In State v. Fraser, ___ Wn.2d ___ 2022 WL ___ (May 12, 2022), the Washington Supreme Court unanimously rejected constitutional attacks on the per se THC statutory DUI prong. The Court’s introductory section, summarizes the ruling as follows: In 2012, Washington voters approved Initiative 502, which legalized cannabis1 for recreational use, as well as created a regulatory system for cannabis. In doing so, the initiative modified the driving under the influence (DUI) law and created a prong under which a person can be convicted of DUI depending on the level of tetrahydrocannabinol (THC) found in one’s blood. Under RCW 46.61.502(1)(b) a person is per se guilty of DUI when one drives a vehicle and “[t]he person has, within two hours after driving, a THC concentration of 5.00 or higher [nanograms per milliliter (ng/mL)] as shown by analysis of the person’s blood” (hereinafter the “per se THC prong”). Douglas Fraser III was convicted of DUI under the per se THC prong for driving with a THC blood level of 9.4 +/- 2.5 ng/mL within two hours of driving.

On appeal, Fraser challenged the constitutionality of this prong of the DUI statute, claiming that the statute is not a legitimate exercise of the legislature’s police power, that it is unconstitutionally vague, and that it is “facially unconstitutionally overbroad because no scientific evidence supports the conclusion that there is a perse concentration of active THC at which all or most drivers would be impaired.” The Court held that this statute is constitutional and that it is a legitimate exercise of police powers as the limit is rationally and substantially related to highway safety. The research shows that the minimum 5.00 ng/mL limit appears to be related to recent cannabis consumption for most people (including chronic users), which is linked to impaired driving and highway safety, although there is no similar scientific correlation to impairment akin to the minimum 0.08 percent blood alcohol concentration (BAC) limit for alcohol.

Further, there is a reasonable assumption that having the limit will deter people who have recently consumed cannabis from driving, thus reasonably and substantially furthering a legitimate state interest. We hold that this statute is not vague because this specific 5.00 ng/mL limit does not lead to arbitrary enforcement, but rather it avoids arbitrary, erratic, and discriminatory enforcement.

Finally, the Court held that this statute is not facially unconstitutional because there exists a circumstance under which the limit can be constitutionally applied even under Fraser’s allegations of arbitrariness. Fraser’s own expert testified that some people are impaired at a THC blood level of 5.00 ng/mL. Therefore, when someone who is impaired at 5.00 ng/mL consumes cannabis and drives, this limit would not be unconstitutionally arbitrary in that circumstance. Accordingly, Fraser’s conviction was affirmed.

In footnote 1, of the Fraser Opinion, the Court also declared as follows: that the word “marijuana” is now a disfavored word, and that the favored word is “cannabis:” The court stated, "We recognize that using the term “marijuana” instead of “cannabis” is rooted in racism. See, e.g., Michael Vitiello, Marijuana Legalization, Racial Disparity, and the Hope for Reform, 23 LEWIS & CLARK L. REV. 789, 797-98 (2019) (“Advocates of criminalizing marijuana often made overtly racist appeals.”). The transition from using the scientific “cannabis” to “marijuana” or “marihuana” in the early 20th century stems from anti-Mexican, and other racist and anti-immigrant, sentiments and efforts to demonize cannabis. Id. at 797-99. Our legislature has recently acknowledged this discriminatory origin and has enacted a law to replace “marijuana” with “cannabis” throughout the Revised Code of Washington with various effective dates depending on the statute. See LAWS OF 2022, ch. 16, § 1. Accordingly, unless quoting language or referring to the text of a statute, we use “cannabis.”

Result: Affirmance of Snohomish County Superior Court conviction of Douglas Fraser III for DUI under the statutory per se THC prong for driving with a THC blood level of 9.4 +/- 2.5 ng/mL within two hours of driving. Full opinion here.

Reality--Anyone who drives impaired by alcohol, or any drug, is guilty of driving under the influence.  We have legal limits in Washington for "per se" prosecution purposes. Meaning if your BAC or blood results show that within 2 hours of driving you have a BAC concentration of .08 or above or THC concentration of 5.00 or higher [nanograms per milliliter (ng/mL)] as shown by analysis of the person’s blood, and the prosecution can prove you were driving, within that time period, with the per se levels, you are guilty.  But per se levels should not be confused with the level of impairment nor should anyone think you are ONLY impaired if you reach the legal limit.  A person can be impaired well under the per se levels and be prosecuted. 

Bottom line--DUI is an entirely preventable crime. You have to drink and then make a choice to drive. Understand that you can and will be prosecuted whether you are below or above the legal limit if the evidence supports that you were "impaired".  Do not read this case for the proposition that impairment starts at an .08 or a THC concentration of 5.00ng/mL.  Impairment is the key. 

--Melanie Dane