'You Can Never Drive'

Washington's new standard for drugged driving puts patients in peril.


A few weeks after Washington voters approved the marijuana legalization initiative known as I-502, Ronnie Payton was driving south on Highway 167 through a chilly drizzle, heading to his daughter's place in Renton for Christmas dinner. As he passed the Interstate 405 interchange, he collided with an SUV that had merged onto the highway in front of him. Both drivers took the nearest exit and stopped in a parking lot. Although it was a minor accident, the SUV's driver called the police because Payton's insurance card did not list the car he was driving, which belonged to his boss.

That call resulted in Payton's arrest for driving under the influence of a drug (DUID). He was ultimately acquitted, but only because his lawyer managed to dodge a provision of I-502 that in practice makes it illegal for medical marijuana users like Payton to drive.

The state trooper who responded to the accident report, Cliff Roberts, later reported that Payton, a 65-year-old Vietnam veteran who worked for a Seattle organization that arranges housing for homeless people, was shivering and that he had droopy eyelids, bloodshot eyes, and an unsteady gait. Payton mentioned that he used marijuana to treat his glaucoma, as permitted by state law, but said he had not smoked any since 7 a.m., about 12 hours before the accident. Roberts asked Payton to undergo a series of roadside sobriety tests, which included standing on one foot and walking heel to toe. His performance was "extremely poor."

hippie bus
BellaLago / photo on flickr

Since a breath test found no alcohol in Payton's system, Roberts arrested him for DUID and read him a statement about Washington's "implied consent" law. Under that law, anyone arrested for DUID had to cooperate with a blood test or lose his driver's license. Payton cooperated, and the test put his THC level at 8.6 nanograms per milliliter, well above the five-nanogram limit established by I-502.

If that test result had been admitted as evidence at Payton's trial, he would have been convicted automatically. But the prosecution agreed not to use the test after Payton's lawyer, Jesse Corkern, argued that it should be suppressed for several reasons, including the fact that the state toxicologist had not yet established standards for measuring THC in blood. Because the jury never heard about the blood test, Corkern was able to win an acquittal, arguing that what Roberts interpreted as signs of intoxication could be explained by Payton's glaucoma, his war injuries (which left him with "a slightly hunchback gait"), the cold weather, and the stress of the situation. Corkern notes that "the state's own expert testified that he should not be impaired beyond three hours after smoking marijuana."

Washington's five-nanogram rule, modeled after the per se standard for alcohol, was meant to reassure voters worried about the threat posed by stoned drivers. But like all per se standards, it treats some people as unsafe to drive even when they're not. Last year experiments by KIRO, the CBS station in Seattle, and KDVR, the Fox affiliate in Denver, showed that regular cannabis consumers can perform competently on driving courses and simulators at THC levels far above five nanograms. The lack of correspondence between the new standard and impairment is especially unfair to medical marijuana users, some of whom may be above the five-nanogram limit all the time, meaning they are never legally allowed to drive in Washington. "I myself am over the limit every day and have been for decades," says Martin Martinez, founder of Washington's first medical marijuana collective, who started using marijuana for pain after a motorcycle crash in 1986.

'A Stupid Idea'

"The five-nanogram rule doesn't make sense," says Mark Kleiman, a University of California at Los Angeles drug policy expert who was hired to advise Washington's cannabis regulators. "It doesn't correspond to impairment, and for regular users, they're always going to be over the limit. It would be absurd to say you can smoke pot but then you can never drive."

But Kleiman argues that many of the people who complained about the DUID standard during the I-502 campaign were medical marijuana suppliers who were mainly interested in defending their financial interests. "Some of the people in the medical racket decided [the initiative] was a threat to their livelihood," he says, "and they were correct. They picked the five-nanogram rule as the thing to campaign against. I think some people were sincerely persuaded that it was a stupid idea, which it was and is, but I don't think that was the basis of the opposition, just the stake that the opposition grabbed."

Aaron Pelley, a Seattle lawyer who specializes in DUID cases, sees it differently. "Although there were others," he says, "that singular issue was driving the medical cannabis community to react to I-502. It had nothing to do with entrepreneurs or people who wanted to make money, or wanted to protect their [financial] interests. We're talking about people who had cancer, AIDS, hepatitis C, who would wake up at five nanograms."

Such people are in legal peril whenever they drive in Washington, and if they are arrested for DUID their only hope to avoid conviction is getting their blood test results suppressed. Although it is not clear why the prosecution agreed to suppress Ronnie Payton's blood test, a case the U.S. Supreme Court decided between his arrest and his trial may have had something to with it. In Missouri v. McNeely, decided in April 2013, the Court ruled that police may not draw blood from a nonconsenting driver without a warrant based simply on the fact that alcohol levels fall over time. The decision did not directly address situations like Payton's, since he ostensibly consented to the drawing of his blood. But McNeely cast doubt on the validity of implied consent laws to the extent that courts have upheld them based on the assumption that police do not need a warrant to draw drivers' blood. Last summer Washington's legislature responded to McNeely by amending the state's law so that implied consent no longer applies to blood tests, meaning a warrant is now generally required.

