NOTICE: SLIP OPINION (not the court’s final written decision)
The opinion that begins on the next page is a slip opinion. Slip opinions are the written opinions that are originally filed by the court. A slip opinion is not necessarily the court’s final written decision. Slip opinions can be changed by subsequent court orders. For example, a court may issue an order making substantive changes to a slip opinion or publishing for precedential purposes a previously “unpublished” opinion. Additionally, nonsubstantive edits (for style, grammar, citation, format, punctuation, etc.) are made before the opinions that have precedential value are published in the official reports of court decisions: the Washington Reports 2d and the Washington Appellate Reports. An opinion in the official reports replaces the slip opinion as the official opinion of the court. The slip opinion that begins on the next page is for a published opinion, and it has since been revised for publication in the printed official reports. The official text of the court’s opinion is found in the advance sheets and the bound volumes of the official reports. Also, an electronic version (intended to mirror the language found in the official reports) of the revised opinion can be found, free of charge, at this website: https://www.lexisnexis.com/clients/wareports. For more information about precedential (published) opinions, nonprecedential (unpublished) opinions, slip opinions, and the official reports, see https://www.courts.wa.gov/opinions and the information that is linked there. FILE For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. THIS OPINION WAS FILED FOR RECORD AT 8 A.M. ON IN CLERK’S OFFICE MAY 12, 2022 SUPREME COURT, STATE OF WASHINGTON MAY 12, 2022 ERIN L. LENNON SUPREME COURT CLERK
IN THE SUPREME COURT OF THE STATE OF WASHINGTON ) STATE OF WASHINGTON, ) No. 98896-0 ) Respondent, ) En Banc v. ) ) DOUGLAS DONALD FRASER III, ) Filed: May 12, 2022 ) Petitioner. )
WHITENER, J.—In 2012, Washington voters approved Initiative 502, which
legalized cannabis 1 for recreational use, as well as created a regulatory system for
cannabis. In doing so, the initiative modified the driving under the influence (DUI)
law and created a prong under which a person can be convicted of DUI depending
on the level of tetrahydrocannabinol (THC) found in one’s blood. Under RCW
46.61.502(1)(b) a person is per se guilty of DUI when one drives a vehicle and “[t]he
person has, within two hours after driving, a THC concentration of 5.00 or higher
1 We recognize that using the term “marijuana” instead of “cannabis” is rooted in racism. See, e.g., Michael Vitiello, Marijuana Legalization, Racial Disparity, and the Hope for Reform, 23 LEWIS & CLARK L. REV. 789, 797-98 (2019) (“Advocates of criminalizing marijuana often made overtly racist appeals.”). The transition from using the scientific “cannabis” to “marijuana” or “marihuana” in the early 20th century stems from anti-Mexican, and other racist and anti- immigrant, sentiments and efforts to demonize cannabis. Id. at 797-99. Our legislature has recently acknowledged this discriminatory origin and has enacted a law to replace “marijuana” with “cannabis” throughout the Revised Code of Washington with various effective dates depending on the statute. See LAWS OF 2022, ch. 16, § 1. Accordingly, unless quoting language or referring to the text of a statute, we use “cannabis.” For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. State v. Fraser, No. 98896-0
[nanograms per milliliter (ng/mL)] as shown by analysis of the person’s blood”
(hereinafter the “per se THC prong”).
Douglas Fraser III was convicted of DUI under the per se THC prong for
driving with a THC blood level of 9.4 +/- 2.5 ng/mL within two hours of driving.
On appeal, Fraser challenges the constitutionality of this prong of the DUI statute,
claiming that the statute is not a legitimate exercise of the legislature’s police power,
that it is unconstitutionally vague, and that it is “facially unconstitutionally
overbroad because no scientific evidence supports the conclusion that there is a per-
se concentration of active THC at which all or most drivers would be impaired.” Br.
of Pet’r at 1.
We hold that this statute is constitutional and that it is a legitimate exercise of
police powers as the limit is rationally and substantially related to highway safety.
The research shows that the minimum 5.00 ng/mL limit appears to be related to
recent cannabis consumption for most people (including chronic users), which is
linked to impaired driving and highway safety, although there is no similar scientific
correlation to impairment akin to the minimum 0.08 percent blood alcohol
concentration (BAC) limit for alcohol. Further, there is a reasonable assumption that
having the limit will deter people who have recently consumed cannabis from
driving, thus reasonably and substantially furthering a legitimate state interest.
2 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. State v. Fraser, No. 98896-0
We hold that this statute is not vague because this specific 5.00 ng/mL limit
does not lead to arbitrary enforcement, but rather it avoids arbitrary, erratic, and
discriminatory enforcement.
