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Thu November 7, 2013
Test Case Shows Pot DUI Law Still Murky Despite Per Se Limit
When is someone too stoned to drive? Washington's new marijuana law includes a new way to answer that question: a blood limit for the drug.
It's supposed to set a standard just as clear as the .08 blood alcohol content police use for drunk drivers. But one year after voters legalized pot, the line is looking almost as blurry as ever.
The Case of One Medical Marijuana Patient
Ronnie Payton lives and works at a low-income housing complex in downtown Seattle. He’s a Vietnam veteran, a jazz keyboardist and a medical marijuana user. Payton suffers from glaucoma, a condition that causes pressure to build up in his eyes and triggers staggering headaches.
“[Feels] like your head’s going to bust. It’s just pressure,” Payton said. “And you just smoke, and it just relieves the pressure.”
As a result, he medicates most mornings when he wakes up, around 5:30. That’s what he did on Christmas Day last year, the day Payton would become a test case for the new marijuana law, then just weeks old.
After working all day, Payton got a call from his daughter in Renton: Are you coming to Christmas dinner, or what?
“I was thinking ah, maybe, maybe not, ah, well, yeah. I was tired, but I went anyway,” he said.
Payton borrowed his boss’s car and headed out into the drizzly Christmas night. He was in the right-hand lane headed south on State Route 167 when it happened.
“And I heard a bump, a little bump,” he said.
Payton had rear-ended an SUV that had just merged onto the road. It was just a fender-bender; no one got hurt. But a state trooper showed up and put Payton through field sobriety tests. Those did not go well, and soon, Payton was in the patrol car in cuffs.
“So we go to the hospital, took my blood. The police officer took the three vials and split,” said Payton.
The Per Se Limit for Marijuana
There’s no breath test for marijuana like there is for alcohol. Instead, police can have a blood sample analyzed. And now, for the first time, there’s a legal limit for the intoxicating ingredient in marijuana: 5 nanograms of active THC per milliliter of blood.
Payton’s would come back well over the limit. So it didn’t matter that he says he wasn’t high. It didn’t matter if it had been 14 hours since he smoked or that he was a medical marijuana patient. The numbers said he was guilty.
Payton hired a lawyer named Jesse Corkern, and one of Corkern’s top priorities was keeping that blood evidence out of the trial.
What the Trooper Saw
In a pretrial hearing, Corkern questioned State Trooper Cliff Roberts about what he saw that Christmas night.
“His eyes were bloodshot. His eyelids were particularly droopy,” said Roberts.
Roberts is a certified drug recognition expert, and he rattled off the signs he was trained to recognize: the eyes, the raised taste buds, the body tremors.
“We had already confirmed that alcohol was not in his system. At that point, we were going to do implied consent for [a] blood [test], and transporting him to the hospital,” Roberts said.
And here’s why Roberts could do that: By driving a car, you give the police de facto permission to take, with probable cause, your blood. That’s implied consent.
Not So Fast: ‘A Sea Change’
But this April brought a new wrinkle. The U.S. Supreme Court decided a case called Missouri vs. McNeely, which found police had to clear a higher bar to collect evidence like blood. They’d need a warrant from a judge.
Erin Norgaard of the King County Prosecutor's Office says that threw blood DUI cases into legal limbo.
“And it kind of left law enforcement officers figuring out how to gather this evidence, prosecutors figuring out how are we going to be able to prosecute these cases,” Norgaard said. “It caused a sea change.”
So King Country threw out the blood evidence in all cases like Payton’s. Marijuana DUI arrests plummeted, from 19 before the Supreme Court case to just four since.
And the state was left to prosecute Payton like they would have back before last December—relying on his behavior and the trooper’s testimony instead of the straightforward chemistry of a blood draw.
“If you have a breath ticket or a blood test, that’s always going to be easier than walking through all of the evidence and establishing the person’s ability to drive was impaired,” Norgaard said.
Payton went to trial in September. Defense lawyer Corkern did his best to explain away the trooper’s observations. Bloodshot eyes? The guy has glaucoma. Tremors? It was cold outside.
In closing arguments, he told jurors the state had not met its burden of proof.
“If you have innocent explanations, then we’re not even in the ballpark of beyond reasonable doubt. Where’s the smoking gun? Where’s the DNA evidence? Where are the fingerprints? Where’s the equivalent in that case?” said Corkern.
You could say the equivalent was Payton’s blood test, which the jury never heard about. The jury deliberated a few hours, and came back with a verdict: not guilty.
“Oh, my God,” said Payton of the verdict. “It’s like a physical burden just lifted off of me. Changes your whole attitude.”
‘We Are in the Early Stages of Chaos’
You could look at the results of the case and conclude Payton got away with one; he was lucky his blood draw never came out in court. Or there’s Corkern’s interpretation: this goes to show the blood limit is bogus for regular users like patients.
“I hope that the public becomes more aware of how unfair that is to somebody like Ronnie, and that [it] changes,” said Corkern.
Corkern says defense lawyers will keep challenging the law. And like much else in a world where marijuana is legal, it will be a while before everything shakes out.
“I think there’s so much still gray. We are in the early stages of chaos at this point,” Corkern said.
The intended goal of the per se limit may have been to make marijuana DUI cases straightforward, Corkern said, but it hasn’t.
“That’s never going to be the case,” he said. “I mean, there’s no such thing as black and white to lawyers.”
If It's Legal ...