The standard for a warrant, however, is the same as the standard for an arrest: probable cause. Although Trooper Roberts thought he had probable cause to believe Payton was driving while impaired by marijuana, Payton was acquitted, which would have been impossible had the blood test been admitted. "Probable cause is a very low threshold," says Aaron Pelley. Police commonly cite evidence such as wide pupils, bloodshot eyes, and the odor of marijuana, none of which necessarily indicates a driver is impaired. Police may even claim a driver had a "green tongue," says Pelley, which is "how I know a cop is lying and padding his facts." As in Payton's case, poor performance on sobriety tests may be due to physical limitations, which are especially common among medical marijuana patients. In practice, Pelley says, the fact that a driver has a medical marijuana recommendation may be all it takes to start down a path that leads to probable cause, which in turn justifies a blood test that may result in an automatic conviction.

Despite the threat to patients, Martinez says, "so far there's been little fallout." Philip Dawdy of the Washington Cannabis Association agrees that, contrary to his own fears, there have not been "reams of patients getting busted all over the place who were over five nanograms but were completely functional." He adds that "we need more time and more data to really definitively say."

In 2013, the year after I-502 was approved, the Washington State Toxicology Laboratory tested the blood samples of 5,468 DUID arrestees, up from 5,298 in 2012. That's an increase of 3 percent, about the same as the increases seen in the previous three years. The share testing positive for THC rose by a lot more, from 18.6 percent to 24.9 percent, an increase of about 34 percent, which may reflect an overall increase in marijuana use or the impact of greater police awareness. Lt. Rob Sharpe, commander of the Washington State Patrol's Impaired Driving Section, notes that additional officers were trained to recognize drugged drivers in anticipation of marijuana legalization.

'Open Season on Kids'

Another DUID provision in I-502 seems even less defensible than the five-nanogram standard. It says people younger than 21, which is the initiative's cutoff for buying and possessing marijuana, are committing a crime if they drive with any amount of THC in their blood. Alison Holcomb, who ran the I-502 campaign, says that "zero tolerance" rule was part of an effort to "parallel to the greatest extent possible the standards we have for alcohol." She adds that "we wanted to give as much voter reassurance as possible that minor use would be discouraged, and threatening the driver's license of someone under 21 if they test positive for THC is a good way to discourage them from engaging in the use of marijuana."

The upshot, however, is that 18-to-20-year-olds, who are considered adults in most other respects, not only are still breaking the law when they smoke pot but are breaking it again if they get behind the wheel the next day. "Any detectable amount of weed in your system, you're automatically guilty," says Douglas Hiatt, a Seattle defense attorney and cannabis activist who opposed I-502. "It's open season on kids. [If you're] 16 to 21 and you get pulled over, any smell of weed in the car, you're going for a blood test. Any detectable amount, boom, there goes your license. Sorry, kid. Oh, you're a medical marijuana patient? Well, fuck you, that doesn't matter either."

Despite the rancor generated by I-502's strategic compromises, the initiative's drawbacks have to be weighed against the good it accomplished by partially rolling back the war on drugs, thereby setting an example for other jurisdictions that may be willing to give pot peace a chance. "I'm still to this day very conflicted," Pelley says, "because I know 10,000 people this year didn't get arrested for possession charges in Washington state. That's a huge number and a huge victory. We changed the landscape of the discussion. But I also know we made a sacrifice in order to do that."

Senior Editor Jacob Sullum ( writes a drug policy column for Forbes.

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    1. He was also the voice of “Shaggy” on Scooby Doo. Was a much more active actor than a lot of people realized. My favorite was when he played a Columbo impersonator, though I don’t remember the TV show.

      1. Don’t forget Cliffjumper from Transformers! 🙂

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          1. Start working at home with Google. It’s a great work at home opportunity. Just work for few hours. I earn up to $100 a day. I can’t believe how easy it was once I tried it out

    2. Finally taken down by exposure to chemical soaked wood paneling, formica, and teflon coated aluminum cookware.

      I’m still escaping the effects myself, but it’s probably only a matter of time, sigh… us poor victims of the 70s.

      1. I shouldn’t have left out whatever stuff it is that was used to make everything avocado green or harvest gold.

        1. Bad taste?

      2. Finally taken down by exposure to chemical soaked wood paneling, formica, and teflon coated aluminum cookware.

        Scares took him out?