Finally, we hold that this statute is not facially unconstitutional because there
exists a circumstance under which the limit can be constitutionally applied even
under Fraser’s allegations of arbitrariness. Fraser’s own expert testified that some
people are impaired at a THC blood level of 5.00 ng/mL. Therefore, when someone
who is impaired at 5.00 ng/mL consumes cannabis and drives, this limit would not
be unconstitutionally arbitrary in that circumstance. Accordingly, we affirm Fraser’s
conviction.
FACTS AND PROCEDURAL HISTORY
On the evening of July 11, 2017, Washington State Patrol Trooper Victor
Pendt pulled Fraser over for speeding, driving in the high occupancy vehicle lane
while alone, erratically changing lanes, cutting off other drivers, and driving
aggressively. Fraser was wearing an employee badge for a local cannabis dispensary.
Fraser removed it after he saw Trooper Pendt notice it.
Trooper Pendt did not observe any odor of intoxicants but observed Fraser
was sweating slightly, was exhibiting full body tremors, and had very dark gray
circles under his eyes. Fraser provided his identification, registration, and insurance
and apologized for his aggressive driving, saying he was in a rush to pick up his son.
3 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. State v. Fraser, No. 98896-0
Trooper Pendt asked Fraser to step out of the vehicle. Trooper Pendt asked to
see Fraser’s tongue and observed raised taste buds on the back of his tongue. Trooper
Pendt testified this is consistent with someone who has recently smoked some
substance. When asked if he had smoked anything other than cannabis, Fraser
replied that he had not. Trooper Pendt testified that Fraser “admitted to smoking
marijuana about half a day before the stop.” 1 Clerk’s Papers (CP) at 19-20. Fraser
testified that it was the day prior, before he went to sleep, and was “at least 20 hours”
before the traffic stop. Id. at 48. Fraser also testified that he did not feel impaired at
the time of the stop.
During the stop, Trooper Pendt asked if Fraser would perform voluntary
standardized field sobriety tests (SFSTs). Fraser indicated that he had physical
injuries and was unsure if he could perform the tests. Trooper Pendt offered Fraser
nonphysical SFSTs, and Fraser agreed to do those. During the tests, Trooper Pendt
observed that Fraser’s eyelids exhibited tremors and that Fraser was unable to
properly estimate time, both of which are consistent with cannabis use per Trooper
Pendt’s training. Fraser also did not perform well on the “finger-to-nose test” in
which the driver tries to touch the tip of their finger to the tip of their nose while
being told which hand to use. Id. at 17-18. Based on the totality of circumstances,
Trooper Pendt arrested Fraser for DUI. Fraser later consented to a blood draw within
4 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. State v. Fraser, No. 98896-0
two hours of driving. The test results showed that Fraser had a THC blood
concentration of 9.4 +/- 2.5 ng/mL.
The State charged Fraser with DUI under the per se THC prong. Fraser moved
to declare the per se THC prong unconstitutional, claiming it was unconstitutionally
vague and was not a valid exercise of the State’s police power. The court held two
hearings on this issue. During the first hearing, Fraser presented the expert testimony
of Dr. Sanil Aggarwal and multiple exhibits (articles and studies), which Fraser
contends all indicate there is “no scientific support for the proposition that all
drivers’ ability to operate their vehicle is impaired if they have an active THC blood
content of 5 ng/ml.” Br. of Pet’r at 6.
Dr. Aggarwal testified to his extensive background and research into cannabis
from a clinical and public health policy lens. Although he has not personally
conducted any studies on cannabis impairment and driving, he testified that he has
attended seminars by Dr. Marilyn Huestis, a leading researcher on cannabis use and
driving, and that he is familiar with the literature. Dr. Aggarwal testified that around
2007-2008, experts in the field, including Dr. Huestis, indicated that coming up with
a number for THC that was akin to the scientifically accepted 0.08 BAC level would
be difficult and that experts were unsure if there was a comparable number. He
testified that “most people already felt that even trying to find a number was going
the wrong direction and that impairment should be looked at functionally,” such as
5 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. State v. Fraser, No. 98896-0
reaction time, balance, and ability to perform tasks. 1 CP at 119. Some researchers
believed that because of the variable issues with pharmacokinetics and cannabis,
such as absorption rate, chronic versus occasional use, and body fat content, that
there could not be a THC number akin to the 0.08 BAC to show impairment. Other
researchers, recognizing that concrete numbers are of policy interest, came up with
the 5.00 ng/mL number.
