a Marijuana DUI under DEC profile, 

"characteristic indicators may include odor of marijuana in car or own subject's breath, marijuana debris in mouth, green coating on tongue, bloodshot eyes, body and eyelid tremors, relaxed inhibitions, incomplete thought process, and poor performance on the field sobriety tests."    NHTSA, "Drugs and Human Performance Fact Sheets

Yet NHTSA offers no documented medical evidence to support their position.  If you have ever tried a Marijuana DUI case then you know both the Tox and Cop say the taste buds get raised on the tongue, and the burnt Marijuana as well as the debris causes it to turn the tongue green.  I guess if you have a green slurpee, or a green jolly rancher, or a green lollipop you will get arrested for a Green DUI under the line of thinking.    

So clearly NHTSA has it correct (Im being facetious), and thus this so called green tongue phenomena has started.  So that brings me to the second question I posted.  

If you have a green tongue does that give an Officer probable cause to arrest for a Green DUI here in Washington State?  

Remember probable is the reasonable suspicion that would warrant a reasonable officer a crime has been committed.  Since probable cause and Marijuana really hasn't been discussed by the Washington State Supreme Court there really only two cases that discuss this idea and one is an unpublished opinion.

In State v. Wheeler, the Court of Appeals dismissed the idea that a green tongue and admission to past marijuana use by a driver gave rise to a reasonable suspicion of criminal activity.  In fact here is what they said.  

"Although we assume the officer's assertion to be true for purposes of this opinion, we are nevertheless skeptical as to its accuracy. We find no case stating that recent marijuana usage leads to a green tongue. The only case we could find that remotely supports such a proposition is State v. Baity, 140 Wn.2d 1, 991 P.2d 1151 (2000), wherein the opinion's fact section mentions that the defendant, who had admitted to recent marijuana usage, also had a green tongue. Beyond this observation, however, the court never analyzes whether the green tongue and the recent marijuana usage are linked. And the officer who made the observation does not assert a connection between the two."  

So basically the only ruling is unpublished but if you read between the lines the Court of Appeals has issues with the accuracy of what the Trooper said.  I think they are saying its BS, but that is just my opinion.  

So why am I bring this up.  Well has you know I'm a Seattle DUI lawyer.  I represent people not only accused of DUI involving alcohol, but also Marijuana.  And with the recently legalization of Marijuana this issue will soon get decided.  In fact I read online there was a recent case in the City of Kent where an individual was arrested for having a green tongue, and there was no other indicators of impairment.  You can check it out here.  It is titled, "Wash State Man Arrested for Having "green tongue."

Long story short.  This guy got arrested for a Green DUI in Kent.  Officer said he had green tongue, and in his infinite years of experience, and despite his lack of any sort of medical corroboration this is a sign of Marijuana use and he was arrested.  Should be interesting to see what happens in this case.  

If you have been arrested for a Green DUI and the only evidence against you is a '"green tongue," you need to fight these charges.  This is absolute BS, and is an infringement on our 4th amendment rights.  

_

Matthew A. Leyba is a DUI Attorney in Seattle, WA.  He has been named a 2013 Rising Star by Super Lawyers Magazine in the area of Criminal Defense, an honor only given to less than 2.5% of all Attorneys in Washington State.  His practice focuses on representing those accused of DUI and other serious traffic offenses.  

How high is too high? Seattle KIRO tests pot smoking drivers for impairment

Now that Marijuana has been legalized in Seattle it was only a matter of time before someone decided to do a "wet lab" in Seattle with Marijuana and publicize the results and findings.  If you don't know what a "wet lab" is.  Its a training that police officers do to help with alcohol impairment detection.  Basically they go to a location, and some volunteers get drunk.  Then the Officers administer the field sobriety tests to the impaired individuals just to get an idea of what it is like investigating people out in the field.

The reason I'm talking about this wet lab stuff is recently a local news station here in Seattle decided to run a little experiment on Green DUIs.  They got some volunteers together and had them drive in a closed obstacle course completely sober.  No alcohol, no marijuana.  Then they had these people smoke a little marijuana, drive some more, then smoke some, then drive again.  I don't know a lot about marijuana since I don't smoke it.  But the name of the strand was pretty cool.  It was called blueberry train wreck.  Each time after the volunteers drove, their blood was taken, and their results from the driving were noted.  Also the news station had a drug recognition expert there to determine in the field the level of impairment.

Some of the results and observations from the "study" were pretty interesting.  Remember the legal limit for Marijuana in your system in Washington State is 5 nanograms.  During the experiment there were three drivers.  They were tested before driving the course the first time.  They were then given marijuana and asked to drive the course a second time.  Their results were compared, along with the different levels of marijuana after a blood test.  In some cases they were given even more marijuana and asked to drive the course 3 to 4 times.

The first driver was a medical marijuana patient who smoked heavily before the experiment.  Before she even started the experiment she was at 16 nanograms from her daily smoking.  So FYI if you smoke a lot it takes a long time for you to get Marijuana out of your system and you're most likely operating at the legal driving limit on a daily basis.  I'm talking to you heavy pot users.  Surprisingly though the instructor said her driving was fine.  It was until she got to 1.6 grams that she started to show signs of trouble.

