Marijuana : Driving Under the Influence and Deferred Prosecution

1. Marijuana: Driving Under the Influence and Deferred Prosecution Paul Weatherly MA, CDP

2. Agenda • State Liquor Control Board rules and regulations regarding the distribution and use of marijuana • Changes to rules of the road RCW 46.61 regarding DUI offenses involving marijuana use prior to or while in control of a motor vehicle. • Problems with enforcement of medical marijuana law and lack of reconciliation with general legalization of “recreational” marijuana • Problems doing assessments and diagnostics for deferred prosecution and findings of dependency. • Resolution of various ethical dilemmas regarding diagnosis for cannabis dependency.

3. Overview State Liquor Control Board Regulations Re: Marijuana • I-502 authorizes the state liquor control board to regulate and tax marijuana for persons twenty-one years of age and older, and add a new threshold for driving under the influence of marijuana.

4. Overview State Liquor Control Board Regulations Re: Marijuana • "Marijuana" or "marihuana" means 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.

5. Overview State Liquor Control Board Regulations Re: Marijuana • The term does not include the mature stalks of the plant, fiber produced from the stalks, oil or cake made from the seeds of the plant, any other compound, manufacture, salt, derivative, mixture, or preparation of the mature stalks (except the resin extracted therefrom), fiber, oil, or cake, or the sterilized seed of the plant which is incapable of germination.

6. Overview State Liquor Control Board Regulations Re: Marijuana • "Marijuana-infused products" means products that contain marijuana or marijuana extracts and are intended for human use. The term "marijuana-infused products" does not include useable marijuana.

7. Overview State Liquor Control Board Regulations Re: Marijuana • THC concentration" means percent of delta-9 tetrahydrocannabinol content per dry weight of any part of the plant Cannabis, or per volume or weight of marijuana product.

8. Overview State Liquor Control Board Regulations Re: Marijuana • "Useable marijuana" means dried marijuana flowers. The term "useable marijuana" does not include marijuana-infused products.

9. Overview State Liquor Control Board Regulations Re: Marijuana • "THC concentration" means nanograms of delta-9 tetrahydrocannabinol per milliliter of a person's whole blood. THC concentration does not include measurement of the metabolite THC-COOH, also known as carboxy-THC.

10. Overview State Liquor Control Board Regulations Re: Marijuana • Determining the nature, form, and capacity of all containers to be used by licensees to contain marijuana, useable marijuana, and marijuana-infused products, and their labeling requirements, to include but not be limited to:

11. Overview State Liquor Control Board Regulations Re: Marijuana • (a) The business or trade name and Washington state unified business identifier number of the licensees that grew, processed, and sold the marijuana, useable marijuana, or marijuana-infused product;

12. Overview State Liquor Control Board Regulations Re: Marijuana • (b) Lot numbers of the marijuana, useable marijuana, or marijuana-infused product;

13. Overview State Liquor Control Board Regulations Re: Marijuana • (c) THC concentration of the marijuana, useable marijuana, or marijuana-infused product; • Edible, inhalable, drinkable or transdermal

14. Overview State Liquor Control Board Regulations Re: Marijuana • (d) Medically and scientifically accurate information about the health and safety risks posed by marijuana use; and

15. Overview State Liquor Control Board Regulations Re: Marijuana • (e) Language required by RCW 69.04.480; Drugs — Misbranding for failure to state content of habit forming drug.

16. Overview State Liquor Control Board Regulations Re: Marijuana • A drug or device shall be deemed to be misbranded if it is for use by human beings and contains any quantity of …..cannabis….. marijuana,…….; or any chemical derivative of such substance, which derivative has been designated as habit forming by regulations promulgated under section 502(d) of the federal act; unless its label bears the name and quantity or proportion of such substance or derivative and in juxtaposition therewith the statement "Warning -- May be habit forming."

17. Overview State Liquor Control Board Regulations Re: Marijuana • (1) Retail outlets shall sell no products or services other than useable marijuana, marijuana-infused products, or paraphernalia intended for the storage or use of useable marijuana or marijuana-infused products.

18. Overview State Liquor Control Board Regulations Re: Marijuana • (2) Licensed marijuana retailers shall not employ persons under twenty-one years of age or allow persons under twenty-one years of age to enter or remain on the premises of a retail outlet.

19. Overview State Liquor Control Board Regulations Re: Marijuana • (3) Licensed marijuana retailers shall not display any signage in a window, on a door, or on the outside of the premises of a retail outlet that is visible to the general public from a public right-of-way, other than a single sign no larger than one thousand six hundred square inches identifying the retail outlet by the licensee's business or trade name.

