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MARIJUANA: THE LEGAL REALITY - FAQs Part II

What if an Officer Stops a Person Under the Age of 21 and Smells Marijuana? Is the Odor of Marijuana Sufficient Probable Cause Arrest the Minor?

No, the officer must have specific and articulable facts that tend to prove the driver consumed marijuana.

Officers will look for indicators such as a visible bong, baggie or marijuana, marijuana debris on the lips or tongue or physical signs of bloodshot eyes or muscle tremors.

What if an Officer Stops a Vehicle, the Driver and Passengers are all Under the Age of 21, and the Officer Smells Marijuana? May the Officer Arrest the Occupants for Marijuana Possession?

No, absent other facts that connect the driver or passengers to individual marijuana use or possession.

When officers do not have anything to independently connect each individual to illegal activity, no probable cause exists and an arrest or search of the person is invalid.

However, an officer may use other investigatory tools such as questioning the vehicle's occupants regarding marijuana use.

What Impact will the THC Blood Concentration Per Se Limits of 5.00 ng/ml and Zero Tolerance Limits for Persons Under 21 Years Old Have on Driving Under the Influence?

None. The per se THC limits and zero tolerance for minors are additional means for prosecutors to charge impaired drivers under Washington law.

These limits do not alter the probable cause standard to arrest an individual for impaired driving.

Will the Implied Consent Warnings Change to Inform Drivers that if they Submit to the Blood Test and have a THC Blood Concentration of 5.00ng/ml or Over, their License May be Suspended?

Yes, the impaired driving section will distribute new implied consent warnings for blood as a part of the DUI Arrest Report packet.

If an Officer Discovers the Legal Amount of Marijuana During a Vehicle Impound Inventory, What happens to the Marijuana?

If the amount is within the legal limits and there were no persons under the age of 21 in the vehicle, the officer should leave the marijuana in the vehicle.

If the persons were under the are of 21, then the officer should take the marijuana for safekeeping.

What if an Officer Discovers a Legal Amount During a Search Incident to the Arrest of a person?

If the amount is within the legal limits and all persons are over 21 in the vehicle, the officer should ask for the driverís consent to leave the marijuana in the vehicle.

If the driver consents, then the officer should document the driverís consent and leave the marijuana in the vehicle. If the driver does not consent to leaving the marijuana in the car, the officer will take for safekeeping.

If anyone in the car is under the age of 21, the officer will take the marijuana for safekeeping.

What if an Officer Cannot determine Whether the Marijuana is Under the Legal Amount?

The officer can seize the marijuana pursuant to constitutional standards.

Since there is an Affirmative Deense of Consumption of Marijuana within Two Hours After Driving, are there any Precautions Officers Take When Transporting a Driver to a BAC Room or Hospital?

Yes. Officers will not allow the driver to consume liquids within the driverís possession. If the suspect requests a drink of water, the officer will provide the water.

If an Officer Responds to a Collision Scene Involving a Driver Under the Age of 2, and the Officer Smells Marijuana, May the Officer Read Implied Consent Warnings and Arrest the Driver for a Violation of RCW 46.61.503?

No. Violations of RCW 46.61.503 are not excepted from RCW 10.31.100ís requirement that the misdemeanor violation occurred in the officerís presence.

The above was excerpted from a police training manual.

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