INITIATIVE 502
To the Legislature
Chapter 3, Laws of 2013
Regular Session
Marijuana
EFFECTIVE DATE: December 6, 2012
Approved by the
People of the State of Washington
in the General Election on
November 6, 2012
ORIGINALLY FILED
July 8, 2011
Secretary of State
1AN ACT Relating to marijuana; amending RCW 69.50.101, 69.50.401,
269.50.4013, 69.50.412, 69.50.4121, 69.50.500, 46.20.308, 46.61.502,
346.61.504, 46.61.50571, and 46.61.506; reenacting and amending RCW
469.50.505, 46.20.3101, and 46.61.503; adding a new section to chapter
546.04 RCW; adding new sections to chapter 69.50 RCW; creating new
6sections; and prescribing penalties.
7BE IT ENACTED BY THE PEOPLE OF THE STATE OF WASHINGTON:
8PART I
9INTENT
10NEW SECTION. Sec. 1. The people intend to stop treating adult
11marijuana use as a crime and try a new approach that:
12(1) Allows law enforcement resources to be focused on violent and
13property crimes;
14(2) Generates new state and local tax revenue for education, health
15care, research, and substance abuse prevention; and
16(3) Takes marijuana out of the hands of illegal drug organizations
17and brings it under a tightly regulated, state-licensed system similar
18to that for controlling hard alcohol.
1This measure authorizes the state liquor control board to regulate
2and tax marijuana for persons twenty-one years of age and older, and
3add a new threshold for driving under the influence of marijuana.
4PART II
5DEFINITIONS
6Sec. 2. RCW 69.50.101 and 2010 c 177 s 1 are each amended to read
7as follows:
8Unless the context clearly requires otherwise, definitions of terms
9shall be as indicated where used in this chapter:
10(a) "Administer" means to apply a controlled substance, whether by
11injection, inhalation, ingestion, or any other means, directly to the
12body of a patient or research subject by:
13(1) a practitioner authorized to prescribe (or, by the
14practitioner's authorized agent); or
15(2) the patient or research subject at the direction and in the
16presence of the practitioner.
17(b) "Agent" means an authorized person who acts on behalf of or at
18the direction of a manufacturer, distributor, or dispenser. It does
19not include a common or contract carrier, public warehouseperson, or
20employee of the carrier or warehouseperson.
21(c) "Board" means the state board of pharmacy.
22(d) "Controlled substance" means a drug, substance, or immediate
23precursor included in Schedules I through V as set forth in federal or
24state laws, or federal or board rules.
25(e)(1) "Controlled substance analog" means a substance the chemical
26structure of which is substantially similar to the chemical structure
27of a controlled substance in Schedule I or II and:
28(i) that has a stimulant, depressant, or hallucinogenic effect on
29the central nervous system substantially similar to the stimulant,
30depressant, or hallucinogenic effect on the central nervous system of
31a controlled substance included in Schedule I or II; or
32(ii) with respect to a particular individual, that the individual
33represents or intends to have a stimulant, depressant, or
34hallucinogenic effect on the central nervous system substantially
35similar to the stimulant, depressant, or hallucinogenic effect on the
1central nervous system of a controlled substance included in Schedule
2I or II.
3(2) The term does not include:
4(i) a controlled substance;
5(ii) a substance for which there is an approved new drug
6application;
7(iii) a substance with respect to which an exemption is in effect
8for investigational use by a particular person under Section 505 of the
9federal Food, Drug and Cosmetic Act, 21 U.S.C. Sec. 355, to the extent
10conduct with respect to the substance is pursuant to the exemption; or
11(iv) any substance to the extent not intended for human consumption
12before an exemption takes effect with respect to the substance.
13(f) "Deliver" or "delivery," means the actual or constructive
14transfer from one person to another of a substance, whether or not
15there is an agency relationship.
16(g) "Department" means the department of health.
17(h) "Dispense" means the interpretation of a prescription or order
18for a controlled substance and, pursuant to that prescription or order,
19the proper selection, measuring, compounding, labeling, or packaging
20necessary to prepare that prescription or order for delivery.
21(i) "Dispenser" means a practitioner who dispenses.
22(j) "Distribute" means to deliver other than by administering or
23dispensing a controlled substance.
24(k) "Distributor" means a person who distributes.
25(l) "Drug" means (1) a controlled substance recognized as a drug in
26the official United States pharmacopoeia/national formulary or the
27official homeopathic pharmacopoeia of the United States, or any
28supplement to them; (2) controlled substances intended for use in the
29diagnosis, cure, mitigation, treatment, or prevention of disease in
30individuals or animals; (3) controlled substances (other than food)
31intended to affect the structure or any function of the body of
32individuals or animals; and (4) controlled substances intended for use
33as a component of any article specified in (1), (2), or (3) of this
34subsection. The term does not include devices or their components,
35parts, or accessories.
36(m) "Drug enforcement administration" means the drug enforcement
37administration in the United States Department of Justice, or its
38successor agency.
1(n) "Immediate precursor" means a substance:
2(1) that the state board of pharmacy has found to be and by rule
3designates as being the principal compound commonly used, or produced
4primarily for use, in the manufacture of a controlled substance;
5(2) that is an immediate chemical intermediary used or likely to be
6used in the manufacture of a controlled substance; and
7(3) the control of which is necessary to prevent, curtail, or limit
8the manufacture of the controlled substance.
9(o) "Isomer" means an optical isomer, but in RCW 69.50.101(((r)))
10(x)(5), 69.50.204(a) (12) and (34), and 69.50.206(b)(4), the term
11includes any geometrical isomer; in RCW 69.50.204(a) (8) and (42), and
1269.50.210(c) the term includes any positional isomer; and in RCW
1369.50.204(a)(35), 69.50.204(c), and 69.50.208(a) the term includes any
14positional or geometric isomer.
15(p) "Lot" means a definite quantity of marijuana, useable
16marijuana, or marijuana-infused product identified by a lot number,
17every portion or package of which is uniform within recognized
18tolerances for the factors that appear in the labeling.
19(q) "Lot number" shall identify the licensee by business or trade
20name and Washington state unified business identifier number, and the
21date of harvest or processing for each lot of marijuana, useable
22marijuana, or marijuana-infused product.
23(r) "Manufacture" means the production, preparation, propagation,
24compounding, conversion, or processing of a controlled substance,
25either directly or indirectly or by extraction from substances of
26natural origin, or independently by means of chemical synthesis, or by
27a combination of extraction and chemical synthesis, and includes any
28packaging or repackaging of the substance or labeling or relabeling of
29its container. The term does not include the preparation, compounding,
30packaging, repackaging, labeling, or relabeling of a controlled
31substance:
32(1) by a practitioner as an incident to the practitioner's
33administering or dispensing of a controlled substance in the course of
34the practitioner's professional practice; or
35(2) by a practitioner, or by the practitioner's authorized agent
36under the practitioner's supervision, for the purpose of, or as an
37incident to, research, teaching, or chemical analysis and not for sale.
1(((q))) (s) "Marijuana" or "marihuana" means all parts of the plant
2Cannabis, whether growing or not, with a THC concentration greater than
30.3 percent on a dry weight basis; the seeds thereof; the resin
4extracted from any part of the plant; and every compound, manufacture,
5salt, derivative, mixture, or preparation of the plant, its seeds or
6resin. The term does not include the mature stalks of the plant, fiber
7produced from the stalks, oil or cake made from the seeds of the plant,
8any other compound, manufacture, salt, derivative, mixture, or
9preparation of the mature stalks (except the resin extracted
10therefrom), fiber, oil, or cake, or the sterilized seed of the plant
11which is incapable of germination.
12(((r))) (t) "Marijuana processor" means a person licensed by the
13state liquor control board to process marijuana into useable marijuana
14and marijuana-infused products, package and label useable marijuana and
15marijuana-infused products for sale in retail outlets, and sell useable
16marijuana and marijuana-infused products at wholesale to marijuana
17retailers.
18(u) "Marijuana producer" means a person licensed by the state
19liquor control board to produce and sell marijuana at wholesale to
20marijuana processors and other marijuana producers.
21(v) "Marijuana-infused products" means products that contain
22marijuana or marijuana extracts and are intended for human use. The
23term "marijuana-infused products" does not include useable marijuana.
24(w) "Marijuana retailer" means a person licensed by the state
25liquor control board to sell useable marijuana and marijuana-infused
26products in a retail outlet.
27(x) "Narcotic drug" means any of the following, whether produced
28directly or indirectly by extraction from substances of vegetable
29origin, or independently by means of chemical synthesis, or by a
30combination of extraction and chemical synthesis:
31(1) Opium, opium derivative, and any derivative of opium or opium
32derivative, including their salts, isomers, and salts of isomers,
33whenever the existence of the salts, isomers, and salts of isomers is
34possible within the specific chemical designation. The term does not
35include the isoquinoline alkaloids of opium.
36(2) Synthetic opiate and any derivative of synthetic opiate,
37including their isomers, esters, ethers, salts, and salts of isomers,
1esters, and ethers, whenever the existence of the isomers, esters,
2ethers, and salts is possible within the specific chemical designation.
3(3) Poppy straw and concentrate of poppy straw.
4(4) Coca leaves, except coca leaves and extracts of coca leaves
5from which cocaine, ecgonine, and derivatives or ecgonine or their
6salts have been removed.
7(5) Cocaine, or any salt, isomer, or salt of isomer thereof.
8(6) Cocaine base.
9(7) Ecgonine, or any derivative, salt, isomer, or salt of isomer
10thereof.
11(8) Any compound, mixture, or preparation containing any quantity
12of any substance referred to in subparagraphs (1) through (7).
13(((s))) (y) "Opiate" means any substance having an addiction-
14forming or addiction-sustaining liability similar to morphine or being
15capable of conversion into a drug having addiction-forming or
16addiction-sustaining liability. The term includes opium, substances
17derived from opium (opium derivatives), and synthetic opiates. The
18term does not include, unless specifically designated as controlled
19under RCW 69.50.201, the dextrorotatory isomer of 3-methoxy-n-
20methylmorphinan and its salts (dextromethorphan). The term includes
21the racemic and levorotatory forms of dextromethorphan.
22(((t))) (z) "Opium poppy" means the plant of the species Papaver
23somniferum L., except its seeds.
24(((u))) (aa) "Person" means individual, corporation, business
25trust, estate, trust, partnership, association, joint venture,
26government, governmental subdivision or agency, or any other legal or
27commercial entity.
28(((v))) (bb) "Poppy straw" means all parts, except the seeds, of
29the opium poppy, after mowing.
