The voters have spoken, and with the passage of Initiative 502 it will be legal for adults over the age of 21 to possess up to an ounce of marijuana, 16 ounces of infused edibles or 72 ounces of liquid infused products as of Dec. 6. Now, law enforcement officials are left to figure out how the new law impacts existing cases and potentially new ones.
Grays Harbor County Prosecutor Stew Menefee said Friday his office may dismiss some misdemeanor marijuana cases. King and Pierce counties went further, dismissing all pending misdemeanor marijuana possession cases.
“The law is not retroactive, so we’ll be taking a look at those cases on an individual basis,” Menefee said. He said there might be roughly 15 to 20 pending cases.
“We’re going to look at it with some degree of realism, try to make some adjustments recognizing the law so somebody the last day before it becomes legal isn’t unfairly prosecuted. On the other hand, if the the individual has a long history of violating the law or had a substantial amount or there are other circumstances, that’s going to affect how we look at it, too,” Menefee added.
No permitting process is in place yet for legal sales of recreational marijuana. Medical marijuana grows and distribution are not affected by the new law, but other grows and sales are still illegal. The Washington State Liquor Control Board has said it expects to take the full year allowed by the initiative to craft its policies on permitting.
“I’m not sure how that dynamic squares. If you can legally possess it but not legally obtain it, how does that remove it from the drug dealers and the drug cartels?” Hoquiam Police Chief Jeff Myers wondered.
The law does define new rules for driving under the influence of marijuana, stating a legal limit of active THC blood levels of 5 nanograms per milliliter. How implied consent laws for blood testing apply to legal marijuana is less clear, and there’s no breath test for marijuana.
“This initiative that allowed for this law to come into place does not take into consideration a lot of the ripple effect,” Sheriff Rick Scott said.
For now, Scott said, there’s no change in how deputies will handle marijuana possession cases.
“We’re going to continue to investigate these cases … until the prosecutor gives us some clear direction on misdemeanor possession,” Scott said.
Blood testing for potential DUI cases involving marijuana is another challenge, Scott said.
“There’s an issue of tying up an officer for hours and hours and hours waiting to get a blood test,” he said.
Myers added that the state’s toxicology lab, which would handle the blood tests, is already backlogged. It can take weeks or months for many tests results to come back, he said.
Determining impairment may still fall to officers performing field sobriety tests, Myers said. DUI convictions are allowed under state law when a person is “affected to an appreciable degree.” That means a person can be convicted of DUI even if their blood alcohol content is less than .08, or if they’re impaired by a prescription drug. In Hoquiam, a woman was recently arrested after crashing her truck into a tree because she was appreciably impaired by prescription drugs. What appreciable impairment looks like for somebody who has consumed marijuana may be very different between different people, making legal impairment tough to define, Myers said.
Myers said there are many important questions surrounding the new law still waiting for answers. How does it affect drug-free workplace policies? Will first responders be allowed to consume marijuana? How will the federal government respond?
“I fear we are doing nothing more than cloud an already very complicated issue,” Myers said. “Unfortunately, we probably have more questions than answers.”
He called the new law the most sweeping change in his 25 years in law enforcement.
“This is going to be the single most radical change of law that I can think of,” Myers said.
“This is going to impact not only law enforcement, but citizens, employers, courts, businesses, zoning. It’s unprecedented.”