Dr. Aggarwal testified as to the differences between alcohol and cannabis in
terms of how the body processes the substances. Where alcohol tends to follow a
specific curve, cannabis has a different reaction within the body where the THC level
initially drops but can then stay stored within fat cells in the body. Depending on the
degree of cannabis use and one’s body fat percentage, THC levels can vary person
to person. Therefore, the level of THC in one’s blood may be an indicator of how
recently one used cannabis, but it is not correlated to cognitive impairment and motor
performance. In addition, because of the medicinal properties of cannabis, its use
can improve function when used to treat some symptoms. Dr. Aggarwal then went
through the exhibits that Fraser presented, which will be discussed in more detail in
the analysis section.
Dr. Aggarwal testified that he could not form an opinion on Fraser’s level of
impairment based on the results of the blood test performed. In addition, he testified
that a person’s THC blood level could not be determined without access to a
6 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. State v. Fraser, No. 98896-0
laboratory because of the variability in the ways cannabis can be consumed and how
it reacts within the body. He concluded that a per se THC cutoff is not efficacious in
preventing impaired driving because of the potential for false positives and false
negatives in terms of impairment. Dr. Aggarwal recommended alternative tests, such
as phone applications, that test levels of impairment from multiple sources (such as
sleep deprivation, alcohol, and cannabis) that mimic tasks needed for driving.
On cross-examination Dr. Aggarwal conceded that although the 5.00 ng/mL
figure cannot be generalized to the entire population, individual people could be
affected by cannabis at that level and their driving could be impaired at that level.
At the conclusion of testimony, the trial court denied the motion to declare the
per se THC prong unconstitutional and held that the per se THC prong is
constitutional because it is a legitimate exercise of police power and it is not vague.
In doing so, the court made detailed findings from many of the articles and studies
Fraser provided. See generally 3 CP at 413-17 (discussing trial court’s findings of
fact as to the expert’s testimony and exhibits). Although many of the articles
concluded that there is not a standard THC blood level that indicates impairment
(akin to the 0.08 limit for alcohol), the articles also concluded that impairment level
is high after consuming cannabis and that those levels can be variable. Some studies
concluded this means there should be no per se cutoff limit (instead focusing on
learning and researching biological markers), while other studies indicated this
7 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. State v. Fraser, No. 98896-0
variability should lead to caution and conservative policies. In addition, in some
studies there was concern that because of the rapid decline in THC levels, the per se
cutoff could fail to detect impaired drivers below the limit or could flag chronic or
heavy users who may not be impaired above the limit.
As to vagueness, the trial court concluded the statute creates a bright line rule
that protects against arbitrary enforcement whereby a person who consumes
cannabis is on notice if they drive that they may be above the legal limit, though they
may not know their exact THC blood levels. The court reasoned that “Mr. Fraser,
who worked at a dispensary and was a medical marijuana patient, consumed
marijuana, showed signs of impairment and drove a motor vehicle. He accepted the
risk that he may be above the per se limit.” Id. at 418. The trial court also concluded
this was a legitimate exercise of police power because “the per se limit is rationally
tied to the legitimate state interest of deterring and/or preventing impaired driving.”
Id. at 419.
Fraser agreed to a stipulated facts bench trial, and the trial court found him
guilty of DUI on the basis that his THC blood level was above 5.00 ng/mL. Fraser
appealed to the Snohomish County Superior Court, which adopted the findings of
fact and conclusions of law of the trial court and affirmed his conviction. Fraser
appealed directly to this court, arguing that the per se THC prong is not a legitimate
exercise of police power, is unconstitutionally vague, and is “facially
8 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. State v. Fraser, No. 98896-0
unconstitutionally overbroad” because of the science surrounding THC levels and
impairment. Mot. for Discr. Review at 1. This court granted review and retained the
case.2
ANALYSIS
Initiatives and Police Powers
We review constitutional questions de novo. City of Redmond v. Moore, 151
Wn.2d 664, 668, 91 P.3d 875 (2004).
“An exercise of the initiative power is an exercise of the reserved power of
the people to legislate.” Amalg. Transit Union Local 587 v. State, 142 Wn.2d 183,
204, 11 P.3d 762 (2000). “In approving an initiative measure, the people exercise
the same power of sovereignty as the Legislature does when enacting a statute.” Id.
As indicated above, in 2012, Washington voters approved Initiative 502,
which legalized cannabis.3 The initiative also modified RCW 46.61.502 to add the
per se THC prong. Prior to this modification, one could be found guilty of DUI of
marijuana under former RCW 46.61.502(1)(b) (2011) if a person drove a vehicle
“[w]hile the person is under the influence of or affected by intoxicating liquor or any
drug.”
2 The Washington Association of Criminal Defense Lawyers and the Washington Foundation for Criminal Justice have filed amicus briefs in support of Fraser. 3 There is much discussion in the parties’ briefs and the amicus briefs about the background of Initiative 502 and the politics surrounding the initiative. This is not pertinent to the determination of whether this is a legitimate exercise of the lawmakers’ police power and is therefore not addressed.