30(((w))) (cc) "Practitioner" means:
31(1) A physician under chapter 18.71 RCW; a physician assistant
32under chapter 18.71A RCW; an osteopathic physician and surgeon under
33chapter 18.57 RCW; an osteopathic physician assistant under chapter
3418.57A RCW who is licensed under RCW 18.57A.020 subject to any
35limitations in RCW 18.57A.040; an optometrist licensed under chapter
3618.53 RCW who is certified by the optometry board under RCW 18.53.010
37subject to any limitations in RCW 18.53.010; a dentist under chapter
3818.32 RCW; a podiatric physician and surgeon under chapter 18.22 RCW;
1a veterinarian under chapter 18.92 RCW; a registered nurse, advanced
2registered nurse practitioner, or licensed practical nurse under
3chapter 18.79 RCW; a naturopathic physician under chapter 18.36A RCW
4who is licensed under RCW 18.36A.030 subject to any limitations in RCW
518.36A.040; a pharmacist under chapter 18.64 RCW or a scientific
6investigator under this chapter, licensed, registered or otherwise
7permitted insofar as is consistent with those licensing laws to
8distribute, dispense, conduct research with respect to or administer a
9controlled substance in the course of their professional practice or
10research in this state.
11(2) A pharmacy, hospital or other institution licensed, registered,
12or otherwise permitted to distribute, dispense, conduct research with
13respect to or to administer a controlled substance in the course of
14professional practice or research in this state.
15(3) A physician licensed to practice medicine and surgery, a
16physician licensed to practice osteopathic medicine and surgery, a
17dentist licensed to practice dentistry, a podiatric physician and
18surgeon licensed to practice podiatric medicine and surgery, or a
19veterinarian licensed to practice veterinary medicine in any state of
20the United States.
21(((x))) (dd) "Prescription" means an order for controlled
22substances issued by a practitioner duly authorized by law or rule in
23the state of Washington to prescribe controlled substances within the
24scope of his or her professional practice for a legitimate medical
25purpose.
26(((y))) (ee) "Production" includes the manufacturing, planting,
27cultivating, growing, or harvesting of a controlled substance.
28(((z))) (ff) "Retail outlet" means a location licensed by the state
29liquor control board for the retail sale of useable marijuana and
30marijuana-infused products.
31(gg) "Secretary" means the secretary of health or the secretary's
32designee.
33(((aa))) (hh) "State," unless the context otherwise requires, means
34a state of the United States, the District of Columbia, the
35Commonwealth of Puerto Rico, or a territory or insular possession
36subject to the jurisdiction of the United States.
37(((bb))) (ii) "THC concentration" means percent of delta-9
1tetrahydrocannabinol content per dry weight of any part of the plant
2Cannabis, or per volume or weight of marijuana product.
3(jj) "Ultimate user" means an individual who lawfully possesses a
4controlled substance for the individual's own use or for the use of a
5member of the individual's household or for administering to an animal
6owned by the individual or by a member of the individual's household.
7(((cc))) (kk) "Useable marijuana" means dried marijuana flowers.
8The term "useable marijuana" does not include marijuana-infused
9products.
10(ll) "Electronic communication of prescription information" means
11the communication of prescription information by computer, or the
12transmission of an exact visual image of a prescription by facsimile,
13or other electronic means for original prescription information or
14prescription refill information for a Schedule III-V controlled
15substance between an authorized practitioner and a pharmacy or the
16transfer of prescription information for a controlled substance from
17one pharmacy to another pharmacy.
18NEW SECTION. Sec. 3. A new section is added to chapter 46.04 RCW
19to read as follows:
20"THC concentration" means nanograms of delta-9 tetrahydrocannabinol
21per milliliter of a person's whole blood. THC concentration does not
22include measurement of the metabolite THC-COOH, also known as carboxy-
23THC.
24PART III
25LICENSING AND REGULATION OF MARIJUANA
26PRODUCERS, PROCESSORS, AND RETAILERS
27NEW SECTION. Sec. 4. (1) There shall be a marijuana producer's
28license to produce marijuana for sale at wholesale to marijuana
29processors and other marijuana producers, regulated by the state liquor
30control board and subject to annual renewal. The production,
31possession, delivery, distribution, and sale of marijuana in accordance
32with the provisions of this act and the rules adopted to implement and
33enforce it, by a validly licensed marijuana producer, shall not be a
34criminal or civil offense under Washington state law. Every marijuana
35producer's license shall be issued in the name of the applicant, shall
1specify the location at which the marijuana producer intends to
2operate, which must be within the state of Washington, and the holder
3thereof shall not allow any other person to use the license. The
4application fee for a marijuana producer's license shall be two hundred
5fifty dollars. The annual fee for issuance and renewal of a marijuana
6producer's license shall be one thousand dollars. A separate license
7shall be required for each location at which a marijuana producer
8intends to produce marijuana.
9(2) There shall be a marijuana processor's license to process,
10package, and label useable marijuana and marijuana-infused products for
11sale at wholesale to marijuana retailers, regulated by the state liquor
12control board and subject to annual renewal. The processing,
13packaging, possession, delivery, distribution, and sale of marijuana,
14useable marijuana, and marijuana-infused products in accordance with
15the provisions of this act and the rules adopted to implement and
16enforce it, by a validly licensed marijuana processor, shall not be a
17criminal or civil offense under Washington state law. Every marijuana
18processor's license shall be issued in the name of the applicant, shall
19specify the location at which the licensee intends to operate, which
20must be within the state of Washington, and the holder thereof shall
21not allow any other person to use the license. The application fee for
22a marijuana processor's license shall be two hundred fifty dollars.
23The annual fee for issuance and renewal of a marijuana processor's
24license shall be one thousand dollars. A separate license shall be
25required for each location at which a marijuana processor intends to
26process marijuana.
27(3) There shall be a marijuana retailer's license to sell useable
28marijuana and marijuana-infused products at retail in retail outlets,
29regulated by the state liquor control board and subject to annual
30renewal. The possession, delivery, distribution, and sale of useable
31marijuana and marijuana-infused products in accordance with the
32provisions of this act and the rules adopted to implement and enforce
33it, by a validly licensed marijuana retailer, shall not be a criminal
34or civil offense under Washington state law. Every marijuana
35retailer's license shall be issued in the name of the applicant, shall
36specify the location of the retail outlet the licensee intends to
37operate, which must be within the state of Washington, and the holder
38thereof shall not allow any other person to use the license. The
1application fee for a marijuana retailer's license shall be two hundred
2fifty dollars. The annual fee for issuance and renewal of a marijuana
3retailer's license shall be one thousand dollars. A separate license
4shall be required for each location at which a marijuana retailer
5intends to sell useable marijuana and marijuana-infused products.
6NEW SECTION. Sec. 5. Neither a licensed marijuana producer nor a
7licensed marijuana processor shall have a direct or indirect financial
8interest in a licensed marijuana retailer.
9NEW SECTION. Sec. 6. (1) For the purpose of considering any
10application for a license to produce, process, or sell marijuana, or
11for the renewal of a license to produce, process, or sell marijuana,
12the state liquor control board may cause an inspection of the premises
13to be made, and may inquire into all matters in connection with the
14construction and operation of the premises. For the purpose of
15reviewing any application for a license and for considering the denial,
16suspension, revocation, or renewal or denial thereof, of any license,
17the state liquor control board may consider any prior criminal conduct
18of the applicant including an administrative violation history record
19with the state liquor control board and a criminal history record
20information check. The state liquor control board may submit the
21criminal history record information check to the Washington state
22patrol and to the identification division of the federal bureau of
23investigation in order that these agencies may search their records for
24prior arrests and convictions of the individual or individuals who
25filled out the forms. The state liquor control board shall require
26fingerprinting of any applicant whose criminal history record
27information check is submitted to the federal bureau of investigation.
28The provisions of RCW 9.95.240 and of chapter 9.96A RCW shall not apply
29to these cases. Subject to the provisions of this section, the state
30liquor control board may, in its discretion, grant or deny the renewal
31or license applied for. Denial may be based on, without limitation,
32the existence of chronic illegal activity documented in objections
33submitted pursuant to subsections (7)(c) and (9) of this section.
34Authority to approve an uncontested or unopposed license may be granted
35by the state liquor control board to any staff member the board
1designates in writing. Conditions for granting this authority shall be
2adopted by rule. No license of any kind may be issued to:
3(a) A person under the age of twenty-one years;
4(b) A person doing business as a sole proprietor who has not
5lawfully resided in the state for at least three months prior to
6applying to receive a license;
7(c) A partnership, employee cooperative, association, nonprofit
8corporation, or corporation unless formed under the laws of this state,
9and unless all of the members thereof are qualified to obtain a license
10as provided in this section; or
11(d) A person whose place of business is conducted by a manager or
12agent, unless the manager or agent possesses the same qualifications
13required of the licensee.
14(2)(a) The state liquor control board may, in its discretion,
15subject to the provisions of section 7 of this act, suspend or cancel
16any license; and all protections of the licensee from criminal or civil
17sanctions under state law for producing, processing, or selling
18marijuana, useable marijuana, or marijuana-infused products thereunder
19shall be suspended or terminated, as the case may be.
20(b) The state liquor control board shall immediately suspend the
21license of a person who has been certified pursuant to RCW 74.20A.320
22by the department of social and health services as a person who is not
23in compliance with a support order. If the person has continued to
24meet all other requirements for reinstatement during the suspension,
25reissuance of the license shall be automatic upon the state liquor
26control board's receipt of a release issued by the department of social
27and health services stating that the licensee is in compliance with the
28order.
29(c) The state liquor control board may request the appointment of
30administrative law judges under chapter 34.12 RCW who shall have power
31to administer oaths, issue subpoenas for the attendance of witnesses
32and the production of papers, books, accounts, documents, and
33testimony, examine witnesses, and to receive testimony in any inquiry,
34investigation, hearing, or proceeding in any part of the state, under
35rules and regulations the state liquor control board may adopt.
36(d) Witnesses shall be allowed fees and mileage each way to and
37from any inquiry, investigation, hearing, or proceeding at the rate
1authorized by RCW 34.05.446. Fees need not be paid in advance of
2appearance of witnesses to testify or to produce books, records, or
3other legal evidence.
4(e) In case of disobedience of any person to comply with the order
5of the state liquor control board or a subpoena issued by the state
6liquor control board, or any of its members, or administrative law
7judges, or on the refusal of a witness to testify to any matter
8regarding which he or she may be lawfully interrogated, the judge of
9the superior court of the county in which the person resides, on
10application of any member of the board or administrative law judge,
11shall compel obedience by contempt proceedings, as in the case of
12disobedience of the requirements of a subpoena issued from said court
13or a refusal to testify therein.
14(3) Upon receipt of notice of the suspension or cancellation of a
15license, the licensee shall forthwith deliver up the license to the
16state liquor control board. Where the license has been suspended only,
17the state liquor control board shall return the license to the licensee
18at the expiration or termination of the period of suspension. The
19state liquor control board shall notify all other licensees in the
20county where the subject licensee has its premises of the suspension or
21cancellation of the license; and no other licensee or employee of
22another licensee may allow or cause any marijuana, useable marijuana,
23or marijuana-infused products to be delivered to or for any person at
24the premises of the subject licensee.