20. Overview State Liquor Control Board Regulations Re: Marijuana • (4) Licensed marijuana retailers shall not display useable marijuana or marijuana-infused products in a manner that is visible to the general public from a public right-of-way.

21. Overview State Liquor Control Board Regulations Re: Marijuana • (5) No licensed marijuana retailer or employee of a retail outlet shall open or consume, or allow to be opened or consumed, any useable marijuana or marijuana-infused product on the outlet premises.

22. Overview State Liquor Control Board Regulations Re: Marijuana • (6) The state liquor control board shall fine a licensee one thousand dollars for each violation of any subsection of this section. Fines collected under this section must be deposited into the dedicated marijuana fund created under section 26 of this act.

23. The following acts, when performed by a validly licensed marijuana retailer or employee of a validly licensed retail outlet in compliance with rules adopted by the state liquor control board to implement and enforce this act, shall not constitute criminal or civil offenses under Washington state law:

24. Overview State Liquor Control Board Regulations Re: Marijuana • Delivery, distribution, and sale, on the premises of the retail outlet, of any combination of the following amounts of useable marijuana or marijuana-infused product to any person twenty-one years of age or older:

25. Overview State Liquor Control Board Regulations Re: Marijuana • (a) One ounce of useable marijuana; • By contrast medical marijuana law allows a qualifying patient to have 24 ounces during any 60 day period

26. Overview State Liquor Control Board Regulations Re: Marijuana • (b) Sixteen ounces of marijuana-infused product in solid form; • By contrast medical marijuana law does not have provisions regarding amounts for edible or externally applied marijuana infused products.

27. Overview State Liquor Control Board Regulations Re: Marijuana • (c) Seventy-two ounces of marijuana-infused product in liquid form. • By contrast medical marijuana law does not have provisions regarding amounts of liquid forms of marijuana infused products.

28. Overview State Liquor Control Board Regulations Re: Marijuana • (1) There shall be a fund, known as the dedicated marijuana fund, which shall consist of all marijuana excise taxes, license fees, penalties, forfeitures, and all other moneys, income, or revenue received by the state liquor control board from marijuana-related activities. The state treasurer shall be custodian of the fund.

29. Overview State Liquor Control Board Regulations Re: Marijuana • RCW 46.20.308 and 2008 c 282 s 2 are each amended to read as follows: • (1) Any person who operates a motor vehicle within this state is deemed to have given consent, subject to the provisions of RCW 46.61.506, to a test or tests of his or her breath or blood for the purpose of determining the alcohol concentration, THC concentration, or presence of any drug in his or her breath or blood if arrested for any offense where, at the time of the arrest, the arresting officer has reasonable grounds to believe the person had been driving or was in actual physical control of a motor vehicle while under the influence of intoxicating liquor or any drug or was in violation of RCW 46.61.503. Neither consent nor this section precludes a police officer from obtaining a search warrant for a person's breath or blood.

30. Overview State Liquor Control Board Regulations Re: Marijuana If the driver submits to the test and the test is administered, the driver's license, permit, or privilege to drive will be suspended, revoked, or denied for at least ninety days if:

31. Overview State Liquor Control Board Regulations Re: Marijuana • (i) The driver is age twenty-one or over and the test indicates either that the alcohol concentration of the driver's breath or blood is 0.08 or more or that the THC concentration of the driver's blood is 5.00 or more

32. Overview State Liquor Control Board Regulations Re: Marijuana • The driver is under age twenty-one and the test indicates either that the alcohol concentration of the driver's breath or blood is 0.02 or more or that the THC concentration of the driver's blood is above 0.00;

33. Overview State Liquor Control Board Regulations Re: Marijuana • The blood analysis of the person's THC concentration shall be based upon nanograms per milliliter of whole blood.

34. Overview of RCW 46.61.502 Driving Under the Influence (1) A person is guilty of driving while under the influence of intoxicating liquor, marijuana, or any drug if the person drives a vehicle within this state: • The person has, within two hours after driving, a THC concentration of 5.00 or higher as shown by analysis of the person's blood made under RCW 46.61.506; or • While the person is under the influence of or affected by intoxicating liquor, marijuana, or any drug; or • While the person is under the combined influence of or affected by intoxicating liquor, marijuana, and any drug.

