DUI Conviction May Be Based on Cannabis Level, Not Impairment
In State v. Fraser, 509 P.3d 282 (Wash. 2022), the Supreme Court of Washington upheld as constitutional the state's driving under the influence (DUI) law, which includes a prong under which individuals can be convicted of DUI based on the level of tetrahydrocannabinol (THC) in their blood.
Facts of the Case
On July 11, 2017, Douglas Fraser, III, was pulled over for speeding, driving alone in a high-occupancy vehicle lane, and driving erratically. Mr. Fraser had been wearing an employee badge for a local cannabis dispensary and removed it after the patrol trooper noticed the badge. Although the trooper did not observe any odor of intoxicants, he observed Mr. Fraser to be sweating, exhibiting tremors, and had dark circles under his eyes. After asking Mr. Fraser to exit the vehicle, he also observed raised taste buds on the back of his tongue. The trooper later testified that Mr. Fraser acknowledged smoking cannabis “at least 20 hours” before the stop (Fraser, p 286).
Mr. Fraser later testified that he did not feel impaired when he was stopped by the trooper. Mr. Fraser participated in nonphysical standard field sobriety tests, which revealed eyelid tremor and poor time estimation, and Mr. Fraser also had difficulty with the finger-to-nose-test. Based on the sum of these findings, Mr. Fraser was arrested for a DUI. He subsequently consented to a blood draw. His THC blood concertation was 9.4 +/−2.5 ng/mL.
Mr. Fraser was charged under a per se THC prong of the state's DUI law, which was established when Washington voters approved the legalization of cannabis. The initiative modified existing law and set the THC threshold for DUI conviction at 5.0 ng/mL. Mr. Fraser moved to declare the per se THC prong unconstitutionally vague and an invalid exercise of police power.
Mr. Fraser presented testimony that there is not a standard blood level that equates with impairment. The trial court concluded that the statute created a rule that sufficiently put cannabis consumers on notice and, therefore, was not unreasonably vague. The court found that it is a legitimate use of police powers because the per se limit was rationally tied to a legitimate state interest in preventing impaired driving. The trial court found him guilty of his DUI based on his blood THC level exceeding 5.0 ng/mL. Mr. Fraser appealed to the Snohomish County Superior Court, which affirmed the trial court. He then directly appealed to the Washington Supreme Court.
Ruling and Reasoning
On appeal, Mr. Fraser argued that the per se prong of the statute was unconstitutionally vague, not a legitimate exercise of police power, and is “facially unconstitutionally overbroad” because of the lack of reliable correlation between THC level and impairment. The court reviewed the legislative history of the cannabis law, which was created through a voter-approved initiative. Statutes enacted through the initiative process are presumed to be constitutional; the challenging party bears the burden of proving unconstitutionality beyond a reasonable doubt.
Pertaining to police powers, the court agreed with the state that the relevant question was whether a lawmaker could reasonably conclude that the state's roads are safer with the per se THC limit than they would be without the limit. The court said there need not be a link between impairment and the THC blood content limit akin to the blood alcohol limit, provided that there is a reasonable and substantial relationship between the per se THC prong and interests in public safety. Here, the court said that Mr. Fraser's expert evidence gave an incomplete picture as it is undisputed that cannabis use can impair a person's ability to drive. Although the THC blood levels do not correlate the same way as alcohol impairment, THC “levels above 5.0 ng/ML do appear to indicate recent consumption in most people (including chronic users) and recent consumption is linked to impairment” (Fraser, p 290). The court also noted that high THC blood levels can reflect imminent impairment. With this, the court ruled the statute is “reasonably and substantially related to recent consumption, which is related to impairment” (Fraser, p 291). In addition, the court found that the law aims to deter people who have consumed cannabis from driving when they could be impaired, which promotes public safety.
Regarding Mr. Fraser's vagueness argument, the state supreme court said that a statute is not unconstitutionally vague merely because individuals cannot predict the exact point at which their behaviors are prohibited conduct. The court found convincing here that the statute gave people sufficient notice and did not invite an inordinate amount of police discretion in enforcement. The court reiterated the lower court's finding that the THC prong does not authorize arbitrary law enforcement decisions as to whether the statute has been violated, rather the law created a bright line blood level of 5.0 ng/mL to be applied to anyone in similar circumstances.
Finally, the court addressed Mr. Frasers challenge on the grounds that the statue was facially unconstitutional. The court rejected Mr. Fraser's contention, saying that he did not explain why there is no circumstance in which the statute could be applied constitutionally or why the blood limit is “in no way” related to preventing impaired driving. The court ruled that the THC prong is a legitimate exercise of police powers, is not unconstitutionally vague, and is not facially unconstitutional.
Discussion
This case brings up several noteworthy points for psychiatrists and forensic experts. As an initial mater, the Fraser court reviewed the legislative history of the state's cannabis law, including the fact that it was created through a voter initiative. The law not only legalized use of cannabis in the state, but it modified the existing DUI law to reflect concerns of persons driving after having consumed cannabis. The case provided an overview of how courts review the legislative history and intent when interpreting laws. For psychiatrists who participate in the legislative process, it is useful to have an understanding about how laws come to be enacted and how courts interpret their meaning, when questioned.
The Fraser case is also relevant to practicing psychiatrists who may have patients who consume cannabis. Although most clinicians will be familiar with driving under the influence laws with respect to alcohol, they may be less familiar with similar laws on cannabis and diving in their state. As Mr. Fraser and his expert pointed out, there is less scientific information about the impact of cannabis on driving compared with alcohol, and some studies have shown a weak relationship between immediacy of cannabis use and driving impairment. Increases in cannabis blood levels may also vary related to sex, percentage of body fat, and release of THC from fat cells during exercise. In its analysis, the court recognized that cannabis use may affect people differently, but also found convincing that the per se prong can serve to deter people who have recently consumed cannabis from driving a few hours later, when there is a likelihood of impairment.
Familiarity with laws like the statute in the Fraser case permits psychiatrists to provide education on the topic to their patients. Under Washington law, it is important for clinicians to emphasize that one can be convicted for a DUI for cannabis based on blood cannabis level, even if the person does not feel subjectively impaired. In states like Washington, where a broad duty exists to protect third-party victims of foreseeable harm from their patients, it further behooves clinicians to be familiar with these laws and discuss the implications with their patients.
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