25(4) Every license issued under this act shall be subject to all
26conditions and restrictions imposed by this act or by rules adopted by
27the state liquor control board to implement and enforce this act. All
28conditions and restrictions imposed by the state liquor control board
29in the issuance of an individual license shall be listed on the face of
30the individual license along with the trade name, address, and
31expiration date.
32(5) Every licensee shall post and keep posted its license, or
33licenses, in a conspicuous place on the premises.
34(6) No licensee shall employ any person under the age of twenty-one
35years.
36(7)(a) Before the state liquor control board issues a new or
37renewed license to an applicant it shall give notice of the application
38to the chief executive officer of the incorporated city or town, if the
1application is for a license within an incorporated city or town, or to
2the county legislative authority, if the application is for a license
3outside the boundaries of incorporated cities or towns.
4(b) The incorporated city or town through the official or employee
5selected by it, or the county legislative authority or the official or
6employee selected by it, shall have the right to file with the state
7liquor control board within twenty days after the date of transmittal
8of the notice for applications, or at least thirty days prior to the
9expiration date for renewals, written objections against the applicant
10or against the premises for which the new or renewed license is asked.
11The state liquor control board may extend the time period for
12submitting written objections.
13(c) The written objections shall include a statement of all facts
14upon which the objections are based, and in case written objections are
15filed, the city or town or county legislative authority may request,
16and the state liquor control board may in its discretion hold, a
17hearing subject to the applicable provisions of Title 34 RCW. If the
18state liquor control board makes an initial decision to deny a license
19or renewal based on the written objections of an incorporated city or
20town or county legislative authority, the applicant may request a
21hearing subject to the applicable provisions of Title 34 RCW. If a
22hearing is held at the request of the applicant, state liquor control
23board representatives shall present and defend the state liquor control
24board's initial decision to deny a license or renewal.
25(d) Upon the granting of a license under this title the state
26liquor control board shall send written notification to the chief
27executive officer of the incorporated city or town in which the license
28is granted, or to the county legislative authority if the license is
29granted outside the boundaries of incorporated cities or towns.
30(8) The state liquor control board shall not issue a license for
31any premises within one thousand feet of the perimeter of the grounds
32of any elementary or secondary school, playground, recreation center or
33facility, child care center, public park, public transit center, or
34library, or any game arcade admission to which is not restricted to
35persons aged twenty-one years or older.
36(9) In determining whether to grant or deny a license or renewal of
37any license, the state liquor control board shall give substantial
38weight to objections from an incorporated city or town or county
1legislative authority based upon chronic illegal activity associated
2with the applicant's operations of the premises proposed to be licensed
3or the applicant's operation of any other licensed premises, or the
4conduct of the applicant's patrons inside or outside the licensed
5premises. "Chronic illegal activity" means (a) a pervasive pattern of
6activity that threatens the public health, safety, and welfare of the
7city, town, or county including, but not limited to, open container
8violations, assaults, disturbances, disorderly conduct, or other
9criminal law violations, or as documented in crime statistics, police
10reports, emergency medical response data, calls for service, field
11data, or similar records of a law enforcement agency for the city,
12town, county, or any other municipal corporation or any state agency;
13or (b) an unreasonably high number of citations for violations of RCW
1446.61.502 associated with the applicant's or licensee's operation of
15any licensed premises as indicated by the reported statements given to
16law enforcement upon arrest.
17NEW SECTION. Sec. 7. The action, order, or decision of the state
18liquor control board as to any denial of an application for the
19reissuance of a license to produce, process, or sell marijuana, or as
20to any revocation, suspension, or modification of any license to
21produce, process, or sell marijuana, shall be an adjudicative
22proceeding and subject to the applicable provisions of chapter 34.05
23RCW.
24(1) An opportunity for a hearing may be provided to an applicant
25for the reissuance of a license prior to the disposition of the
26application, and if no opportunity for a prior hearing is provided then
27an opportunity for a hearing to reconsider the application must be
28provided the applicant.
29(2) An opportunity for a hearing must be provided to a licensee
30prior to a revocation or modification of any license and, except as
31provided in subsection (4) of this section, prior to the suspension of
32any license.
33(3) No hearing shall be required until demanded by the applicant or
34licensee.
35(4) The state liquor control board may summarily suspend a license
36for a period of up to one hundred eighty days without a prior hearing
37if it finds that public health, safety, or welfare imperatively require
1emergency action, and it incorporates a finding to that effect in its
2order. Proceedings for revocation or other action must be promptly
3instituted and determined. An administrative law judge may extend the
4summary suspension period for up to one calendar year from the first
5day of the initial summary suspension in the event the proceedings for
6revocation or other action cannot be completed during the initial one
7hundred eighty-day period due to actions by the licensee. The state
8liquor control board's enforcement division shall complete a
9preliminary staff investigation of the violation before requesting an
10emergency suspension by the state liquor control board.
11NEW SECTION. Sec. 8. (1) If the state liquor control board
12approves, a license to produce, process, or sell marijuana may be
13transferred, without charge, to the surviving spouse or domestic
14partner of a deceased licensee if the license was issued in the names
15of one or both of the parties. For the purpose of considering the
16qualifications of the surviving party to receive a marijuana
17producer's, marijuana processor's, or marijuana retailer's license, the
18state liquor control board may require a criminal history record
19information check. The state liquor control board may submit the
20criminal history record information check to the Washington state
21patrol and to the identification division of the federal bureau of
22investigation in order that these agencies may search their records for
23prior arrests and convictions of the individual or individuals who
24filled out the forms. The state liquor control board shall require
25fingerprinting of any applicant whose criminal history record
26information check is submitted to the federal bureau of investigation.
27(2) The proposed sale of more than ten percent of the outstanding
28or issued stock of a corporation licensed under this act, or any
29proposed change in the officers of such a corporation, must be reported
30to the state liquor control board, and state liquor control board
31approval must be obtained before the changes are made. A fee of
32seventy-five dollars will be charged for the processing of the change
33of stock ownership or corporate officers.
34NEW SECTION. Sec. 9. For the purpose of carrying into effect the
35provisions of this act according to their true intent or of supplying
36any deficiency therein, the state liquor control board may adopt rules
1not inconsistent with the spirit of this act as are deemed necessary or
2advisable. Without limiting the generality of the preceding sentence,
3the state liquor control board is empowered to adopt rules regarding
4the following:
5(1) The equipment and management of retail outlets and premises
6where marijuana is produced or processed, and inspection of the retail
7outlets and premises;
8(2) The books and records to be created and maintained by
9licensees, the reports to be made thereon to the state liquor control
10board, and inspection of the books and records;
11(3) Methods of producing, processing, and packaging marijuana,
12useable marijuana, and marijuana-infused products; conditions of
13sanitation; and standards of ingredients, quality, and identity of
14marijuana, useable marijuana, and marijuana-infused products produced,
15processed, packaged, or sold by licensees;
16(4) Security requirements for retail outlets and premises where
17marijuana is produced or processed, and safety protocols for licensees
18and their employees;
19(5) Screening, hiring, training, and supervising employees of
20licensees;
21(6) Retail outlet locations and hours of operation;
22(7) Labeling requirements and restrictions on advertisement of
23marijuana, useable marijuana, and marijuana-infused products;
24(8) Forms to be used for purposes of this act or the rules adopted
25to implement and enforce it, the terms and conditions to be contained
26in licenses issued under this act, and the qualifications for receiving
27a license issued under this act, including a criminal history record
28information check. The state liquor control board may submit any
29criminal history record information check to the Washington state
30patrol and to the identification division of the federal bureau of
31investigation in order that these agencies may search their records for
32prior arrests and convictions of the individual or individuals who
33filled out the forms. The state liquor control board shall require
34fingerprinting of any applicant whose criminal history record
35information check is submitted to the federal bureau of investigation;
36(9) Application, reinstatement, and renewal fees for licenses
37issued under this act, and fees for anything done or permitted to be
38done under the rules adopted to implement and enforce this act;
1(10) The manner of giving and serving notices required by this act
2or rules adopted to implement or enforce it;
3(11) Times and periods when, and the manner, methods, and means by
4which, licensees shall transport and deliver marijuana, useable
5marijuana, and marijuana-infused products within the state;
6(12) Identification, seizure, confiscation, destruction, or
7donation to law enforcement for training purposes of all marijuana,
8useable marijuana, and marijuana-infused products produced, processed,
9sold, or offered for sale within this state which do not conform in all
10respects to the standards prescribed by this act or the rules adopted
11to implement and enforce it: PROVIDED, That nothing in this act shall
12be construed as authorizing the state liquor control board to seize,
13confiscate, destroy, or donate to law enforcement marijuana, useable
14marijuana, or marijuana-infused products produced, processed, sold,
15offered for sale, or possessed in compliance with the Washington state
16medical use of cannabis act, chapter 69.51A RCW.