35. Overview of RCW 46.61.506 Driving Under the Influence • (b) The blood analysis of the person's THC concentration shall be based upon nanograms per milliliter of whole blood.(if the person's …the person's THC concentration is less than 5.00, it is evidence that may be considered with other competent evidence in determining whether the person was under the influence of intoxicating liquor or any drug)

36. Overview of RCW 46.61.503 Driving Under the Influence • (1) Notwithstanding any other provision of this title, a person is guilty of driving or being in physical control of a motor vehicle after consuming alcohol or marijuana if the person operates or is in physical control of a motor vehicle within this state and the person:(a) Is under the age of twenty-one; and(b) Has, within two hours after operating or being in physical control of the motor vehicle, either:(i) An alcohol concentration of at least 0.02 but less than the concentration 0.08, as shown by analysis of the person's breath or blood(ii) A THC concentration above 0.00 but less than the concentration 5.00, as shown by analysis of the person's blood

37. Probable Cause: Suspicion of DUI-Marijuana • Driving 10MPH or more under a posted speed limit. • Staying stopped at a stop sign or blinking red light after coming to a complete stop for longer than 3 to 5 minutes • Coming to a complete stop and staying stopped for longer than 3 to 5 minutes at a blinking yellow light • Changing lanes without signaling the change. • Swerving/drifting in traffic. • Leaving a parking area at night without the use of headlights • Not being able to remember the number of steps an arresting officer requests the driver to take in a straight line.

38. THC versus THC-COOH • I-502 adds a per se threshold for THC and distinguishes THC from THC-COOH. It does not change the legal requirements that must be met before a police officer can take a driver to a medical professional for a blood test.

39. THC versus THC-COOH • I-502 establishes a per se marijuana DUI cut-off of 5 nanograms of active THC metabolite per milliliter of whole blood (5 ng/mL), analogous to the per se 0.08 BAC cut-off for alcohol. • I-502 clarifies that THC-COOH, the inactive marijuana metabolite also known as carboxy-THC that is sometimes used to convict marijuana users of DUI under current law, is not to be considered in determining THC concentration for purposes of the per se limit.

40. THC versus THC-COOH • 11-COOH-THC is formed in the body by oxidation of the active metabolite 11-Hydroxy-THC by liver enzymes. It is then metabolized further by conjugation with glucuronide, forming a water-soluble congener which can be more easily excreted by the body.

41. THC versus THC-COOH • 11-COOH-THC is not psychoactive itself, but has a long half-life in the body of up to several days (or even weeks in very heavy users), making it the main metabolite tested for when blood or urine testing for cannabis use.

42. THC versus THC-COOH • More sensitive tests are able to distinguish between 11-OH-THC and 11-COOH-THC, which can help determine how recently cannabis was consumed.

43. THC versus THC-COOH • If only 11-COOH-THC is present then the cannabis was used some time ago and any impairment in cognitive ability or motor function will have dissipated.

44. THC versus THC-COOH • Whereas, if both 11-OH-THC and 11-COOH-THC are present then the cannabis was consumed more recently and motor impairment may still be present.

45. THC versus THC-COOH • Some jurisdictions where cannabis use is decriminalized or permitted under some circumstances use such tests when determining whether drivers were legally intoxicated and therefore unfit to drive, with the comparative levels of THC, 11-OH-THC and 11-COOH-THC being used to derive a "blood cannabis level" analogous to the blood alcohol level used in prosecuting impaired drivers.

46. THC versus THC-COOH • On the other hand in jurisdictions where cannabis is completely illegal, any detectable levels of 11-COOH-THC may be deemed to constitute driving while intoxicated, even though this approach has been criticized as tantamount to prohibition of "driving whilst being a regular user of cannabis" regardless of the presence or absence of any actual impairment that might impact on driving performance.

47. THC versus THC-COOH • While 11-COOH-THC does not have any psychoactive effects in its own right, it may still have a role in the analgesic and anti-inflammatory effects of cannabis, and has also been shown to moderate the effects of THC itself which may help explain the difference in subjective effects seen between occasional and regular users of cannabis.

48. THC versus THC-COOH • Half Life 11-OH-THC is one to two hours • Half Life 11-COOH-THC is 5 to 6 days

49. THC Metabolism-THCA • Tetrahydrocannabinolic acid (THCA, 2-COOH-THC), is a biosynthetic precursor of tetrahydrocannabinol (THC), the active component of Cannabis. THCA is found in variable quantities in fresh, undried cannabis, but is progressively decarboxylated to THC with drying, and especially under intense heating such as when cannabis is smoked. • Will convert under temperature to D-9THC or D-8THC

50. THCV • Tetrahydrocannabivarin (THCV, THV) is a homologue of tetrahydrocannabinol (THC) having a propyl (3-carbon) side chain. This terpeno-phenolic compound is found naturally in Cannabis, sometimes in significant amounts. The psychoactive effects of THCV in Cannabis preparations are not well characterized. • THCV has been shown to be a CB1 receptor antagonist, i.e. it blocks the effects of Hydroxy-THC.