OLYMPIA — The state Supreme Court has upheld Washington’s law that makes it illegal to drive under the influence of cannabis, under a statute established by voters as part of the 2012 initiative legalizing marijuana.
The justices on May 12 unanimously rejected a Snohomish County man’s claim that the law is unconstitutionally vague and unreasonable because the standard used to determine whether a person is impaired is not supported by scientific evidence.
Douglas Fraser III, 29, of Everett, further argued that he had a legal right to consume cannabis and drive, as long as he did not consume so much that it affected his driving.
The court disagreed.
“Although one can legally drink and drive, one can be found guilty of DUI when one’s driving is impaired or one’s BAC (blood alcohol content) is above the legal limit,” Judge G. Helen Whitener . wrote to decision. “And if someone has a BAC over the legal limit, they are guilty of DUI even if their driving is not impaired. The same goes for using cannabis and driving.”
ten years ago, voters approved the initiative 502, which legalized the cultivation, processing and sale of recreational cannabis to adults 21 and older. The measure established regulations and taxes for the new industry.
And it amended the state’s driving under the influence so that a person could be guilty of DUI if, within two hours of driving, the concentration level of tetrahydrocannabinol (THC) in the blood is 5.0 nanograms per milliliter or more.
At approximately 6:30 pm on July 11, 2017, a trooper flagged Fraser at 81 mph northbound on I-5 near the Everett Mall. The trooper reported seeing Fraser driving himself in the HOV lane, erratically changing lanes and cutting off another driver, causing that person to brake.
When the officer pulled him over, Fraser was sweating lightly, had “very dark gray circles around his eyes” and had “whole body tremors,” according to court documents. The officer did not smell cannabis or other drugs.
Fraser apologized for driving aggressively. She said she was in a hurry to pick up her son. When he saw the trooper looking at his employee badge for a marijuana dispensary, he quickly took it off and hung it around his rearview mirror. He later stated that it is “just common knowledge” not to carry anything related to marijuana.
“And so once I realized that the soldier saw it, I realized my fate at that moment,” Fraser said.
He reportedly told the officer that it had been about half a day since he last smoked marijuana. He later stated that it was almost a day. He smoked marijuana at night, after he got home, to deal with chronic pain and help him sleep, he told the court. He had broken his legs years earlier, he said, when a DUI driver crashed into his vehicle.
Field sobriety tests indicated Fraser was under the influence of marijuana, the trooper reported. Fraser then consented to a blood draw, rather than have the trooper obtain a search warrant. He agreed, he later testified, because he felt he was not under the influence.
“I wasn’t breaking the specific law that I was being arrested for, so I felt like I didn’t have much to worry about,” he told the court, noting that he also didn’t bother to consult with a lawyer. “I felt a blood test would come back perfect and I would never be cited, but here I am.”
Fraser said that by giving his consent, he thought he would get home faster, to see his family.
He tested positive for 9.4 nanograms per milliliter, plus or minus a couple of nanograms.
Fraser’s case went to trial in Everett District Court in October 2019. The court found him guilty of driving under the influence of marijuana, based on his blood being tested for a THC content above the legal limit. Judge Anthony Howard sentenced him the same day to 15 days of electronic home monitoring.
Fraser appealed to Snohomish County Superior Court. There he argued with the help of an expert witness and a batch of studies that there is no scientific evidence to show that all drivers are impaired at a specific concentration of THC in their blood. Thus, the law’s 5 nanograms per milliliter standard is too broad and its application an improper use of the state’s police powers, according to his legal argument.
Superior Court Judge Anna Alexander denied the appeal. The Supreme Court examined the case directly.
The judges acknowledged that while there may not be a universal THC blood level similar to the 0.08 BAC for alcohol impairment, “studies show that THC levels above 5, 00 ng/mL are indicative of recent consumption in most users,” Whitener wrote.
This rule serves as a bright line rule that protects against arbitrary enforcement and warns anyone using cannabis that if they drive, they may be over the legal limit and subject to arrest.
“Detecting and preventing impaired driving and cultivating road safety is the exact evil this law seeks to prevent and the exact public safety the law seeks to promote,” he wrote.
Without a THC standard, it would be a much more difficult task to prove that a person was driving under the influence of cannabis, said Seth Fine, Snohomish County deputy district attorney who handled the case.
If Fraser had prevailed, an estimated 200 cannabis DUI cases in Snohomish County alone would have been affected, officials said.
This case dealt with the “mythology” surrounding driving performance and cannabis use, Fine said.
“Many users think their driving is not impaired, and some even think their driving has improved. The scientific evidence is to the contrary,” he said. “The take home message is don’t drive for several hours after consuming any form of cannabis.”
Reporter Zachariah Bryan contributed to this story.