17NEW SECTION. Sec. 10. The state liquor control board, subject to
18the provisions of this act, must adopt rules by December 1, 2013, that
19establish the procedures and criteria necessary to implement the
20following:
21(1) Licensing of marijuana producers, marijuana processors, and
22marijuana retailers, including prescribing forms and establishing
23application, reinstatement, and renewal fees;
24(2) Determining, in consultation with the office of financial
25management, the maximum number of retail outlets that may be licensed
26in each county, taking into consideration:
27(a) Population distribution;
28(b) Security and safety issues; and
29(c) The provision of adequate access to licensed sources of useable
30marijuana and marijuana-infused products to discourage purchases from
31the illegal market;
32(3) Determining the maximum quantity of marijuana a marijuana
33producer may have on the premises of a licensed location at any time
34without violating Washington state law;
35(4) Determining the maximum quantities of marijuana, useable
36marijuana, and marijuana-infused products a marijuana processor may
1have on the premises of a licensed location at any time without
2violating Washington state law;
3(5) Determining the maximum quantities of useable marijuana and
4marijuana-infused products a marijuana retailer may have on the
5premises of a retail outlet at any time without violating Washington
6state law;
7(6) In making the determinations required by subsections (3)
8through (5) of this section, the state liquor control board shall take
9into consideration:
10(a) Security and safety issues;
11(b) The provision of adequate access to licensed sources of
12marijuana, useable marijuana, and marijuana-infused products to
13discourage purchases from the illegal market; and
14(c) Economies of scale, and their impact on licensees' ability to
15both comply with regulatory requirements and undercut illegal market
16prices;
17(7) Determining the nature, form, and capacity of all containers to
18be used by licensees to contain marijuana, useable marijuana, and
19marijuana-infused products, and their labeling requirements, to include
20but not be limited to:
21(a) The business or trade name and Washington state unified
22business identifier number of the licensees that grew, processed, and
23sold the marijuana, useable marijuana, or marijuana-infused product;
24(b) Lot numbers of the marijuana, useable marijuana, or marijuana-
25infused product;
26(c) THC concentration of the marijuana, useable marijuana, or
27marijuana-infused product;
28(d) Medically and scientifically accurate information about the
29health and safety risks posed by marijuana use; and
30(e) Language required by RCW 69.04.480;
31(8) In consultation with the department of agriculture,
32establishing classes of marijuana, useable marijuana, and marijuana-
33infused products according to grade, condition, cannabinoid profile,
34THC concentration, or other qualitative measurements deemed appropriate
35by the state liquor control board;
36(9) Establishing reasonable time, place, and manner restrictions
37and requirements regarding advertising of marijuana, useable marijuana,
1and marijuana-infused products that are not inconsistent with the
2provisions of this act, taking into consideration:
3(a) Federal laws relating to marijuana that are applicable within
4Washington state;
5(b) Minimizing exposure of people under twenty-one years of age to
6the advertising; and
7(c) The inclusion of medically and scientifically accurate
8information about the health and safety risks posed by marijuana use in
9the advertising;
10(10) Specifying and regulating the time and periods when, and the
11manner, methods, and means by which, licensees shall transport and
12deliver marijuana, useable marijuana, and marijuana-infused products
13within the state;
14(11) In consultation with the department and the department of
15agriculture, establishing accreditation requirements for testing
16laboratories used by licensees to demonstrate compliance with standards
17adopted by the state liquor control board, and prescribing methods of
18producing, processing, and packaging marijuana, useable marijuana, and
19marijuana-infused products; conditions of sanitation; and standards of
20ingredients, quality, and identity of marijuana, useable marijuana, and
21marijuana-infused products produced, processed, packaged, or sold by
22licensees;
23(12) Specifying procedures for identifying, seizing, confiscating,
24destroying, and donating to law enforcement for training purposes all
25marijuana, useable marijuana, and marijuana-infused products produced,
26processed, packaged, labeled, or offered for sale in this state that do
27not conform in all respects to the standards prescribed by this act or
28the rules of the state liquor control board.
29NEW SECTION. Sec. 11. (1) On a schedule determined by the state
30liquor control board, every licensed marijuana producer and processor
31must submit representative samples of marijuana, useable marijuana, or
32marijuana-infused products produced or processed by the licensee to an
33independent, third-party testing laboratory meeting the accreditation
34requirements established by the state liquor control board, for
35inspection and testing to certify compliance with standards adopted by
36the state liquor control board. Any sample remaining after testing
37shall be destroyed by the laboratory or returned to the licensee.
1(2) Licensees must submit the results of this inspection and
2testing to the state liquor control board on a form developed by the
3state liquor control board.
4(3) If a representative sample inspected and tested under this
5section does not meet the applicable standards adopted by the state
6liquor control board, the entire lot from which the sample was taken
7must be destroyed.
8NEW SECTION. Sec. 12. Except as provided by chapter 42.52 RCW, no
9member of the state liquor control board and no employee of the state
10liquor control board shall have any interest, directly or indirectly,
11in the producing, processing, or sale of marijuana, useable marijuana,
12or marijuana-infused products, or derive any profit or remuneration
13from the sale of marijuana, useable marijuana, or marijuana-infused
14products other than the salary or wages payable to him or her in
15respect of his or her office or position, and shall receive no gratuity
16from any person in connection with the business.
17NEW SECTION. Sec. 13. There may be licensed, in no greater number
18in each of the counties of the state than as the state liquor control
19board shall deem advisable, retail outlets established for the purpose
20of making useable marijuana and marijuana-infused products available
21for sale to adults aged twenty-one and over. Retail sale of useable
22marijuana and marijuana-infused products in accordance with the
23provisions of this act and the rules adopted to implement and enforce
24it, by a validly licensed marijuana retailer or retail outlet employee,
25shall not be a criminal or civil offense under Washington state law.
26NEW SECTION. Sec. 14. (1) Retail outlets shall sell no products
27or services other than useable marijuana, marijuana-infused products,
28or paraphernalia intended for the storage or use of useable marijuana
29or marijuana-infused products.
30(2) Licensed marijuana retailers shall not employ persons under
31twenty-one years of age or allow persons under twenty-one years of age
32to enter or remain on the premises of a retail outlet.
33(3) Licensed marijuana retailers shall not display any signage in
34a window, on a door, or on the outside of the premises of a retail
35outlet that is visible to the general public from a public right-of-
1way, other than a single sign no larger than one thousand six hundred
2square inches identifying the retail outlet by the licensee's business
3or trade name.
4(4) Licensed marijuana retailers shall not display useable
5marijuana or marijuana-infused products in a manner that is visible to
6the general public from a public right-of-way.
7(5) No licensed marijuana retailer or employee of a retail outlet
8shall open or consume, or allow to be opened or consumed, any useable
9marijuana or marijuana-infused product on the outlet premises.
10(6) The state liquor control board shall fine a licensee one
11thousand dollars for each violation of any subsection of this section.
12Fines collected under this section must be deposited into the dedicated
13marijuana fund created under section 26 of this act.
14NEW SECTION. Sec. 15. The following acts, when performed by a
15validly licensed marijuana retailer or employee of a validly licensed
16retail outlet in compliance with rules adopted by the state liquor
17control board to implement and enforce this act, shall not constitute
18criminal or civil offenses under Washington state law:
19(1) Purchase and receipt of useable marijuana or marijuana-infused
20products that have been properly packaged and labeled from a marijuana
21processor validly licensed under this act;
22(2) Possession of quantities of useable marijuana or marijuana-
23infused products that do not exceed the maximum amounts established by
24the state liquor control board under section 10(5) of this act; and
25(3) Delivery, distribution, and sale, on the premises of the retail
26outlet, of any combination of the following amounts of useable
27marijuana or marijuana-infused product to any person twenty-one years
28of age or older:
29(a) One ounce of useable marijuana;
30(b) Sixteen ounces of marijuana-infused product in solid form; or
31(c) Seventy-two ounces of marijuana-infused product in liquid form.
32NEW SECTION. Sec. 16. The following acts, when performed by a
33validly licensed marijuana processor or employee of a validly licensed
34marijuana processor in compliance with rules adopted by the state
35liquor control board to implement and enforce this act, shall not
36constitute criminal or civil offenses under Washington state law:
1(1) Purchase and receipt of marijuana that has been properly
2packaged and labeled from a marijuana producer validly licensed under
3this act;
4(2) Possession, processing, packaging, and labeling of quantities
5of marijuana, useable marijuana, and marijuana-infused products that do
6not exceed the maximum amounts established by the state liquor control
7board under section 10(4) of this act; and
8(3) Delivery, distribution, and sale of useable marijuana or
9marijuana-infused products to a marijuana retailer validly licensed
10under this act.
11NEW SECTION. Sec. 17. The following acts, when performed by a
12validly licensed marijuana producer or employee of a validly licensed
13marijuana producer in compliance with rules adopted by the state liquor
14control board to implement and enforce this act, shall not constitute
15criminal or civil offenses under Washington state law:
16(1) Production or possession of quantities of marijuana that do not
17exceed the maximum amounts established by the state liquor control
18board under section 10(3) of this act; and
19(2) Delivery, distribution, and sale of marijuana to a marijuana
20processor or another marijuana producer validly licensed under this
21act.
22NEW SECTION. Sec. 18. (1) No licensed marijuana producer,
23processor, or retailer shall place or maintain, or cause to be placed
24or maintained, an advertisement of marijuana, useable marijuana, or a
25marijuana-infused product in any form or through any medium whatsoever:
26(a) Within one thousand feet of the perimeter of a school grounds,
27playground, recreation center or facility, child care center, public
28park, or library, or any game arcade admission to which is not
29restricted to persons aged twenty-one years or older;
30(b) On or in a public transit vehicle or public transit shelter; or
31(c) On or in a publicly owned or operated property.
32(2) Merchandising within a retail outlet is not advertising for the
33purposes of this section.
34(3) This section does not apply to a noncommercial message.
35(4) The state liquor control board shall fine a licensee one
1thousand dollars for each violation of subsection (1) of this section.
2Fines collected under this subsection must be deposited into the
3dedicated marijuana fund created under section 26 of this act.
4Sec. 19. RCW 69.50.401 and 2005 c 218 s 1 are each amended to read
5as follows:
6(1) Except as authorized by this chapter, it is unlawful for any
7person to manufacture, deliver, or possess with intent to manufacture
8or deliver, a controlled substance.
9(2) Any person who violates this section with respect to:
10(a) A controlled substance classified in Schedule I or II which is
11a narcotic drug or flunitrazepam, including its salts, isomers, and
12salts of isomers, classified in Schedule IV, is guilty of a class B
13felony and upon conviction may be imprisoned for not more than ten
14years, or (i) fined not more than twenty-five thousand dollars if the
15crime involved less than two kilograms of the drug, or both such
16imprisonment and fine; or (ii) if the crime involved two or more
17kilograms of the drug, then fined not more than one hundred thousand
18dollars for the first two kilograms and not more than fifty dollars for
19each gram in excess of two kilograms, or both such imprisonment and
20fine;
21(b) Amphetamine, including its salts, isomers, and salts of
22isomers, or methamphetamine, including its salts, isomers, and salts of
23isomers, is guilty of a class B felony and upon conviction may be
24imprisoned for not more than ten years, or (i) fined not more than
25twenty-five thousand dollars if the crime involved less than two
26kilograms of the drug, or both such imprisonment and fine; or (ii) if
27the crime involved two or more kilograms of the drug, then fined not
28more than one hundred thousand dollars for the first two kilograms and
29not more than fifty dollars for each gram in excess of two kilograms,
30or both such imprisonment and fine. Three thousand dollars of the fine
31may not be suspended. As collected, the first three thousand dollars
32of the fine must be deposited with the law enforcement agency having
33responsibility for cleanup of laboratories, sites, or substances used
34in the manufacture of the methamphetamine, including its salts,
35isomers, and salts of isomers. The fine moneys deposited with that law
36enforcement agency must be used for such clean-up cost;
1(c) Any other controlled substance classified in Schedule I, II, or
2III, is guilty of a class C felony punishable according to chapter
39A.20 RCW;
4(d) A substance classified in Schedule IV, except flunitrazepam,
5including its salts, isomers, and salts of isomers, is guilty of a
6class C felony punishable according to chapter 9A.20 RCW; or
7(e) A substance classified in Schedule V, is guilty of a class C
8felony punishable according to chapter 9A.20 RCW.
9(3) The production, manufacture, processing, packaging, delivery,
10distribution, sale, or possession of marijuana in compliance with the
11terms set forth in section 15, 16, or 17 of this act shall not
12constitute a violation of this section, this chapter, or any other
13provision of Washington state law.