9 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. State v. Fraser, No. 98896-0
Statutes enacted by the people through the initiative process are presumed to
be constitutional, and the party challenging the constitutionality of the statute bears
the burden of proving unconstitutionality beyond a reasonable doubt. Amalg.
Transit, 142 Wn.2d at 205. A party has met that burden when “argument and
research show that there is no reasonable doubt that the statute violates the
constitution.” Id.
Under article I, section 1 of the Washington Constitution, “All political power
is inherent in the people, and governments derive their just powers from the consent
of the governed, and are established to protect and maintain individual rights.” We
have interpreted this to mean that “the State Legislature may prescribe laws to
promote the health, peace, safety, and general welfare of the people of Washington.”
State v. Brayman, 110 Wn.2d 183, 192-93, 751 P.2d 294 (1988). “‘[B]road
discretion is thus vested in the legislature to determine what the public interest
demands under particular circumstances, and what measures are necessary to secure
and protect the same.’” Id. at 193 (alteration in original) (quoting Reesman v. State,
74 Wn.2d 646, 650, 445 P.2d 1004 (1968)). The legislature properly exercises its
police power if the statute “(1) tends to correct some evil or promote some interest
of the State, and (2) bears a reasonable and substantial relationship to accomplishing
its purpose.” Id. “Unless the measures adopted by the legislature in given
circumstances are palpably unreasonable and arbitrary so as to needlessly invade
10 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. State v. Fraser, No. 98896-0
property or personal rights as protected by the constitution, the legislative judgment
will prevail.” Reesman, 74 Wn.2d at 650.
When determining whether a statute is constitutional, “if a court can
reasonably conceive of a state of facts to exist which would justify the legislation,
those facts will be presumed to exist and the statute will be presumed to have been
passed with reference to those facts.” Brayman, 110 Wn.2d at 193. Further, “where
scientific opinions conflict on a particular point, the Legislature is free to adopt the
opinion it chooses, and the court will not substitute its judgment for that of the
Legislature.” Id.
Initially the parties disagreed as to the actual question before the court as it
pertains to police powers. Fraser contends that the question is whether, under the
current science regarding THC blood levels and impairment, a lawmaker could
reasonably conclude that a THC blood concentration of 5.00 ng/mL indicates that
someone’s ability to drive is presumptively impaired. Reply Br. of Pet’r at 2.
Whereas, the State argues that the question is “‘Could a lawmaker reasonably
conclude that Washington highways are safer with a per-se THC limit of 5 than they
would be without that limit?’” Br. of Resp’t at 10. We agree with the State. Under
the two-part police powers test, we look to whether the statute tends to correct some
evil or promote some interest of the State and whether it bears a reasonable and
substantial relationship to accomplishing that purpose. Therefore, it is sufficient to
11 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. State v. Fraser, No. 98896-0
establish that the per se THC limit of 5.00 ng/mL is reasonably and substantially
related to promoting the public’s interest in safety on Washington’s highways.
It is worth noting that in Brayman, defendants challenged the amendments to
the DUI statute in which the legislature modified the per se alcohol prong that
previously required analysis of the percentage of alcohol in one’s blood to an
analysis of the amount of alcohol in one’s breath. 110 Wn.2d at 186. The defendants
argued that the amendment to measuring breath alcohol instead of blood alcohol was
in excess of the legislature’s police powers because “breath alcohol content—is too
indirectly related to impairment to justify the statute.” Id. at 194. This court upheld
the challenged statute as a legitimate exercise of police powers, concluding that the
State presented sufficient evidence that breath alcohol is linked to impairment and
that “[w]hile the record may establish that breath is a less direct measure of blood
alcohol levels, it does not establish a lack of a reasonable and substantial relationship
between breath alcohol and impairment.” Id. at 195. However, this does not mean
that there must be a link between impairment and the THC blood content limit akin
to the 0.08 BAC limit as long as there is a reasonable and substantial relationship
between the per se THC prong and the State’s public safety interests.
12 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. State v. Fraser, No. 98896-0
A. The per se 5.00 ng/mL THC limit is rationally and substantially related to preventing impaired driving and promoting highway safety Fraser’s main argument that this statute is not a valid exercise of police powers
is that “[b]ecause the 5 ng/mL level lacks any scientific support, and because the
consensus in the scientific community is that no per se limit can ever be identified,
RCW 46.61.502(1)(b) does not reasonably tend to correct any evil or promote a
public interest.” Br. of Pet’r at 19-20 (boldface omitted). Fraser’s general
characterization of the scientific evidence gives an incomplete picture. Also, his
contention that the statute does not reasonably correct any evil or promote public
interest is unpersuasive.
There is no dispute in this case that cannabis use can impair one’s driving.
