CLALLAM COUNTY: Marijuana legalization raise questions for cops ... mainly about DUI

By Paul Gottlieb
Peninsula Daily News

PORT ANGELES — Law enforcement officials are wrestling with the implications of newly approved statewide Initiative 502, which soon will legalize possession of up to an ounce of marijuana — while possession of any amount remains illegal under federal law.

The measure, approved by voters in Tuesday's general election, legalizes possession of up to 1 ounce of marijuana beginning Dec. 6.

Some law enforcement officers said the initiative may prompt more marijuana smokers to drive impaired.

“My biggest concern really is driving,” Port Angeles Police Chief Terry Gallagher said last week.

Forks Police Chief Rick Bart agreed.

“I think it will be a real challenge for law enforcement, especially for driving,” he said.

“Are people going to take this as a message that it's OK to smoke dope and drive around?”

Sequim Police Chief Bill Dickinson also was concerned about an increase in marijuana-impaired drivers — and mechanisms for arresting them under the initiative.

“It's going to be extremely difficult to enforce,” he said. “I don't think we have the tools for that today.”

Gallagher added that the passage of medical marijuana laws in Washington “have made enforcement impossible.”

At the same time, the initiative's passage provided somewhat of a ho-hum moment for Clallam County law enforcement officials, who said marijuana arrests are already a low priority.

Clallam County Sheriff Bill Benedict said his deputies have issued five or fewer misdemeanor marijuana possession citations annually for the past two or three years.

North Olympic Peninsula law enforcement officials said they are assessing the impacts of enforcing the measure under a system similar to that which controls alcohol.

And the state Liquor Control Board is waiting to see what the federal government will do.

“Questions remain ahead as we work to implement I-502,” agency spokesman Brian Smith said in a statement.

“Chief among them is the issue that marijuana remains illegal at the federal level.”

Under current state law, possession of under 40 grams of marijuana — 1.4 ounces — is punishable by up to 90 days in jail and a fine of up to $500.

Under federal law, possession of any amount of marijuana is a misdemeanor punishable by a fine of up to six months in jail and a maximum $5,000 fine.

“The Department of Justice's enforcement of the Controlled Substances Act remains unchanged,” the agency said in a statement issued by the U.S. Attorney's Office in Seattle.

“In enacting the Controlled Substances Act, Congress determined that marijuana is a Schedule 1 controlled substance.

“The department is reviewing the ballot initiative here and in other states and has no additional comment at this time.”

Benedict, who said he supported Initiative 502, said he wants more clarification on the blood draws that will be required if an officer suspects a person of driving impaired.

Law enforcement officers also have drug-recognition expertise that gives them an indication if someone is drug-impaired, and officers conduct a field nystagmus test of a person's eye movements that can indicate drug use when the eyes move in a jerky motion, Port Angeles Deputy Police Chief Brian Smith said.

Marijuana-impaired drivers would be prosecuted and sentenced under existing state driving-under-the-influence laws.

The person's blood would be drawn by a medical professional and tested for tetrahydrocannabinol, or THC, the active ingredient in marijuana.

A concentration of above 5 nanograms of THC per milliliter of blood would subject the person to the same prosecution had the person registered an 0.08 blood-level concentration for alcohol.

Under I-502, Washington residents who already give their implied consent to be tested for alcohol consumption when they acquire a driver's license also give implied consent to get blood-tested in certain cases if they are stopped by an officer who has probable cause for an arrest and reasonable suspicion a driver is impaired, said Seattle lawyer Mark Cooke.

Cooke is the policy advocate for the American Civil Liberties Union of Washington, which endorsed the initiative and lent legal support for its passage.

“After you've been arrested via implied consent, you are supposed to consent to a blood draw,” he said.

“If you refuse a blood draw, that's where a search warrant comes in.”

Benedict said search warrants are obtainable in alcohol-related cases in which an accident has involved serious harm or death and the driver refuses a Breathalyzer test.

“One of the biggest deterrents to not driving when a person is drunk is how easy it is to determine the level of inebriation and hold them accountable,” he said.

“We do not now have that mechanism for marijuana,” he said.

“You're gonna need something other than observing bad driving to get a search warrant.”

Blood draws also are allowed, under authority of a search warrant, in cases in which an officer believes the driver is drug-impaired, Gallagher said.

Benedict said he sees “huge issues” with the blood-draw aspects of I-502.

“What would have to happen is that technology would have to come up with something that's less invasive than a blood draw,” he said.

“I see constitutional issues with that and certain logistical issues with it.

“That's probably why it's a good idea for it to take a year to sort it out.”

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Senior Staff Writer Paul Gottlieb can be reached at 360-452-2345, ext. 5060, or at paul.gottlieb@peninsuladailynews.com.

Last modified: November 10. 2012 7:52PM
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