14Sec. 20. RCW 69.50.4013 and 2003 c 53 s 334 are each amended to
15read as follows:
16(1) It is unlawful for any person to possess a controlled substance
17unless the substance was obtained directly from, or pursuant to, a
18valid prescription or order of a practitioner while acting in the
19course of his or her professional practice, or except as otherwise
20authorized by this chapter.
21(2) Except as provided in RCW 69.50.4014, any person who violates
22this section is guilty of a class C felony punishable under chapter
239A.20 RCW.
24(3) The possession, by a person twenty-one years of age or older,
25of useable marijuana or marijuana-infused products in amounts that do
26not exceed those set forth in section 15(3) of this act is not a
27violation of this section, this chapter, or any other provision of
28Washington state law.
29NEW SECTION. Sec. 21. It is unlawful to open a package containing
30marijuana, useable marijuana, or a marijuana-infused product, or
31consume marijuana, useable marijuana, or a marijuana-infused product,
32in view of the general public. A person who violates this section is
33guilty of a class 3 civil infraction under chapter 7.80 RCW.
34Sec. 22. RCW 69.50.412 and 2002 c 213 s 1 are each amended to read
35as follows:
1(1) It is unlawful for any person to use drug paraphernalia to
2plant, propagate, cultivate, grow, harvest, manufacture, compound,
3convert, produce, process, prepare, test, analyze, pack, repack, store,
4contain, conceal, inject, ingest, inhale, or otherwise introduce into
5the human body a controlled substance other than marijuana. Any person
6who violates this subsection is guilty of a misdemeanor.
7(2) It is unlawful for any person to deliver, possess with intent
8to deliver, or manufacture with intent to deliver drug paraphernalia,
9knowing, or under circumstances where one reasonably should know, that
10it will be used to plant, propagate, cultivate, grow, harvest,
11manufacture, compound, convert, produce, process, prepare, test,
12analyze, pack, repack, store, contain, conceal, inject, ingest, inhale,
13or otherwise introduce into the human body a controlled substance other
14than marijuana. Any person who violates this subsection is guilty of
15a misdemeanor.
16(3) Any person eighteen years of age or over who violates
17subsection (2) of this section by delivering drug paraphernalia to a
18person under eighteen years of age who is at least three years his
19junior is guilty of a gross misdemeanor.
20(4) It is unlawful for any person to place in any newspaper,
21magazine, handbill, or other publication any advertisement, knowing, or
22under circumstances where one reasonably should know, that the purpose
23of the advertisement, in whole or in part, is to promote the sale of
24objects designed or intended for use as drug paraphernalia. Any person
25who violates this subsection is guilty of a misdemeanor.
26(5) It is lawful for any person over the age of eighteen to possess
27sterile hypodermic syringes and needles for the purpose of reducing
28bloodborne diseases.
29Sec. 23. RCW 69.50.4121 and 2002 c 213 s 2 are each amended to
30read as follows:
31(1) Every person who sells or gives, or permits to be sold or given
32to any person any drug paraphernalia in any form commits a class I
33civil infraction under chapter 7.80 RCW. For purposes of this
34subsection, "drug paraphernalia" means all equipment, products, and
35materials of any kind which are used, intended for use, or designed for
36use in planting, propagating, cultivating, growing, harvesting,
37manufacturing, compounding, converting, producing, processing,
1preparing, testing, analyzing, packaging, repackaging, storing,
2containing, concealing, injecting, ingesting, inhaling, or otherwise
3introducing into the human body a controlled substance other than
4marijuana. Drug paraphernalia includes, but is not limited to objects
5used, intended for use, or designed for use in ingesting, inhaling, or
6otherwise introducing ((marihuana,)) cocaine((, hashish, or hashish
7oil)) into the human body, such as:
8(a) Metal, wooden, acrylic, glass, stone, plastic, or ceramic pipes
9with or without screens, permanent screens, hashish heads, or punctured
10metal bowls;
11(b) Water pipes;
12(c) Carburetion tubes and devices;
13(d) Smoking and carburetion masks;
14(e) ((Roach clips: Meaning objects used to hold burning material,
15such as a marihuana cigarette, that has become too small or too short
16to be held in the hand;
17(f))) Miniature cocaine spoons and cocaine vials;
18(((g))) (f) Chamber pipes;
19(((h))) (g) Carburetor pipes;
20(((i))) (h) Electric pipes;
21(((j))) (i) Air-driven pipes;
22(((k) Chillums;
23(l) Bongs;)) and
24(((m))) (j) Ice pipes or chillers.
25(2) It shall be no defense to a prosecution for a violation of this
26section that the person acted, or was believed by the defendant to act,
27as agent or representative of another.
28(3) Nothing in subsection (1) of this section prohibits legal
29distribution of injection syringe equipment through public health and
30community based HIV prevention programs, and pharmacies.
31Sec. 24. RCW 69.50.500 and 1989 1st ex.s. c 9 s 437 are each
32amended to read as follows:
33(a) It is hereby made the duty of the state board of pharmacy, the
34department, the state liquor control board, and their officers, agents,
35inspectors and representatives, and all law enforcement officers within
36the state, and of all prosecuting attorneys, to enforce all provisions
37of this chapter, except those specifically delegated, and to cooperate
1with all agencies charged with the enforcement of the laws of the
2United States, of this state, and all other states, relating to
3controlled substances as defined in this chapter.
4(b) Employees of the department of health, who are so designated by
5the board as enforcement officers are declared to be peace officers and
6shall be vested with police powers to enforce the drug laws of this
7state, including this chapter.
8Sec. 25. RCW 69.50.505 and 2009 c 479 s 46 and 2009 c 364 s 1 are
9each reenacted and amended to read as follows:
10(1) The following are subject to seizure and forfeiture and no
11property right exists in them:
12(a) All controlled substances which have been manufactured,
13distributed, dispensed, acquired, or possessed in violation of this
14chapter or chapter 69.41 or 69.52 RCW, and all hazardous chemicals, as
15defined in RCW 64.44.010, used or intended to be used in the
16manufacture of controlled substances;
17(b) All raw materials, products, and equipment of any kind which
18are used, or intended for use, in manufacturing, compounding,
19processing, delivering, importing, or exporting any controlled
20substance in violation of this chapter or chapter 69.41 or 69.52 RCW;
21(c) All property which is used, or intended for use, as a container
22for property described in (a) or (b) of this subsection;
23(d) All conveyances, including aircraft, vehicles, or vessels,
24which are used, or intended for use, in any manner to facilitate the
25sale, delivery, or receipt of property described in (a) or (b) of this
26subsection, except that:
27(i) No conveyance used by any person as a common carrier in the
28transaction of business as a common carrier is subject to forfeiture
29under this section unless it appears that the owner or other person in
30charge of the conveyance is a consenting party or privy to a violation
31of this chapter or chapter 69.41 or 69.52 RCW;
32(ii) No conveyance is subject to forfeiture under this section by
33reason of any act or omission established by the owner thereof to have
34been committed or omitted without the owner's knowledge or consent;
35(iii) No conveyance is subject to forfeiture under this section if
36used in the receipt of only an amount of marijuana for which possession
37constitutes a misdemeanor under RCW 69.50.4014;
1(iv) A forfeiture of a conveyance encumbered by a bona fide
2security interest is subject to the interest of the secured party if
3the secured party neither had knowledge of nor consented to the act or
4omission; and
5(v) When the owner of a conveyance has been arrested under this
6chapter or chapter 69.41 or 69.52 RCW the conveyance in which the
7person is arrested may not be subject to forfeiture unless it is seized
8or process is issued for its seizure within ten days of the owner's
9arrest;
10(e) All books, records, and research products and materials,
11including formulas, microfilm, tapes, and data which are used, or
12intended for use, in violation of this chapter or chapter 69.41 or
1369.52 RCW;
14(f) All drug paraphernalia21 other than paraphernalia possessed,
15sold, or used solely to facilitate marijuana-related activities that
16are not violations of this chapter;
17(g) All moneys, negotiable instruments, securities, or other
18tangible or intangible property of value furnished or intended to be
19furnished by any person in exchange for a controlled substance in
20violation of this chapter or chapter 69.41 or 69.52 RCW, all tangible
21or intangible personal property, proceeds, or assets acquired in whole
22or in part with proceeds traceable to an exchange or series of
23exchanges in violation of this chapter or chapter 69.41 or 69.52 RCW,
24and all moneys, negotiable instruments, and securities used or intended
25to be used to facilitate any violation of this chapter or chapter 69.41
26or 69.52 RCW. A forfeiture of money, negotiable instruments,
27securities, or other tangible or intangible property encumbered by a
28bona fide security interest is subject to the interest of the secured
29party if, at the time the security interest was created, the secured
30party neither had knowledge of nor consented to the act or omission.
31No personal property may be forfeited under this subsection (1)(g), to
32the extent of the interest of an owner, by reason of any act or
33omission which that owner establishes was committed or omitted without
34the owner's knowledge or consent; and
35(h) All real property, including any right, title, and interest in
36the whole of any lot or tract of land, and any appurtenances or
37improvements which are being used with the knowledge of the owner for
38the manufacturing, compounding, processing, delivery, importing, or
1exporting of any controlled substance, or which have been acquired in
2whole or in part with proceeds traceable to an exchange or series of
3exchanges in violation of this chapter or chapter 69.41 or 69.52 RCW,
4if such activity is not less than a class C felony and a substantial
5nexus exists between the commercial production or sale of the
6controlled substance and the real property. However:
7(i) No property may be forfeited pursuant to this subsection
8(1)(h), to the extent of the interest of an owner, by reason of any act
9or omission committed or omitted without the owner's knowledge or
10consent;
11(ii) The bona fide gift of a controlled substance, legend drug, or
12imitation controlled substance shall not result in the forfeiture of
13real property;
14(iii) The possession of marijuana shall not result in the
15forfeiture of real property unless the marijuana is possessed for
16commercial purposes that are unlawful under Washington state law, the
17amount possessed is five or more plants or one pound or more of
18marijuana, and a substantial nexus exists between the possession of
19marijuana and the real property. In such a case, the intent of the
20offender shall be determined by the preponderance of the evidence,
21including the offender's prior criminal history, the amount of
22marijuana possessed by the offender, the sophistication of the activity
23or equipment used by the offender, whether the offender was licensed to
24produce, process, or sell marijuana, or was an employee of a licensed
25producer, processor, or retailer, and other evidence which demonstrates
26the offender's intent to engage in unlawful commercial activity;
27(iv) The unlawful sale of marijuana or a legend drug shall not
28result in the forfeiture of real property unless the sale was forty
29grams or more in the case of marijuana or one hundred dollars or more
30in the case of a legend drug, and a substantial nexus exists between
31the unlawful sale and the real property; and
32(v) A forfeiture of real property encumbered by a bona fide
33security interest is subject to the interest of the secured party if
34the secured party, at the time the security interest was created,
35neither had knowledge of nor consented to the act or omission.