Fraser provides multiple studies and an expert witness that confirm this fact. In
addition, we agree with Fraser’s contention that the researchers tend to agree that
there is no one THC blood level that indicates impairment that is generalizable to
everyone akin to the 0.08 BAC limit for alcohol because of many variable factors
depending on route of consumption and body pharmacokinetics. See, e.g., 3 CP at
490, (“It is difficult to establish a relationship between a person’s THC blood or
plasma concentration and performance impairing effects.”), 513 (“‘[t]here is no one
blood or oral fluid concentration that can differentiate impaired and not impaired’”).
In addition, many researchers, including Dr. Huestis and the former Michigan
13 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. State v. Fraser, No. 98896-0
Impaired Driving Safety Commission, are not in favor of a per se limit because of
the poor correlation between THC levels and impairment. See id. at 469 (report
from Michigan’s Impaired Driving Safety Commission concluding that there is
a poor correlation between THC blood content and impairment, and
recommending against a per se limit), 508 (AAA Foundation for Traffic Safety
concluding “a quantitative threshold for per se laws for THC following cannabis
use cannot be scientifically supported” (boldface omitted)), 529 (Dr. Huestis
and Michael Smith concluding, “Currently, science does not support the
development of cannabinoid limits per se . . . in motor vehicles drivers because of
the many factors influencing concentration-effect relationships.”).
However, Fraser and both amicus briefs appear to gloss over important
context surrounding those decisions and completely ignore that while THC blood
levels do not correlate to impairment in the same way that the 0.08 BAC correlates
to alcohol impairment, THC levels above 5.00 ng/mL do appear to indicate recent
consumption in most people (including chronic users), and recent consumption is
linked to impairment. Detecting and preventing impaired driving and cultivating
highway safety is the exact evil that this law aims to prevent and the exact public
safety the law seeks to promote.
The literature shows that often THC levels drop below 5.00 ng/mL within 3
hours of use, and for occasional users they are no longer detectable after 8 to 12
14 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. State v. Fraser, No. 98896-0
hours. Id. at 490. The National Highway Traffic Safety Administration concludes
that people typically feel a high for 2 hours, with most effects returning to baseline
within 3 to 5 hours, “although some investigators have demonstrated residual effects
in specific behaviors up to 24 hours, such as complex divided attention tasks.” Id. at
491. The Michigan Impaired Driving Safety Commission found that “[m]ost
behavioral and physiological effects of Δ9-THC return to baseline levels within 3-6
hours after exposure” but that “[c]hronic cannabis use may also lead to impairment
in driving-related tasks, even after cessation.” Id. at 461. Cited studies also appear
to conclude that even for chronic users, THC levels tend to fall below 5.00 ng/mL
within 24 hours. Importantly, Dr. Huestis indicates that chronic users can show
psychomotor impairment for three weeks after the last dose. Id. at 513.
In addition, high THC blood levels can be indicative of imminent impairment.
The Michigan Impaired Driving Safety Commission cites to a study in which
subjects’ driving performance did not show impairment at the 30-minute mark after
consumption of cannabis (when THC levels were highest), but it was “significantly
worse” 80 minutes after smoking (when the THC levels had dropped). Id. at 466. It
is within the interest of public safety to prevent drivers with high THC levels who
are likely to imminently become impaired from continuing to drive after consuming
cannabis.
Nonetheless Fraser argues,
15 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. State v. Fraser, No. 98896-0
the Legislature has adopted a purely arbitrary standard as proof that an individual has engaged in behavior that is harmful to society. If the scientific community is unanimous that it is impossible to identify a blood THC concentration at which it can be presumed an individual’s ability to drive is impaired, then adoption of any blood THC concentration will never “reasonably tend to correct some evil or promote some public interest” since there is no link between that standard and the likelihood the evil had been committed.
Reply Br. of Pet’r at 5 (quoting City of Seattle v. Larkin, 10 Wn. App. 205, 211-12,