The second driver was a casual pot smoker who smoked on the weekends.  The initial test showed no marijuana in his system.  He was then given three tenths gram of marijuana to smoke.  His driving was actually pretty good, not revealing any significant decrease in motor skills.  He was then given nine tenths a gram and continued to drive.  At the end of the experiment he was 26 nanograms.  Towards the end of his driving he showed more and more problems driving.  At one point almost hitting a photographer.

The third driver was an occasional pot smoker.  He also showed no marijuana in his system during the initial test.  He was given the first batch of marijuana and again did not show any decrease in motor skills, although it was noted he was driving a little slow.  However like the second driver the more he was given, the more problems in the driving occurred.  At the end of the experiment his level was 21 nanograms.  

So what do I take from these results.  Well to be honest this just affirms the same opinions I had of this so called legal limit when the 502 was initially passed.  It is too low.

First if you're a daily pot smoker, you operate at the so called legal limit every day.  Meaning every time you drive chances are you're over the legal limit and subject to an arrest for a Green DUI.

Secondly based on the driving of the second and third drivers when you're at the so called legal limit there is not much of a decrease in motor skills.  It was not until those individuals were at 4 times the legal limit they showed obvious signs of impairment and difficulty driving.

Lastly, and probably the most interesting is the daily pot smoker, even at higher levels she did not show any signs of impairment from the driving.  In fact the instructor said her driving was fine, and she was borderline whether she would even get pulled over.

If you want to check out the article and see the footage then you can watch, Its titled, How High is Too High

_

Matthew Leyba is a DUI Attorney in Seattle, WA.  His practice focuses on representing those accused of DUI and other related offenses.  

Washington Toxicologist: No spike yet in Marijuana DUI cases

The Washington State Toxicologist spoke at a legislative hearing on Olympia this week.  One of the topics she spoke about was the recently new Marijuana DUI laws here in Washington State and whether there has been an increase in blood samples submitted from law enforcement to analyze for Marijuana.  

Surprisingly she testified that there hasn't been an increase in work.  She estimated every year the Washington State Patrol receives about 6000 blood samples from drivers.  Of those 6000, she estimated about 1100 typically are for Marijuana related alcohol offenses.  DUI cases, vehicular assaults, felony DUIs, vehicular homicide cases, etc.  

She said that since the law took effect on 12/6/12 the lab has finished analyzing all the blood samples submitted from December.  Per a previous blog post, stats show this was about 300 cases and now that they have been analyzed, DUI charges are coming down the pipeline.  

She was quite to point out however that this a relatively new law, that the lab has already started analyzing blood samples from February.  With the legal limit at 5 nanograms of active THC, I also suspect this number will increase.  

It is this Seattle DUI Lawyers opinion this is an extremely low level, and everything I have read suggests it is not on par with the alcohol level of .08.  But the push to legalize marijuana by some was so important that they would have agreed anything, including an extremely low legal level.  Yet despite this law I don't believe Washington State will see a dramatic increase in Marijuana DUIs or Green DUIs as they have been coined.  

Unless an individual smokes an extreme amount, most studies suggest the legal limit currently in law here does not show significant coordination issues, or decrease in fine motor skills.  So really the only way for an individual to get arrested for a Green DUI is when there is an accident.  Or an officer just happens to stop someone and smells the odor of Marijuana.  I don't think we will be seeing too many cases where Officers pull someone over for weaving or crossing lanes of traffic.  Which happen to be the most common reasons an individual gets stopped for a DUI. 

_

Matthew A. Leyba is a DUI lawyer in Seattle, WA.  His practice focuses on representing those accused of DUI and other alcohol related offenses.  If you have been charged with a DUI contact our office immediately to set up a free 60 minute consultation.     

Beware of the "Green DUI" in Washington State

Since the legalization of Marijuana in Washington State approximately 130 DUI arrests have been made for those allegedly impaired by Marijuana and that number is increasing every day.  This new DUI charge is now being referred to as a "Green DUI."  If you were arrested for a Washington State Green DUI in December 2012, then chances are you DUI charge is in the pipeline and charges will be filed against you any day.  Why does a Green DUI take so long to be filed, when an alcohol DUI can be filed the next day after the arrest?  Well the simple answer is it takes time to have a blood sample analyzed.  

What is the process for a Seattle Green DUI arrest.  As noted above after an arrest for a Green DUI then the suspect is given the opportunity to provide a blood sample.  Once provided the sample is sent to the Washington State Toxicology Laboratory and analyzed by a Toxicologist.  Those results can take anywhere from 1-3 months to get back.  Depending on the volume of cases at the Toxicology lab, and the order the sample is received.  Once those results come back they are sent to the appropriate Prosecutors Office.  