36(2) Real or personal property subject to forfeiture under this
37chapter may be seized by any board inspector or law enforcement officer
38of this state upon process issued by any superior court having
1jurisdiction over the property. Seizure of real property shall include
2the filing of a lis pendens by the seizing agency. Real property
3seized under this section shall not be transferred or otherwise
4conveyed until ninety days after seizure or until a judgment of
5forfeiture is entered, whichever is later: PROVIDED, That real
6property seized under this section may be transferred or conveyed to
7any person or entity who acquires title by foreclosure or deed in lieu
8of foreclosure of a security interest. Seizure of personal property
9without process may be made if:
10(a) The seizure is incident to an arrest or a search under a search
11warrant or an inspection under an administrative inspection warrant;
12(b) The property subject to seizure has been the subject of a prior
13judgment in favor of the state in a criminal injunction or forfeiture
14proceeding based upon this chapter;
15(c) A board inspector or law enforcement officer has probable cause
16to believe that the property is directly or indirectly dangerous to
17health or safety; or
18(d) The board inspector or law enforcement officer has probable
19cause to believe that the property was used or is intended to be used
20in violation of this chapter.
21(3) In the event of seizure pursuant to subsection (2) of this
22section, proceedings for forfeiture shall be deemed commenced by the
23seizure. The law enforcement agency under whose authority the seizure
24was made shall cause notice to be served within fifteen days following
25the seizure on the owner of the property seized and the person in
26charge thereof and any person having any known right or interest
27therein, including any community property interest, of the seizure and
28intended forfeiture of the seized property. Service of notice of
29seizure of real property shall be made according to the rules of civil
30procedure. However, the state may not obtain a default judgment with
31respect to real property against a party who is served by substituted
32service absent an affidavit stating that a good faith effort has been
33made to ascertain if the defaulted party is incarcerated within the
34state, and that there is no present basis to believe that the party is
35incarcerated within the state. Notice of seizure in the case of
36property subject to a security interest that has been perfected by
37filing a financing statement in accordance with chapter 62A.9A RCW, or
38a certificate of title, shall be made by service upon the secured party
1or the secured party's assignee at the address shown on the financing
2statement or the certificate of title. The notice of seizure in other
3cases may be served by any method authorized by law or court rule
4including but not limited to service by certified mail with return
5receipt requested. Service by mail shall be deemed complete upon
6mailing within the fifteen day period following the seizure.
7(4) If no person notifies the seizing law enforcement agency in
8writing of the person's claim of ownership or right to possession of
9items specified in subsection (1)(d), (g), or (h) of this section
10within forty-five days of the service of notice from the seizing agency
11in the case of personal property and ninety days in the case of real
12property, the item seized shall be deemed forfeited. The community
13property interest in real property of a person whose spouse or domestic
14partner committed a violation giving rise to seizure of the real
15property may not be forfeited if the person did not participate in the
16violation.
17(5) If any person notifies the seizing law enforcement agency in
18writing of the person's claim of ownership or right to possession of
19items specified in subsection (1)(b), (c), (d), (e), (f), (g), or (h)
20of this section within forty-five days of the service of notice from
21the seizing agency in the case of personal property and ninety days in
22the case of real property, the person or persons shall be afforded a
23reasonable opportunity to be heard as to the claim or right. The
24notice of claim may be served by any method authorized by law or court
25rule including, but not limited to, service by first-class mail.
26Service by mail shall be deemed complete upon mailing within the forty-
27five day period following service of the notice of seizure in the case
28of personal property and within the ninety-day period following service
29of the notice of seizure in the case of real property. The hearing
30shall be before the chief law enforcement officer of the seizing agency
31or the chief law enforcement officer's designee, except where the
32seizing agency is a state agency as defined in RCW 34.12.020(4), the
33hearing shall be before the chief law enforcement officer of the
34seizing agency or an administrative law judge appointed under chapter
3534.12 RCW, except that any person asserting a claim or right may remove
36the matter to a court of competent jurisdiction. Removal of any matter
37involving personal property may only be accomplished according to the
38rules of civil procedure. The person seeking removal of the matter
1must serve process against the state, county, political subdivision, or
2municipality that operates the seizing agency, and any other party of
3interest, in accordance with RCW 4.28.080 or 4.92.020, within forty-
4five days after the person seeking removal has notified the seizing law
5enforcement agency of the person's claim of ownership or right to
6possession. The court to which the matter is to be removed shall be
7the district court when the aggregate value of personal property is
8within the jurisdictional limit set forth in RCW 3.66.020. A hearing
9before the seizing agency and any appeal therefrom shall be under Title
1034 RCW. In all cases, the burden of proof is upon the law enforcement
11agency to establish, by a preponderance of the evidence, that the
12property is subject to forfeiture.
13The seizing law enforcement agency shall promptly return the
14article or articles to the claimant upon a determination by the
15administrative law judge or court that the claimant is the present
16lawful owner or is lawfully entitled to possession thereof of items
17specified in subsection (1)(b), (c), (d), (e), (f), (g), or (h) of this
18section.
19(6) In any proceeding to forfeit property under this title, where
20the claimant substantially prevails, the claimant is entitled to
21reasonable attorneys' fees reasonably incurred by the claimant. In
22addition, in a court hearing between two or more claimants to the
23article or articles involved, the prevailing party is entitled to a
24judgment for costs and reasonable attorneys' fees.
25(7) When property is forfeited under this chapter the board or
26seizing law enforcement agency may:
27(a) Retain it for official use or upon application by any law
28enforcement agency of this state release such property to such agency
29for the exclusive use of enforcing the provisions of this chapter;
30(b) Sell that which is not required to be destroyed by law and
31which is not harmful to the public;
32(c) Request the appropriate sheriff or director of public safety to
33take custody of the property and remove it for disposition in
34accordance with law; or
35(d) Forward it to the drug enforcement administration for
36disposition.
37(8)(a) When property is forfeited, the seizing agency shall keep a
38record indicating the identity of the prior owner, if known, a
1description of the property, the disposition of the property, the value
2of the property at the time of seizure, and the amount of proceeds
3realized from disposition of the property.
4(b) Each seizing agency shall retain records of forfeited property
5for at least seven years.
6(c) Each seizing agency shall file a report including a copy of the
7records of forfeited property with the state treasurer each calendar
8quarter.
9(d) The quarterly report need not include a record of forfeited
10property that is still being held for use as evidence during the
11investigation or prosecution of a case or during the appeal from a
12conviction.
13(9)(a) By January 31st of each year, each seizing agency shall
14remit to the state treasurer an amount equal to ten percent of the net
15proceeds of any property forfeited during the preceding calendar year.
16Money remitted shall be deposited in the state general fund.
17(b) The net proceeds of forfeited property is the value of the
18forfeitable interest in the property after deducting the cost of
19satisfying any bona fide security interest to which the property is
20subject at the time of seizure; and in the case of sold property, after
21deducting the cost of sale, including reasonable fees or commissions
22paid to independent selling agents, and the cost of any valid
23landlord's claim for damages under subsection (15) of this section.
24(c) The value of sold forfeited property is the sale price. The
25value of retained forfeited property is the fair market value of the
26property at the time of seizure, determined when possible by reference
27to an applicable commonly used index, such as the index used by the
28department of licensing for valuation of motor vehicles. A seizing
29agency may use, but need not use, an independent qualified appraiser to
30determine the value of retained property. If an appraiser is used, the
31value of the property appraised is net of the cost of the appraisal.
32The value of destroyed property and retained firearms or illegal
33property is zero.
34(10) Forfeited property and net proceeds not required to be paid to
35the state treasurer shall be retained by the seizing law enforcement
36agency exclusively for the expansion and improvement of controlled
37substances related law enforcement activity. Money retained under this
38section may not be used to supplant preexisting funding sources.
1(11) Controlled substances listed in Schedule I, II, III, IV, and
2V that are possessed, transferred, sold, or offered for sale in
3violation of this chapter are contraband and shall be seized and
4summarily forfeited to the state. Controlled substances listed in
5Schedule I, II, III, IV, and V, which are seized or come into the
6possession of the board, the owners of which are unknown, are
7contraband and shall be summarily forfeited to the board.
8(12) Species of plants from which controlled substances in
9Schedules I and II may be derived which have been planted or cultivated
10in violation of this chapter, or of which the owners or cultivators are
11unknown, or which are wild growths, may be seized and summarily
12forfeited to the board.
13(13) The failure, upon demand by a board inspector or law
14enforcement officer, of the person in occupancy or in control of land
15or premises upon which the species of plants are growing or being
16stored to produce an appropriate registration or proof that he or she
17is the holder thereof constitutes authority for the seizure and
18forfeiture of the plants.
19(14) Upon the entry of an order of forfeiture of real property, the
20court shall forward a copy of the order to the assessor of the county
21in which the property is located. Orders for the forfeiture of real
22property shall be entered by the superior court, subject to court
23rules. Such an order shall be filed by the seizing agency in the
24county auditor's records in the county in which the real property is
25located.
26(15)(a) A landlord may assert a claim against proceeds from the
27sale of assets seized and forfeited under subsection (7)(b) of this
28section, only if:
29(((a))) (i) A law enforcement officer, while acting in his or her
30official capacity, directly caused damage to the complaining landlord's
31property while executing a search of a tenant's residence; and
32(((b))) (ii) The landlord has applied any funds remaining in the
33tenant's deposit, to which the landlord has a right under chapter 59.18
34RCW, to cover the damage directly caused by a law enforcement officer
35prior to asserting a claim under the provisions of this section;
36(((i))) (A) Only if the funds applied under (((b))) (a)(ii) of this
37subsection are insufficient to satisfy the damage directly caused by a
38law enforcement officer, may the landlord seek compensation for the
1damage by filing a claim against the governmental entity under whose
2authority the law enforcement agency operates within thirty days after
3the search;
4(((ii))) (B) Only if the governmental entity denies or fails to
5respond to the landlord's claim within sixty days of the date of
6filing, may the landlord collect damages under this subsection by
7filing within thirty days of denial or the expiration of the sixty-day
8period, whichever occurs first, a claim with the seizing law
9enforcement agency. The seizing law enforcement agency must notify the
10landlord of the status of the claim by the end of the thirty-day
11period. Nothing in this section requires the claim to be paid by the
12end of the sixty-day or thirty-day period.
13(((c))) (b) For any claim filed under (((b))) (a)(ii) of this
14subsection, the law enforcement agency shall pay the claim unless the
15agency provides substantial proof that the landlord either:
16(i) Knew or consented to actions of the tenant in violation of this
17chapter or chapter 69.41 or 69.52 RCW; or
18(ii) Failed to respond to a notification of the illegal activity,
19provided by a law enforcement agency under RCW 59.18.075, within seven
20days of receipt of notification of the illegal activity.