        1. Is your sarcasm meter broken?

          1. Along with the rest of me… yes.
            Stayed up late waiting for my kid to get home. I’m a mess today.

            1. I had to get up at 4am this morning, stop whining! (;

          2. Although I wasn’t completely joking about the cookware. I remember in my parents house, all the cookware was that teflon coated trash with all the teflon coating long gone, exposing a cratered aluminum surface. Now that really can’t be too great for your health.

            1. Hogwash! Teflon flakes are just carbon-flourine bonds. It’s practically a vitamin. No, it is a vitamin. Fact.

              1. What about aluminum? Is that a vitamin also?

                1. Vitamin Al. Duh.

  1. You may have mixed emotions regarding the teacher tenure ruling, but you cannot argue with one positive outcome:
    “Politicians don’t make a peep on teacher tenure ruling”
    “Rarely has a major court decision been met with such stony silence by California politicians as the ruling declaring that the state’s teacher tenure laws hurt poor and minority-heavy schools and are unconstitutional.”…..553081.php

    Yes, it has shut up the forever-yapping ruling class, except for one schmuck who is trying to see how stupid the voters really are:
    “Superintendent of Public Education Tom Torlakson, who is facing a November re-election challenge from charter schools advocate Marshall Tuck.
    “Attracting, training and nurturing talented and dedicated educators are among the most important tasks facing every school district,” Torlakson said. The ruling “may inadvertently make this critical work even more challenging than it already is.””

    1. Just found out from my daughter a few days ago that they have made the decision to either home school my 2 grandchildren or send them to private school. I had been pushing this and it was great news for me. I do not want those kids going to some shit public school to be indoctrinated into proglotardism by a bunch of public union morons.

    2. I still don’t understand why teachers don’t have degrees in what they teach. A chemistry teacher should have a chemistry degree. “Teaching,” at least by that level, should be like writing or public speaking. It should be a course or series of courses you take to increase your ability to communicate your expertise.

      1. So, you’re saying that all of our public school teachers should now be required to have a degree in collective indoctrination, with maybe a minor in gender studies?

        1. Yeah, I suppose it would be more honest if they called the degree “Colectivist Indoctrination.”
          I’ll be using that one, BTW.

          1. If a market were allowed to fully service education demand, there would indeed be logical credentialed teachers and students.

      2. “I still don’t understand why teachers don’t have degrees in what they teach. A chemistry teacher should have a chemistry degree…”

        Hmmm… I have an awesomely expensive “chemistry degree”, and ~$65k + of student debt, should I go to work for DuPont, 3M, Bristol-Myers Squibb, or… what about teaching high-schoolers at Dipshit community public schools? Decisions, decisions…

        1. Those who can, do; those who can’t, teach.

          1. And those who can’t teach, administrate!

            1. And those who can’t administrate, community organize!

              1. Should I get a Phd in alphabet theory and spelling?

              2. Those who can’t community organize, preside.

        2. That’s the awesome thing about a free market, people make can make those decisions. And some people will. Maybe they like kids, or teaching, or want to live in their hometown, or are really into jailbait.

          And, if there ever is a free market in teaching, I imagine a position for a chemistry teacher with the requirement of a BS in Chemistry will pay better than say, English teacher with a requirement of an English degree. That will help lure people from the chemical industry too.

      3. I still don’t understand why teachers don’t have degrees in what they teach

        Ummm…since NCLB they have to. In order to meet the “highly-qualified” criterion of the law, teachers of core academic subjects must pass a test on that subject. The tests are basically written in such a way that you need four-years of post-secondary education in the subject (i.e., a degree) to pass it.

        Jus’ sayin’

      4. In FL, you have to have a minor in the subject to teach it full time in high school. Which was fun. Over the summer there will be a class that is 50/50 split between ChemEs knocking out their last chemistry elective and Ed Majors doing their last minor in “Analytic Chemistry”. We cruised through it, they sweated it.

        1. I had an O-chem teacher in high school who was a real-life chemist, worked summers in the lab at a local dairy, and I believe taught some evening classes at a local branch campus of Pitt. He was the antithesis of the “can’t do? Teach” trope.

          1. You went to a private school?

    3. The entire logic behind tenure for primary school teachers is absurd. The reason tenure exists in college is ostensibly so that professors won’t be punished for publishing something the authorities at the university don’t like. Once you have tenure, it’s very hard to get rid of you. It’s therefore supposed to be a means of insuring academic freedom among university professors.

      There’s no such justification for public school teachers. Unlike university professors, most of them aren’t publishing works that theoretically might get them in trouble with the administration. Tenure therefore exists for no purpose except to make it difficult to fire mediocre teachers.

      1. Once you have tenure, it’s very hard to get rid of you

        Unless you’re a … shudder … warmy DENIER!

