Driving High in Washington: What’s the Law?

In 2012, Washington State voters approved Initiative 502, which legalized the recreational sale and use of marijuana for persons 21 and over. However, it’s illegal to drive high – the same way it’s illegal to drive drunk. Let’s look at how and why Washington State law addresses cannabis and driving.

Driving Drunk vs. Driving High

If a trooper suspects you’re driving while drunk? It’s straightforward. The trooper can perform a field sobriety test and a breathalyzer can supply instant results. Also, we have a strong understanding of how the body metabolizes alcohol. In other words, that BAC level is a good indicator of how much you’ve consumed.

It’s a different story when it comes to marijuana. THC is the psychoactive compound in cannabis products that gives users a “high” and it behaves less predictably in the body that alcohol. For example, THC can be stored in your fatty tissues for up to 28 days!

To complicate things further, a driver who is high might pass a field sobriety test, even though he or she may be dangerous behind the wheel. And there is no “on the spot” test a trooper can perform – only a blood test, which would need to be done at a lab.

Is Driving High Safer than Driving Drunk?

Many cannabis users argue that it’s safer to drive high than drunk. However, cannabis products can impact users in a variety of ways that make it unsafe to drive. Some potential side effects could include:

  • Slowed response times
  • Anxiety
  • Paranoia
  • Hallucinations
  • Distortions with judgment

Sometimes, the effects of THC aren’t felt right away. For instance, the impact from edibles may come a half hour or more after ingesting. This could be a dangerous situation on the road.

Bottom line, you should not drive high or drunk.

Washington State Laws about Marijuana and Driving

Here’s another reason to not drive high: it’s illegal.

Washington State expanded the driving under the influence (“DUI”) laws to include cannabis after the passage of I-502. In Washington State, you will be charged with a DUI if you have 5 nanograms of THC per liter of blood in your system within two hours of driving. This is a “per se” legal limit, which means you will be considered impaired if that amount is found in your bloodstream. No other criteria necessary. In other words, a Washington State driver can be charged with a DUI even if they exhibit no other symptoms of impairment.

The table below details the various Washington State laws related to marijuana and driving.

RCW 46.20.308Implied consent – test refusal – proceduresAnyone operating a vehicle in the State is deemed to have given consent for drug and/or alcohol testing if required. If a driver refuses a test, their license or permit can be revoked for a minimum of one year.
RCW 46.61.502Driving under the influenceA driver is guilty of driving under the influence if their blood level registers a THC concentration of 5 or higher within 2 hours of driving.
RCW 46.61.508Persons under the influence of intoxicating liquor or drug – evidence – tests – information concerning testsDescribes the standards for administering a blood test to a suspected intoxicated driver. So long as these are followed, the results will be considered valid for the use of civil and/or criminal charges.
RCW 46.61.745Possessing or consuming marijuana in vehicle on highwayIt is a traffic infraction for a driver or passenger to consume marijuana while driving or have it accessible (e.g., not secured in the trunk).

Washington State Supreme Court Upholds the THC Per Se Law

Some cannabis users may feel the per se law of 5 nanograms is unfair. One user who felt that way and challenged the law was Douglas Fraser.

In July 2017, Fraser was pulled over for driving erratically. The trooper noted that Fraser was sweating profusely and exhibited tremors. After a blood draw, it was discovered that Fraser’s THC level was 9.4 – nearly double the legal limit. Consequently, he was charged with a DUI.

However, Fraser attempted to fight the charges in a big way. He made the claim that the law itself was unconstitutional because he believed the 5 nanogram per se amount to be arbitrary. As such, he felt he shouldn’t have been charged with a DUI. In May of 2022, the Washington State Supreme Court heard the case and decided against Fraser. Ultimately, he failed to meet his burden of proof.

They concluded:

Here, we find it reasonable to conceive of facts that people who have recently consumed cannabis will be deterred from driving because of the risk of conviction and a per se THC prong and that the highways will be safer because of it.

It is possible that we will develop a better understanding of cannabis in the body and more accurate ways for measuring impairment in the future. But remember, driving is a privilege and not a right. When you choose to drive, you agree to follow all of Washington State’s laws as they currently stand.

Penalties for Driving Under the Influence

Simply put, the penalties for driving under the influence of alcohol or drugs in Washington are strict. Besides that, you run the risk of hurting innocent people. Don’t do it!

A DUI can negatively impact your life in many ways:

  • License suspension
  • Fines (up to $5,000) plus possible court costs
  • Jail time
  • Criminal record/failed background checks
  • Insurance premium increases
  • Loss of employment/missed time from work
  • Damage to your future employment opportunities
  • Social stigma
  • Personal shame and embarrassment

Of course, things get much worse if you cause a car crash while high. If you end up killing someone, you could face a Class A felony, which carries up to a lifetime prison sentence.

If you wish to use cannabis either medicinally or recreationally, please be responsible. Plan on staying home, at a friend’s house, or another safe place. If you must leave, use a designated driver the same way you would if drinking.

When You’ve Been the Victim of a High Driver

Unfortunately, intoxicated drivers cause crashes every day. In fact, 58% of all fatal crashes on Washington roads involved an impaired driver. If you or a loved one has been a victim, we can help. Please reach out to our team of car accident attorneys. You may be eligible to receive compensation for your medical bills, lost wages, pain, and suffering.

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