So let's say you were arrested on I-5 by a Washington State Trooper in King County.  That means your King County DUI would be filed by the King County Prosecutors Office.  So after the blood test results come back they are sent to the Prosecutors office.  A prosecutor will then review the blood test results, review the police report, and any other evidence submitted by the arresting agency.  If the Prosecutors feels they can prove a Green DUI charge beyond a reasonable doubt then they will file charging documents with their records department.  The records department then provides that to the Court that would have jurisdiction.  The Court then sends notice to the defendant of their arraignment and the criminal process starts. 

Defending a Green DUI is drastically different than an alcohol related DUI.  Prior to creating a legal limit, Green DUI's were fairly easy to defend.  There were so many different views, and medical opinions on what constituted impairment.  For every expert the Prosecutor provided, the Marijuana DUI Attorney would counter with an expert of their own.  However with this new per se law a Marijuana DUI is going to be more difficult due to just the legal limit.  But like an alcohol related DUI, there are still ways to prepare a defense for this type of charge.  Thus it is extremely important to hire an experienced Seattle DUI lawyer to properly prepare a defense.  

_

Matthew A. Leyba is a DUI Attorney in Seattle, WA.  His practice consists of representing those accused of DUI and other alcohol related offenses.  If you have been arrested for a Green DUI or an alcohol related DUI contact our office immediately to set up a free consultation.    

Pot users at risk for DUI even if below the legal limit in Washington State

I just read an article about an issue dealing with the recent marijuana legalization here in Washington state and a DUI.  To be honest I hadn't thought about this particular issue the article raises, but I find it very interesting.  Essentially the article discusses how many law abiding citizens of Washington state, who have never tried marijuana are going to go out and purchase it legally now?  And of those people how many are at risk for DUI?

You see the general public out there only see one thing when it comes to marijuana and DUI.  They see the legal limit as 5 nanograms.  What do they have to compare that to?  Well the legal limit for an alcohol DUI is .08 blood alcohol level.  So the general public sits back and thinks.  Well if I can have 2 beers an hour, or a cocktail an hour.  Whatever they think they can have to get below the legal limit, they may apply that same line of thinking when it comes to marijuana.

The problem with that line of thinking is marijuana does not have the same effect on a persons body as alcohol does.  Figuring out a persons alcohol level is pretty simple math.  You take into consideration their body weight, alcohol consumed, over what duration, food, etc.  But with marijuana none of that really factors into what a THC level would be.  Marijuana may have different levels of potency, it may affect a person differently based on their regular usage. There are many factors that are not known.

The other issue this article discusses is what happens when the THC level is below the legal limit.  As a Seattle DUI Lawyer, I see this every day when it comes to alcohol.  I can't tell you how many clients I have represented on a DUI that have had alcohol levels below the legal limit of .08.  In fact in my experience most people are shocked to think you can be arrested for DUI below the legal limit, let alone charged with a DUI for it.  But it is true, and it happens all the time.

Well the same thing is going to happen with marijuana DUI's in Washington state.  In fact the article mentions a case in King County Superior Court where an individual was charged and convicted of vehicular homicide with a THC level of 1.6 nanograms, which is significantly less than the current legal limit of 5 nanograms.  Now that person is in prison serving a 16 year sentence.  

So the moral of the story is many people are going to want to try marijuana now that it is legal.  Maybe try a joint, or smoke a bowl in a social setting.  Much like alcohol is consumed.  But what you may not know is you can be charged with a marijuana DUI that is below the legal limit.  And there is no way to really know what you marijuana level is, unlike alcohol where you can make an educated guess.  

CLICK HERE to see the link to the article.   

_

Matthew A. Leyba is a Seattle DUI Lawyer in Washington state.  His practice focuses on representing those accused of DUI and other serious traffic offenses.  

Marijuana legalization impact on DUI law in Washington State still unclear

I recently read an article from the Seattle Weekly that discusses the impact Marijuana legalization would have on DUI laws in Washington State if I-502 is passed.  As a Seattle DUI Attorney this is something I have been following and quite interested in.  The gist of the article discussed if Marijuana was legalization what would the legal limit be, and how it would be enforced as a DUI.

I-502 will be on the ballot this November in Washington State.  In addition to legalizing Marijuana it would also set a limit of 5 nanograms of THC per milliliter of blood for drivers over 21, and zero tolerance for minors is proposed. This 5 ng/ml figure is supposed to be similar to the .08 standard currently in place for alcohol related DUI offenses.

Currently in Washington State if someone is arrested for DUI and Marijuana is believed to be the substance that has impaired the driver there is no specific amount of Marijuana in the system, like with alcohol and a .08.  However there are certain levels where the Prosecution can call in an expert and have them testify about how a person might be affected at that level.

Other states with "per se" Marijuana DUI laws are discussed in the article as well.  Its interesting that Nevada Marijuana DUI arrests rose, will Ohio Marijuana DUI arrests decreased when a per se limit was imposed.  From Seattle DUI Lawyer perspective these are interesting statistics and I guess that just goes to show how uncertain all of this information is when it comes to Marijuana.

If you're interested in reading the article.  You can view it here.