    4. “”The California Teachers Association and their allies in labor are a predominant source of money for both Gov. Brown and down-ballot Democrats in the state,” Gerston noted. “To speak out in favor of the decision would set off a major rift. To speak out against it would undermine their standing as education reformers.””

      They rely on the 5-minute, goldfish-like memory of voters, where they can wait until the next news cycle, then announce how ‘Charter Schools are hurting their kids!’ and demand Moar Funds for their Teachers Union crony pals.

  2. “for regular users, they’re always going to be over the limit. It would be absurd to say you can smoke pot but then you can never drive.””

    When has “absurd” ever stopped legislators?

    while i don’t know anything about blood tests, i do people who smoked weed and quit, and still showed positive more than a month later on pee-tests.

    the persistence of the stuff has nothing to do with ‘impairment’; and even that part itself is highly questionable. unless they’re measuring, ‘taste in music’.

    1. This is what I was thinking. How is it that this law would only punish medical MJ users, and not everyone? I’m not sure how these tests are going to work, but it sure sounds like there is a potential for abuse. And where there is a potential for abuse, we all know what happens.

      1. And where there is a potential for abuse, we all know what happens.


    2. I smoke weed every single day, and by the next morning (like now) I’m not impaired in any way. But it’s entirely possible I would fail a blood test right now; in fact, it’s likely. Yay!

      1. I have to give props to High Times for their headline-fu here =

        The Remains of the Jay: How Long Does Pot Stay in Your System?

        “A 2009 published study of a pregnant Norwegian woman, who chronically smoked cannabis, found THC-COOH in her urine for 84 days after she finally gave up smoking (she was threatened with forced hospitalization if she didn’t quit, permissible under Norwegian law). Another ’09 study, “Do (THC) Concentrations Indicate Recent Use in Cannabis Users,” published in the journal Addiction, assessed the whole blood THC concentrations of 25 frequent cannabis users who were confined to a secure research facility during a weeklong span of pot abstinence. The results revealed whole blood THC concentrations that were highly variable among participants, with nine having no quantifiable THC at any time. However, six subjects displayed substantial THC concentrations in their blood even after seven days of cessation from cannabis”

        Science. It still hasn’t explained the appeal of Phish, but they’re getting there.

        1. I don’t know about Phish, but I do know about Genesis. Peter Gabriel Genesis, of course.

          1. Pft. Trick of the Tail was better than anything Gabriel ever did.

            1. I didn’t realize that you had suffered brain damage when you were in that accident.

              1. I’ve been living in a land of confusion ever since.

          2. I think the highlight-able section there that i missed was, “The results revealed whole blood THC concentrations that were highly variable among participants, with nine having no quantifiable THC at any time

            Not only are false positives a huge issue, but there’s also a substantial portion for whom these tests are completely ineffective.

            Meaning, THC is a substance with trace effects that are so wildly different based on human metabolism, that these tests are effectively meaningless.

            That aside: studies have shown that fans of sincere* prog-rock show signs of childhood brain damage from excess consumption of DXM. Mom left you alone with the Robitussin once too often.

            (* as opposed to tongue-in-cheek: a la Zappa)

            1. I’m going to go listen to Hawkwind and read an Elric novel. I’d better get stoned first. I have time, seeing as my friend is blowing off our tennis game as far as I can tell.

      2. Epi, you’re not allowed to drive.

    1. POTUS was in my neck of the woods for the past couple of days, huh? I thought I smelled something, but just figured it was one of the refineries venting gasses. Who knew?

  3. The issue isn’t limited to marijuana. Legal alcohol limits having been falling for years to such absurdly low levels that essentially one drink relegates one a drunk driver (thank you MADD).

    1. I’m kind of torn on BAC limits. On the one hand I don’t want to see sober people get a DUI just for being over some arbitrary limit. On the other hand, without a legal limit I’m afraid the de facto limit will become 0.0.

  4. I saw this coming long before “legalization” was finalized. Mentioned it often, no one noticed or cared. Just another example of how life is a lot like watching a slow motion train collision on the retard circus rail road. No matter how obvious, no one gets it.

  5. Uh, WTF did reason resurrect this one?

  6. The blurb on the main H&R page doesn’t even say that this was originally posted nine days ago. (It was obvious, however, that there was no way this story could get 50 comments in three minutes.)

    1. there was no way this story could get 50 comments in three minutes.

      *** rising intonation ***

      What about you-know-who?

  7. “It doesn’t correspond to impairment, and for regular users, they’re always going to be over the limit. It would be absurd to say you can smoke pot but then you can never drive.”

    Good thing marijuana is “legal” now.

  8. Stop Drugged Driving!!!!!!!!!!!!!

  9. who are considered adults in most other respects, not only are still breaking the law when they smoke pot but are breaking it again

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