21(16) The landlord's claim for damages under subsection (15) of this
22section may not include a claim for loss of business and is limited to:
23(a) Damage to tangible property and clean-up costs;
24(b) The lesser of the cost of repair or fair market value of the
25damage directly caused by a law enforcement officer;
26(c) The proceeds from the sale of the specific tenant's property
27seized and forfeited under subsection (7)(b) of this section; and
28(d) The proceeds available after the seizing law enforcement agency
29satisfies any bona fide security interest in the tenant's property and
30costs related to sale of the tenant's property as provided by
31subsection (9)(b) of this section.
32(17) Subsections (15) and (16) of this section do not limit any
33other rights a landlord may have against a tenant to collect for
34damages. However, if a law enforcement agency satisfies a landlord's
35claim under subsection (15) of this section, the rights the landlord
36has against the tenant for damages directly caused by a law enforcement
37officer under the terms of the landlord and tenant's contract are
38subrogated to the law enforcement agency.
1PART IV
2DEDICATED MARIJUANA FUND
3NEW SECTION. Sec. 26. (1) There shall be a fund, known as the
4dedicated marijuana fund, which shall consist of all marijuana excise
5taxes, license fees, penalties, forfeitures, and all other moneys,
6income, or revenue received by the state liquor control board from
7marijuana-related activities. The state treasurer shall be custodian
8of the fund.
9(2) All moneys received by the state liquor control board or any
10employee thereof from marijuana-related activities shall be deposited
11each day in a depository approved by the state treasurer and
12transferred to the state treasurer to be credited to the dedicated
13marijuana fund.
14(3) Disbursements from the dedicated marijuana fund shall be on
15authorization of the state liquor control board or a duly authorized
16representative thereof.
17NEW SECTION. Sec. 27. (1) There is levied and collected a
18marijuana excise tax equal to twenty-five percent of the selling price
19on each wholesale sale in this state of marijuana by a licensed
20marijuana producer to a licensed marijuana processor or another
21licensed marijuana producer. This tax is the obligation of the
22licensed marijuana producer.
23(2) There is levied and collected a marijuana excise tax equal to
24twenty-five percent of the selling price on each wholesale sale in this
25state of useable marijuana or marijuana-infused product by a licensed
26marijuana processor to a licensed marijuana retailer. This tax is the
27obligation of the licensed marijuana processor.
28(3) There is levied and collected a marijuana excise tax equal to
29twenty-five percent of the selling price on each retail sale in this
30state of useable marijuana and marijuana-infused products. This tax is
31the obligation of the licensed marijuana retailer, is separate and in
32addition to general state and local sales and use taxes that apply to
33retail sales of tangible personal property, and is part of the total
34retail price to which general state and local sales and use taxes
35apply.
36(4) All revenues collected from the marijuana excise taxes imposed
37under subsections (1) through (3) of this section shall be deposited
1each day in a depository approved by the state treasurer and
2transferred to the state treasurer to be credited to the dedicated
3marijuana fund.
4(5) The state liquor control board shall regularly review the tax
5levels established under this section and make recommendations to the
6legislature as appropriate regarding adjustments that would further the
7goal of discouraging use while undercutting illegal market prices.
8NEW SECTION. Sec. 28. All marijuana excise taxes collected from
9sales of marijuana, useable marijuana, and marijuana-infused products
10under section 27 of this act, and the license fees, penalties, and
11forfeitures derived under this act from marijuana producer, marijuana
12processor, and marijuana retailer licenses shall every three months be
13disbursed by the state liquor control board as follows:
14(1) One hundred twenty-five thousand dollars to the department of
15social and health services to design and administer the Washington
16state healthy youth survey, analyze the collected data, and produce
17reports, in collaboration with the office of the superintendent of
18public instruction, department of health, department of commerce,
19family policy council, and state liquor control board. The survey
20shall be conducted at least every two years and include questions
21regarding, but not necessarily limited to, academic achievement, age at
22time of substance use initiation, antisocial behavior of friends,
23attitudes toward antisocial behavior, attitudes toward substance use,
24laws and community norms regarding antisocial behavior, family
25conflict, family management, parental attitudes toward substance use,
26peer rewarding of antisocial behavior, perceived risk of substance use,
27and rebelliousness. Funds disbursed under this subsection may be used
28to expand administration of the healthy youth survey to student
29populations attending institutions of higher education in Washington;
30(2) Fifty thousand dollars to the department of social and health
31services for the purpose of contracting with the Washington state
32institute for public policy to conduct the cost-benefit evaluation and
33produce the reports described in section 30 of this act. This
34appropriation shall end after production of the final report required
35by section 30 of this act;
36(3) Five thousand dollars to the University of Washington alcohol
37and drug abuse institute for the creation, maintenance, and timely
1updating of web-based public education materials providing medically
2and scientifically accurate information about the health and safety
3risks posed by marijuana use;
4(4) An amount not exceeding one million two hundred fifty thousand
5dollars to the state liquor control board as is necessary for
6administration of this act;
7(5) Of the funds remaining after the disbursements identified in
8subsections (1) through (4) of this section:
9(a) Fifteen percent to the department of social and health services
10division of behavioral health and recovery for implementation and
11maintenance of programs and practices aimed at the prevention or
12reduction of maladaptive substance use, substance-use disorder,
13substance abuse or substance dependence, as these terms are defined in
14the Diagnostic and Statistical Manual of Mental Disorders, among middle
15school and high school age students, whether as an explicit goal of a
16given program or practice or as a consistently corresponding effect of
17its implementation; PROVIDED, That:
18(i) Of the funds disbursed under (a) of this subsection, at least
19eighty-five percent must be directed to evidence-based and cost-
20beneficial programs and practices that produce objectively measurable
21results; and
22(ii) Up to fifteen percent of the funds disbursed under (a) of this
23subsection may be directed to research-based and emerging best
24practices or promising practices.
25In deciding which programs and practices to fund, the secretary of
26the department of social and health services shall consult, at least
27annually, with the University of Washington's social development
28research group and the University of Washington's alcohol and drug
29abuse institute;
30(b) Ten percent to the department of health for the creation,
31implementation, operation, and management of a marijuana education and
32public health program that contains the following:
33(i) A marijuana use public health hotline that provides referrals
34to substance abuse treatment providers, utilizes evidence-based or
35research-based public health approaches to minimizing the harms
36associated with marijuana use, and does not solely advocate an
37abstinence-only approach;
1(ii) A grants program for local health departments or other local
2community agencies that supports development and implementation of
3coordinated intervention strategies for the prevention and reduction of
4marijuana use by youth; and
5(iii) Media-based education campaigns across television, internet,
6radio, print, and out-of-home advertising, separately targeting youth
7and adults, that provide medically and scientifically accurate
8information about the health and safety risks posed by marijuana use;
9(c) Six-tenths of one percent to the University of Washington and
10four-tenths of one percent to Washington State University for research
11on the short and long-term effects of marijuana use, to include but not
12be limited to formal and informal methods for estimating and measuring
13intoxication and impairment, and for the dissemination of such
14research;
15(d) Fifty percent to the state basic health plan trust account to
16be administered by the Washington basic health plan administrator and
17used as provided under chapter 70.47 RCW;
18(e) Five percent to the Washington state health care authority to
19be expended exclusively through contracts with community health centers
20to provide primary health and dental care services, migrant health
21services, and maternity health care services as provided under RCW
2241.05.220;
23(f) Three-tenths of one percent to the office of the superintendent
24of public instruction to fund grants to building bridges programs under
25chapter 28A.175 RCW; and
26(g) The remainder to the general fund.
27NEW SECTION. Sec. 29. The department of social and health
28services and the department of health shall, by December 1, 2013, adopt
29rules not inconsistent with the spirit of this act as are deemed
30necessary or advisable to carry into effect the provisions of section
3128 of this act.
32NEW SECTION. Sec. 30. (1) The Washington state institute for
33public policy shall conduct cost-benefit evaluations of the
34implementation of this act. A preliminary report, and recommendations
35to appropriate committees of the legislature, shall be made by
1September 1, 2015, and the first final report with recommendations by
2September 1, 2017. Subsequent reports shall be due September 1, 2022,
3and September 1, 2032.
4(2) The evaluation of the implementation of this act shall include,
5but not necessarily be limited to, consideration of the following
6factors:
7(a) Public health, to include but not be limited to:
8(i) Health costs associated with marijuana use;
9(ii) Health costs associated with criminal prohibition of
10marijuana, including lack of product safety or quality control
11regulations and the relegation of marijuana to the same illegal market
12as potentially more dangerous substances; and
13(iii) The impact of increased investment in the research,
14evaluation, education, prevention and intervention programs, practices,
15and campaigns identified in section 16 of this act on rates of
16marijuana-related maladaptive substance use and diagnosis of marijuana-
17related substance-use disorder, substance abuse, or substance
18dependence, as these terms are defined in the Diagnostic and
19Statistical Manual of Mental Disorders;
20(b) Public safety, to include but not be limited to:
21(i) Public safety issues relating to marijuana use; and
22(ii) Public safety issues relating to criminal prohibition of
23marijuana;
24(c) Youth and adult rates of the following:
25(i) Marijuana use;
26(ii) Maladaptive use of marijuana; and
27(iii) Diagnosis of marijuana-related substance-use disorder,
28substance abuse, or substance dependence, including primary, secondary,
29and tertiary choices of substance;
30(d) Economic impacts in the private and public sectors, including
31but not limited to:
32(i) Jobs creation;
33(ii) Workplace safety;
34(iii) Revenues; and
35(iv) Taxes generated for state and local budgets;
36(e) Criminal justice impacts, to include but not be limited to:
37(i) Use of public resources like law enforcement officers and
38equipment, prosecuting attorneys and public defenders, judges and court
1staff, the Washington state patrol crime lab and identification and
2criminal history section, jails and prisons, and misdemeanant and felon
3supervision officers to enforce state criminal laws regarding
4marijuana; and
5(ii) Short and long-term consequences of involvement in the
6criminal justice system for persons accused of crimes relating to
7marijuana, their families, and their communities; and
8(f) State and local agency administrative costs and revenues.
9PART V
10DRIVING UNDER THE INFLUENCE OF MARIJUANA
11Sec. 31. RCW 46.20.308 and 2008 c 282 s 2 are each amended to read
12as follows:
13(1) Any person who operates a motor vehicle within this state is
14deemed to have given consent, subject to the provisions of RCW
1546.61.506, to a test or tests of his or her breath or blood for the
16purpose of determining the alcohol concentration, THC concentration, or
17presence of any drug in his or her breath or blood if arrested for any
18offense where, at the time of the arrest, the arresting officer has
19reasonable grounds to believe the person had been driving or was in
20actual physical control of a motor vehicle while under the influence of
21intoxicating liquor or any drug or was in violation of RCW 46.61.503.