516 P.2d 1083 (1973)).
While there may not be a universal THC blood level that is akin to the 0.08
BAC for alcohol impairment, the studies do show that THC levels above 5.00 ng/mL
are indicative of recent consumption in most users, recent consumption generally
leads to impairment as THC levels lower, and for chronic users there can be chronic
impairment that lasts for weeks. Fraser’s own expert testified that some people are
impaired at the 5.00 ng/mL THC level. 1 CP at 181. Although this limit may not be
perfect in terms of identifying degree of impairment for all individuals, it is
reasonably and substantially related to recent consumption, which is related to
impairment. 4
4 Because cannabis is still illegal at the federal level, scientific research into the relationship between cannabis consumption and impairment has been limited. For decades, researchers have been severely constrained in their ability to obtain federal approval to legally access pharmaceutical-grade cannabis, specifically different varieties and formulations akin to those found in cannabis dispensaries, to use in research. See, e.g., Britt E. Erickson, Cannabis Research Stalled by Federal Inaction, CHEMICAL & ENGINEERING NEWS (June 29, 2020), https://cen.acs.org/biological-chemistry/natural-products/Cannabis-research-stalled-federal-
16 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. State v. Fraser, No. 98896-0
Further, we agree with the State and the trial court that in addition to
correcting some evil by punishing impaired drivers, the laws aim to deter people
who have consumed cannabis from driving when there is a possibility they could be
impaired, thus promoting some public interest of highway safety. See Br. of Resp’t
at 20-22; 3 CP at 421. Under Brayman, if we can reasonably conceive of a state of
facts that would justify the legislation, we presume such facts exist and the law was
passed in reference to those facts. Here, we find it reasonable to conceive of facts
that people who have recently consumed cannabis will be deterred from driving
because of the risk of conviction under a per se THC prong and that the highways
will be safer because of it. Therefore, the court must presume such facts did exist
when this law was enacted and that it was passed in reference to them.
inaction/98/i25 [https://perma.cc/7AKF-4TB3]. In 2021, the United States Drug Enforcement Administration (DEA) implemented new regulations aimed at approving more cannabis growing facilities, which should make it easier for researchers to access higher-quality and more varied research product. Meredith Wadman, United States Set To Allow More Facilities To Produce Marijuana for Research, SCIENCE (May 17, 2021), https://www.science.org/content/article/us-set- allow-more-facilities-produce-marijuana-research [https://perma.cc/E3BQ-KA4Y]; DEA Continues to Prioritize Efforts to Expand Access to Marijuana for Research in the United States, U.S. DRUG ENFORCEMENT ADMIN. (May 14, 2021), https://www.dea.gov/stories/2021/2021- 05/2021-05-14/dea-continues-prioritize-efforts-expand-access-marijuana-research [https://perma.cc/9YES-4LF4]. Therefore, more accurate data on marijuana impairment may emerge that may support that we revisit the issue presented. E.g., State v. O’Dell, 183 Wn.2d 680, 695, 358 P.3d 359 (2015) (court may adapt legal frameworks by considering “advances in the scientific literature”). However, we must remember “[i]t is not the province of this court to second- guess the wisdom of the [lawmakers’] policy judgment so long as the [lawmakers] do[] not offend constitutional precepts.” Davis v. Dep’t of Licensing, 137 Wn.2d 957, 976 n.12, 977 P.2d 554 (1999).
17 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. State v. Fraser, No. 98896-0
The State persuasively cites to out-of-state cases in which other states have
found that per se limits on THC blood levels or cannabis metabolites are rationally
related to the State’s interest in highway safety, although some also had the
additional State’s interest in deterring illicit drug use (with cannabis use being
illegal). See Br. of Resp’t at 22-24 (collecting cases). For example, in Williams v.
State, the Supreme Court of Nevada upheld a law that criminalized driving with “two
nanograms per milliliter of marijuana or five nanograms per milliliter of marijuana
metabolite” as “rationally related to the State’s interest in highway safety and in
deterring illicit drug use.” 118 Nev. 536, 540-41, 543, 50 P.3d 1116 (2002).
Similarly, in Love v. State, the Supreme Court of Georgia held that their statute that
criminalized driving with any amount of “marijuana metabolites” within one’s
bodily fluids was rationally related to the State’s purpose of protecting the public.
271 Ga. 398, 401-02, 517 S.E.2d 53 (1999). The court ultimately found the statute
unconstitutional on equal protection grounds as it treated medical cannabis users
differently from illegal cannabis users and held that distinction to be arbitrary. Id. at
402.5 We too find the per se limit on THC levels to be rationally and substantially
related to highway safety. Accordingly, we hold that Fraser has not met his burden
5 Interestingly, at the trial court, Fraser’s counsel argued in his reply brief that “[t]he State can unquestionably ban any amount of drug while driving and provide no set per se standard of impairment tied to drug limits. When it sets drug limits though, those limits must be rationally related to impairment, not the legitimate state goal.” 3 CP at 406. It is unclear why a ban on any amount could be rationally related to the goal of safety, but setting a limit must be tied only to impairment and not to the State’s public safety interests.
18 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. State v. Fraser, No. 98896-0
to prove unconstitutionality beyond a reasonable doubt. See Amalg. Transit, 142
Wn.2d at 205.
B. There is no statutory right to drive and consume cannabis
Fraser also contends that there is “a statutory right to consume marijuana and
drive so long as the individual does not consume so much marijuana that his or her
ability to drive is affected or impaired.” Br. of Pet’r at 11 (underlining omitted).
