Category: Criminal Law

I know when I was a kid – okay, even as a young adult – I did some pretty stupid things. Maybe you didn’t, but a lot of us did. Unfortunately, many of those stupid, immature acts come back to haunt us after we left those things way in the past. On job applications, school applications, license applications, presidential campaigns, the question inevitably comes up: “Have you ever been convicted of a crime?”

For most crimes, the laws of the State of Washington provide a mechanism to have the records of adult criminal convictions expunged or juvenile offense adjudications sealed such that, under the law, it acts as if the crime or offense never occurred. And, under the law, you can answer “No” to the above-question.

For some serious crimes and offenses, the record never goes away and cannot be expunged or sealed. This includes Class A felonies, such as murder, kidnapping first degree, robbery first degree, and so on. This prohibition also applies to most sex offenses.

Depending on the underlying crime or offense, the law imposes a certain amount of time before the motion to expunge or seal may be made. The law requires that a certain amount of crime-free behavior has passed before the expungement or sealing may occur. This may vary from two to ten years, depending on the nature of the underlying adult crime or juvenile offense.

Civil rights such as the right to vote and the right to possess firearms, lost by virtue of a criminal conviction, may be restored under these statutory procedures. Mistakes in the past do not have to prevent you from fully enjoying your constitutional and civil rights in the present or future.

On December 6, 2012, the State of Washington made history. Not just state history. Not just national history. I’m talking world history. Galactic history as far as I know. The people of our state say it’s no longer illegal for an adult to smoke pot. Just as Prohibition of alcohol was a failed social policy, we have now said the same is true for the prohibition of marijuana.

In December of 2009, I wrote an article about reducing costs in the criminal justice system (http://www.hiplawfirm.com/articles/Budget_Crisis_Part_2 ). I advocated ending the failed war on drugs for a fairer, more reasonable and cost effective approach. By passing Initiative 502 on election night, the people of our state took a giant step towards this goal by legalizing marijuana. It’s only the first step in what will be an evolving social policy issue with several twists and turns sure to come. On the part of pot users, some discretion is still in order.

“LEGAL” is qualified – Not everything to do with pot is legal. Like alcohol, you have to be 21. You can’t smoke it in public. If you do, you can receive a civil infraction. Outside of medical marijuana growers, you cannot grow it yourself. If over 21, you can have up to an ounce but nobody can legally sell or give it to you. And you can’t give it to anyone else. That could technically be a “delivery” which is different from “possession” and “delivery” of marijuana is still illegal. During the pre-election debate, anti-502 (but pro-legalization) folks complained that one would be guilty of a felony for passing a joint to their friend. While that is technically true, that has always been the case. And in my years of defense work, I never saw anyone charged with “delivery” of marijuana for passing a doobie. Now that the item being passed along is legal, I think the threat of a felony is beyond realism. But, clearly, a medical marijuana patient cannot legally obtain pot and then share with or “deliver” it to his or her friends. That is still illegal, even after yesterday’s historic change.

DUI marijuana – You cannot be operating a motor vehicle while high on marijuana. The police will still need probable cause to pull you over. But any traffic infraction will do, such as forgetting to signal a lane change or going 15 in a 40 mph zone. But now, just like a .08 limit with blood-alcohol, there is a per se limit of 5 nanograms (ng) of active THC in your blood. Some research has shown impairment in driving skills at those levels. This per se limit does not take into account an individual’s tolerance and is unfair for the medical marijuana patients who smoke frequently to relieve pain and other symptoms of their disease or treatment. But the limit had to be set at some amount. If further research shows that the 5ng level is too low, the legislature could make adjustments. To prevent medical marijuana patients from getting caught in the crossfire, an exemption to the 5ng per se limit should be carved into the law.

Besides potential driving impairment, to be on the safe side from a strictly legal standpoint, I would advise people not to smoke pot in their vehicles. The pungent aroma of some recently smoked Willie Nelson Purple Kush could reasonably lead to an officer’s suspicion and a blood test. A routine traffic stop could turn into a DUI, even if your driving wasn’t impaired.

The Feds – The most obvious legal issue is the conflict with federal law. It is true that the federal response is yet unknown. Will the feds swoop in and start arresting and charging Washington pot smokers with federal charges, even though the people of our state say it is legal here? I doubt it. I think it’s fair to assume the feds will continue to bust major grow operations, interstate transport and distribution, and major dealers acting in the void until licensing, regulation, and tax schemes are in place in a year. Hopefully, the feds will continue to leave simple possession alone and see how our social experiment evolves.

The feds have already demonstrated their acceptance of medical marijuana cooperatives and dispensaries that operate within the law. They aren’t just looking the other way. Several months ago, they came in and busted several Puget Sound area dispensaries that were allegedly distributing beyond the medical marijuana bounds. However, they left alone many more who were operating within Washington law, even though technically still illegal under federal law. On this point, members of the Kent City Council, please take note and revisit your ban. The feds won’t mind. Even less so now that we’ve legalized recreational use for adults.

From a legal standpoint, my advice is simple: Be smart. Don’t smoke it in your vehicle and don’t drive when you’re high. It’s only legal to possess if you’re 21 years old or older. Don’t smoke it in public. If you do, you can be fined.

The law will be evolving over the next several years, through the courts and legislatures of our state and country. We are progressing forward. If you want to get high, just be discrete. If you have any questions about the laws involving marijuana, contact a criminal defense lawyer.

Some people like chicken when they sit down to eat. Others prefer a steak.
Some put the pedal to the metal when they drive. Others will ride their brake.
Some like country music on their I-Pod. Others prefer reggae or rock.
Some like to listen to what other people say. Others just like to talk.
Some like road trips for their family vacations. Others prefer a cruise.
Some like their ganja to relax and mellow out. Others prefer their booze.
Some feared being busted with pot. Others thought the law was a joke.
The hypocrisy is now finally over. Adults can legally toke.

Mark Prothero Attorney at Law
Hanis Irvine Prothero, PLLC