by:  Brett Nagle

Marijuana Defense Laywer

Criminal Defense Attorney Brett S. Nagle


On November 6, 2012, Washington voters approved Initiative Measure 502, legalizing marijuana possession in Washington State.  This change will vastly alter the landscape of marijuana enforcement in our state.  It will have profound effects on the enforcement of laws relating to possession of marijuana as well as prosecutions for driving under the influence of marijuana (DUI) in Washington State.  Here, I will attempt to provide a summary of the legislation and explain the current state of the law.  Please understand that this area of the law is developing rapidly.  This information is not a substitute for legal advice particular to your case or situation.  If you have questions, you should consult with an attorney.

Initiative 502 will decriminalize the production, processing, selling, and possession of marijuana in user amounts when regulated according the the statute.  The law orders the Washington State Liquor Control Board (LCB) to adopt rules to license and regulate the growing, packaging, and sale of marijuana.  The law orders LCB to adopt these rules by December 1, 2013.  LCB will be responsible for deciding who gets a license to grow, package, and sell marijuana.  Once these rules are in place, marijuana legally bought and possessed in accordance with the rules will not be a crime.

Starting December 6, 2012, the initiative changes Washington law to allow individuals over 21 years of age to possess one “useable ounce” of marijuana.  The term “useable” means dried marijuana flowers.  Until December 6, 2012, it is still illegal to possess marijuana.  Even after December 6, 2012, it will be illegal to buy and sell marijuana, until the LCB establishes rules for regulating production, distribution and sale.  Possession of marijuana by those under 21 years of age will still be illegal.

Marijuana and Driving:

Initiative 502 also changes the laws regarding driving under the influence (DUI) and marijuana.  If a police officer has reasonable grounds to believe a driver is under the influence of marijuana, the officer can transport the individual to a hospital for a blood test.  If the driver refuses the blood test, his or her license can be suspended.  Examples of “reasonable grounds” can include:  bad driving, bloodshot eyes, or the odor of marijuana.  Except to specifically recognize marijuana as a drug capable of triggering implied consent warnings (which it already was before I-502 passed), this does not change existing implied consent law in Washington.

Initiative 502 adopts a “per se” limit for marijuana consumption and driving, similar to the per se limit for alcohol in Washington (.08).  The law will provide that any blood test result of 5.00 nano grams  of THC per whole liter of blood.  For those under 21, driving with any marijuana in the bloodstream is illegal.  Driving in excess of this limit can cause suspension of your drivers license and jail time.

This per-se limit will prove controversial.  Whether and to what extent a driver is affected by THC at a given amount is highly variable.  THC impairment depends on a variety of factors, like the user’s tolerance and metabolism.  Additionally marijuana potency is highly variable, so it is difficult to translate the 5.0 limit into an amount of marijuana consumed.  It is also difficult to say how long marijuana will remain in the system after use.  This limit will be debated and litigated in years to come.

Felony Possession:

The manufacture, sale, and delivery of marijuana is still a felony that can send you to prison.  Until the government (LCB) adopts rules for the legal manufacture and sale of marijuana, it is impossible for people to comply with them, and thus, illegal to manufacture or possess marijuana.

Even after these rules take effect, the government can prosecute people for failing to comply with the rules.  This could include, for example: 1.)  possessing too much marijuana; 2.) growing or selling without a license; or, 3.) advertising the sale of marijuana too close to a school or other prohibited place.

Federal Pre-emption:

Federal law still prohibits possession of marijuana.  The federal government (DEA, FBI, etc.) can still prosecute Washington citizens for marijuana possession under federal law.  This can subject people to jail or prison, and cause them to lose eligibility for federal benefits like small business loans and student loans.  Whether, or to what extent, the federal government will seek to pre-empt Washington law and prosecute marijuana crimes federally remains to be seen.

If you have been charged with a drug crime, consult an experienced Washington attorney and former prosecutor immediately. Call 425-280-8906 for a free consultation.

Mr. Nagle accepts cases throughout Washington State, focusing on greater Snohomish and King Counties, including the following areas: Lynnwood, Everett, Mill Creek, Bothell, Edmonds, Arlington, Kenmore, Kirkland, Lake Stevens, Marysville, Mountlake Terrace, Mukilteo, Redmond, Seattle, Stanwood, Seattle, and Shoreline. Brett specializes in Snohomish County, serving the following zip codes: 98223, 98012, 98021, 98241, 98020, 98026, 98201, 98203, 98204, 98205, 98206, 98207, 98208, 98213, 98251, 98252, 98256, 98258, 98037, 98046, 98087, 98270, 98271, 98272, 98043, 98275, 98259, 98287, 98290, 98291, 98296, 98292, 98293, 98294.