Fraser cites no authority for this proposition nor the proposition that because
something is legal under a statute that it becomes a statutory right. Instead, he relies
on two Court of Appeals opinions in which the Court of Appeals indicates that while
it is not illegal to drink alcohol and drive, it is illegal to drink alcohol and drive when
the alcohol affects driving. Id. at 12-13 (citing State v. Gillenwater, 96 Wn. App.
667, 669, 980 P.2d 318 (1999); State v. Melcher, 33 Wn. App. 357, 363, 655 P.2d
1169 (1982)). As the State observes, both of these cited cases rely on State v. Franco
in which we opined that “although one can legally drink and drive, our [driving while
intoxicated] law makes it perfectly clear that the two activities cannot be mixed to
the extent that the drinking affects the driving, or the driver has a 0.10 percent of
alcohol in his blood.” 96 Wn.2d 816, 825, 639 P.2d 1320 (1982) (emphasis added)
(citation omitted), abrogated on other grounds by State v. Sandholm, 184 Wn.2d
726, 364 P.3d 87 (2015). Therefore, while one can legally drink and drive, one can
be found guilty of DUI when their driving is affected or their BAC is above the legal
19 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. State v. Fraser, No. 98896-0
limit. And if someone has a BAC above the legal limit, they are guilty of DUI even
if their driving is not impaired.
The same is true for consumption of cannabis and driving. As the State
indicates in its brief, although people are legally allowed to consume cannabis and
drive, under the statute at issue they cannot consume cannabis and then drive if their
driving is affected or if their THC blood levels are above 5.00 ng/mL. Therefore, the
State correctly observes that “[t]here is no ‘statutory right’ to do something that the
statute expressly forbids.” Br. of Resp’t at 9. And the DUI statute forbids driving a
vehicle when one has a THC blood level over 5.00 ng/mL within two hours of
driving.
Furthermore, Washington courts have repeatedly referred to driving as a
privilege and not a right. See, e.g., Cannon v. Dep’t of Licensing, 147 Wn.2d 41, 50
P.3d 627 (2002) (referring to “driving privileges” throughout); see also RCW
46.20.308 (detailing revocation and denial of driving privileges procedures for
refusing an implied consent test). Where driving itself is a privilege, there is certainly
no right to drive after consuming cannabis just because both activities are legal under
certain circumstances. Accordingly, the per se THC prong is not “needlessly
invad[ing] property or personal rights as protected by the constitution,” as there is
no right to drive and no right to consume cannabis. Reesman, 74 Wn.2d at 650. Both
20 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. State v. Fraser, No. 98896-0
are regulated privileges. Again, Fraser has not demonstrated unconstitutionality
beyond a reasonable doubt.
Vagueness Fraser also alleges that the per se THC prong is unconstitutionally vague. “A
vagueness challenge seeks to vindicate two principles of due process: the need to
define prohibited conduct with sufficient specificity to put citizens on notice of what
conduct they must avoid and the need to prevent arbitrary and discriminatory law
enforcement.” City of Tacoma v. Luvene, 118 Wn.2d 826, 844, 827 P.2d 1374
(1992).
Under the due process clause of the Fourteenth Amendment [to the United States Constitution], a statute is void for vagueness if either: (1) the statute “does not define the criminal offense with sufficient definiteness that ordinary people can understand what conduct is proscribed”; or (2) the statute “does not provide ascertainable standards of guilt to protect against arbitrary enforcement”.
State v. Halstien, 122 Wn.2d 109, 117, 857 P.2d 270 (1993) (quoting City of Spokane
v. Douglass, 115 Wn.2d 171, 178, 795 P.2d 693 (1990)). “Impossible standards of
specificity are not required,” nor is “‘mathematical certainty.’” Luvene, 118 Wn.2d
at 844; City of Seattle v. Eze, 111 Wn.2d 22, 27, 759 P.2d 366 (1988) (quoting
Grayned v. Rockford, 408 U.S. 104, 110, 92 S. Ct. 2294, 33 L. Ed. 2d 222 (1972)).
“[A] statute is not unconstitutionally vague merely because a person cannot predict
with complete certainty the exact point at which his actions would be classified as
prohibited conduct.” Eze, 111 Wn.2d at 27.
21 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. State v. Fraser, No. 98896-0
If a statute implicates First Amendment rights, then a defendant may bring a
facial vagueness challenge. Halstien, 122 Wn.2d at 117. If, such as here, the statute
does not implicate First Amendment rights, the statute “must be evaluated in light
of the particular facts of each case.” Id.
Fraser appears to be challenging only the second prong of the vagueness test
and, in doing so, he appears to be reiterating his police powers argument under a
different name. 6 He argues,
The scientific consensus is that it is impossible to set any standard at which it can be accurately and scientifically established that a driver will be impaired by marijuana consumption. The selection of any such per se standard is the selection of a purely arbitrary standard. RCW 46.61.502(1)(b) “does not provide ascertainable standards of guilt to protect against arbitrary enforcement” because the standard of guilt in the statute has no relation to any particular driver’s ability to operate his or her vehicle after consuming marijuana.
Br. of Pet’r at 22-23. Fraser thus challenges the per se THC prong’s limit as arbitrary
when the second prong of the vagueness doctrine examines whether the enforcement
of the law is arbitrary.
“In addition to the requirement of fair notice, the due process clause requires
that a penal statute provide adequate standards to protect against arbitrary, erratic,
and discriminatory enforcement.” Douglass, 115 Wn.2d at 180. “This forbids
6 The State observes that at the trial court, Fraser claimed that the statute is vague because a person cannot know their specific THC blood levels prior to driving. Br. of Resp’t at 25. Because Fraser does not argue that reasoning in his briefing to this court, we do not address that argument.
22 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. State v. Fraser, No. 98896-0
‘criminal statutes that contain no standards and allow police officers, judge, and jury
to subjectively decide what conduct the statute proscribes ... in any given case.’” Am.
Dog Owners Ass’n v. City of Yakima, 113 Wn.2d 213, 216, 777 P.2d 1046 (1989)
(alteration in original) (quoting State v. Worrell, 111 Wn.2d 537, 544, 761 P.2d 56
(1988)).
To determine whether a penal statute provides adequate standards for
enforcement, the court looks to whether the statute prohibits conduct through
“‘inherently subjective terms.’” Douglass, 115 Wn.2d at 181 (quoting State v.
Maciolek, 101 Wn.2d 259, 267, 676 P.2d 996 (1984)). A statute is not necessarily
vague just because it allows for a subjective evaluation from an officer but is
unconstitutional “only if it invites an inordinate amount of police discretion.” Id.
RCW 46.61.502 reads,
(1) A person is guilty of driving while under the influence of intoxicating liquor, marijuana, or any drug if the person drives a vehicle within this state: …. (b) The person has, within two hours after driving, a THC concentration of 5.00 or higher as shown by analysis of the person’s blood. Accordingly, a person violates this statute if they drive a vehicle and have a THC
blood level of 5.00 ng/mL or higher. No aspect of the per se THC prong is subjective.
Whether Fraser drove a vehicle or had the requisite level of THC in his blood is not
23 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. State v. Fraser, No. 98896-0
a discretionary decision from a criminal justice actor deciding whether his conduct
meets a subjective statutory standard.
The trial court correctly concluded that the per se THC prong “does not allow
for arbitrary law enforcement decisions as to whether the statute has been violated.
To the contrary, it creates a bright line.” 3 CP at 418. This statute creates an
objective, bright line rule that anyone who is above a THC blood level of 5.00 ng/mL
while driving can be charged under this prong. This does not lead to arbitrary
enforcement based on a subjective interpretation of the conduct in relation to the
statute at issue. Accordingly, this statute is not unconstitutionally vague.
Facial Unconstitutionality
“[A] successful facial challenge is one where no set of circumstances exists in
which the statute, as currently written, can be constitutionally applied.” Moore, 151
Wn.2d at 669. The remedy for facial unconstitutionality “is to render the statute
totally inoperative.” Id.
Fraser argues that the per se THC prong is facially unconstitutional because it
“is scientifically demonstrably arbitrary and unrelated to the question of whether any
particular driver was driving while impaired by marijuana consumption.” Br. of Pet’r
at 23. He provides little further explanation for why this means there is no set of
circumstances in which this statute could be applied constitutionally or why a limit
on THC blood levels is “in no way related” to preventing impaired driving. Id.
24 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. State v. Fraser, No. 98896-0
Instead, as the State observes, he again appears to be rehashing his police powers
argument under a different name. Br. of Resp’t at 28.
Fraser’s argument is premised on this statute being in excess of the police
powers and, therefore, unconstitutional. However, as concluded above, the per se
THC prong is a legitimate exercise of police powers. Fraser’s own expert testified
that some people are impaired at 5.00 ng/mL. Therefore, even assuming the truth of
Fraser’s own contentions about the arbitrariness of the standard, there exists the
circumstances in which this statute can be constitutionally applied under his
framework: when someone who has a THC blood level of 5.00 ng/mL is impaired
by cannabis and drives. Accordingly, we hold that this statute is not facially
unconstitutional.
CONCLUSION
We affirm the conviction. We hold that the per se THC prong is a legitimate
exercise of the lawmakers’ police powers, is not unconstitutionally vague, and is not
facially unconstitutional.
25 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. State v. Fraser, No. 98896-0
WE CONCUR.