22Neither consent nor this section precludes a police officer from
23obtaining a search warrant for a person's breath or blood.
24(2) The test or tests of breath shall be administered at the
25direction of a law enforcement officer having reasonable grounds to
26believe the person to have been driving or in actual physical control
27of a motor vehicle within this state while under the influence of
28intoxicating liquor or any drug or the person to have been driving or
29in actual physical control of a motor vehicle while having alcohol or
30THC in a concentration in violation of RCW 46.61.503 in his or her
31system and being under the age of twenty-one. However, in those
32instances where the person is incapable due to physical injury,
33physical incapacity, or other physical limitation, of providing a
34breath sample or where the person is being treated in a hospital,
35clinic, doctor's office, emergency medical vehicle, ambulance, or other
36similar facility or where the officer has reasonable grounds to believe
1that the person is under the influence of a drug, a blood test shall be
2administered by a qualified person as provided in RCW 46.61.506(5).
3The officer shall inform the person of his or her right to refuse the
4breath or blood test, and of his or her right to have additional tests
5administered by any qualified person of his or her choosing as provided
6in RCW 46.61.506. The officer shall warn the driver, in substantially
7the following language, that:
8(a) If the driver refuses to take the test, the driver's license,
9permit, or privilege to drive will be revoked or denied for at least
10one year; and
11(b) If the driver refuses to take the test, the driver's refusal to
12take the test may be used in a criminal trial; and
13(c) If the driver submits to the test and the test is administered,
14the driver's license, permit, or privilege to drive will be suspended,
15revoked, or denied for at least ninety days if:
16(i) The driver is age twenty-one or over and the test indicates
17either that the alcohol concentration of the driver's breath or blood
18is 0.08 or more((,)) or that the THC concentration of the driver's
19blood is 5.00 or more; or ((if))
20(ii) The driver is under age twenty-one and the test indicates
21either that the alcohol concentration of the driver's breath or blood
22is 0.02 or more((,)) or that the THC concentration of the driver's
23blood is above 0.00; or ((if))
24(iii) The driver is under age twenty-one and the driver is in
25violation of RCW 46.61.502 or 46.61.504; and
26(d) If the driver's license, permit, or privilege to drive is
27suspended, revoked, or denied the driver may be eligible to immediately
28apply for an ignition interlock driver's license.
29(3) Except as provided in this section, the test administered shall
30be of the breath only. If an individual is unconscious or is under
31arrest for the crime of vehicular homicide as provided in RCW 46.61.520
32or vehicular assault as provided in RCW 46.61.522, or if an individual
33is under arrest for the crime of driving while under the influence of
34intoxicating liquor or drugs as provided in RCW 46.61.502, which arrest
35results from an accident in which there has been serious bodily injury
36to another person, a breath or blood test may be administered without
37the consent of the individual so arrested.
1(4) Any person who is dead, unconscious, or who is otherwise in a
2condition rendering him or her incapable of refusal, shall be deemed
3not to have withdrawn the consent provided by subsection (1) of this
4section and the test or tests may be administered, subject to the
5provisions of RCW 46.61.506, and the person shall be deemed to have
6received the warnings required under subsection (2) of this section.
7(5) If, following his or her arrest and receipt of warnings under
8subsection (2) of this section, the person arrested refuses upon the
9request of a law enforcement officer to submit to a test or tests of
10his or her breath or blood, no test shall be given except as authorized
11under subsection (3) or (4) of this section.
12(6) If, after arrest and after the other applicable conditions and
13requirements of this section have been satisfied, a test or tests of
14the person's blood or breath is administered and the test results
15indicate that the alcohol concentration of the person's breath or blood
16is 0.08 or more, or the THC concentration of the person's blood is 5.00
17or more, if the person is age twenty-one or over, or that the alcohol
18concentration of the person's breath or blood is 0.02 or more, or the
19THC concentration of the person's blood is above 0.00, if the person is
20under the age of twenty-one, or the person refuses to submit to a test,
21the arresting officer or other law enforcement officer at whose
22direction any test has been given, or the department, where applicable,
23if the arrest results in a test of the person's blood, shall:
24(a) Serve notice in writing on the person on behalf of the
25department of its intention to suspend, revoke, or deny the person's
26license, permit, or privilege to drive as required by subsection (7) of
27this section;
28(b) Serve notice in writing on the person on behalf of the
29department of his or her right to a hearing, specifying the steps he or
30she must take to obtain a hearing as provided by subsection (8) of this
31section and that the person waives the right to a hearing if he or she
32receives an ignition interlock driver's license;
33(c) Mark the person's Washington state driver's license or permit
34to drive, if any, in a manner authorized by the department;
35(d) Serve notice in writing that the marked license or permit, if
36any, is a temporary license that is valid for sixty days from the date
37of arrest or from the date notice has been given in the event notice is
38given by the department following a blood test, or until the
1suspension, revocation, or denial of the person's license, permit, or
2privilege to drive is sustained at a hearing pursuant to subsection (8)
3of this section, whichever occurs first. No temporary license is valid
4to any greater degree than the license or permit that it replaces; and
5(e) Immediately notify the department of the arrest and transmit to
6the department within seventy-two hours, except as delayed as the
7result of a blood test, a sworn report or report under a declaration
8authorized by RCW 9A.72.085 that states:
9(i) That the officer had reasonable grounds to believe the arrested
10person had been driving or was in actual physical control of a motor
11vehicle within this state while under the influence of intoxicating
12liquor or drugs, or both, or was under the age of twenty-one years and
13had been driving or was in actual physical control of a motor vehicle
14while having an alcohol or THC concentration in violation of RCW
1546.61.503;
16(ii) That after receipt of the warnings required by subsection (2)
17of this section the person refused to submit to a test of his or her
18blood or breath, or a test was administered and the results indicated
19that the alcohol concentration of the person's breath or blood was 0.08
20or more, or the THC concentration of the person's blood was 5.00 or
21more, if the person is age twenty-one or over, or that the alcohol
22concentration of the person's breath or blood was 0.02 or more, or the
23THC concentration of the person's blood was above 0.00, if the person
24is under the age of twenty-one; and
25(iii) Any other information that the director may require by rule.
26(7) The department of licensing, upon the receipt of a sworn report
27or report under a declaration authorized by RCW 9A.72.085 under
28subsection (6)(e) of this section, shall suspend, revoke, or deny the
29person's license, permit, or privilege to drive or any nonresident
30operating privilege, as provided in RCW 46.20.3101, such suspension,
31revocation, or denial to be effective beginning sixty days from the
32date of arrest or from the date notice has been given in the event
33notice is given by the department following a blood test, or when
34sustained at a hearing pursuant to subsection (8) of this section,
35whichever occurs first.
36(8) A person receiving notification under subsection (6)(b) of this
37section may, within twenty days after the notice has been given,
38request in writing a formal hearing before the department. The person
1shall pay a fee of two hundred dollars as part of the request. If the
2request is mailed, it must be postmarked within twenty days after
3receipt of the notification. Upon timely receipt of such a request for
4a formal hearing, including receipt of the required two hundred dollar
5fee, the department shall afford the person an opportunity for a
6hearing. The department may waive the required two hundred dollar fee
7if the person is an indigent as defined in RCW 10.101.010. Except as
8otherwise provided in this section, the hearing is subject to and shall
9be scheduled and conducted in accordance with RCW 46.20.329 and
1046.20.332. The hearing shall be conducted in the county of the arrest,
11except that all or part of the hearing may, at the discretion of the
12department, be conducted by telephone or other electronic means. The
13hearing shall be held within sixty days following the arrest or
14following the date notice has been given in the event notice is given
15by the department following a blood test, unless otherwise agreed to by
16the department and the person, in which case the action by the
17department shall be stayed, and any valid temporary license marked
18under subsection (6)(c) of this section extended, if the person is
19otherwise eligible for licensing. For the purposes of this section,
20the scope of the hearing shall cover the issues of whether a law
21enforcement officer had reasonable grounds to believe the person had
22been driving or was in actual physical control of a motor vehicle
23within this state while under the influence of intoxicating liquor or
24any drug or had been driving or was in actual physical control of a
25motor vehicle within this state while having alcohol in his or her
26system in a concentration of 0.02 or more, or THC in his or her system
27in a concentration above 0.00, if the person was under the age of
28twenty-one, whether the person was placed under arrest, and (a) whether
29the person refused to submit to the test or tests upon request of the
30officer after having been informed that such refusal would result in
31the revocation of the person's license, permit, or privilege to drive,
32or (b) if a test or tests were administered, whether the applicable
33requirements of this section were satisfied before the administration
34of the test or tests, whether the person submitted to the test or
35tests, or whether a test was administered without express consent as
36permitted under this section, and whether the test or tests indicated
37that the alcohol concentration of the person's breath or blood was 0.08
38or more, or the THC concentration of the person's blood was 5.00 or
1more, if the person was age twenty-one or over at the time of the
2arrest, or that the alcohol concentration of the person's breath or
3blood was 0.02 or more, or the THC concentration of the person's blood
4was above 0.00, if the person was under the age of twenty-one at the
5time of the arrest. The sworn report or report under a declaration
6authorized by RCW 9A.72.085 submitted by a law enforcement officer is
7prima facie evidence that the officer had reasonable grounds to believe
8the person had been driving or was in actual physical control of a
9motor vehicle within this state while under the influence of
10intoxicating liquor or drugs, or both, or the person had been driving
11or was in actual physical control of a motor vehicle within this state
12while having alcohol in his or her system in a concentration of 0.02 or
13more, or THC in his or her system in a concentration above 0.00, and
14was under the age of twenty-one and that the officer complied with the
15requirements of this section.
16A hearing officer shall conduct the hearing, may issue subpoenas
17for the attendance of witnesses and the production of documents, and
18shall administer oaths to witnesses. The hearing officer shall not
19issue a subpoena for the attendance of a witness at the request of the
20person unless the request is accompanied by the fee required by RCW
215.56.010 for a witness in district court. The sworn report or report
22under a declaration authorized by RCW 9A.72.085 of the law enforcement
23officer and any other evidence accompanying the report shall be
24admissible without further evidentiary foundation and the
25certifications authorized by the criminal rules for courts of limited
26jurisdiction shall be admissible without further evidentiary
27foundation. The person may be represented by counsel, may question
28witnesses, may present evidence, and may testify. The department shall
29order that the suspension, revocation, or denial either be rescinded or
30sustained.
31(9) If the suspension, revocation, or denial is sustained after
32such a hearing, the person whose license, privilege, or permit is
33suspended, revoked, or denied has the right to file a petition in the
34superior court of the county of arrest to review the final order of
35revocation by the department in the same manner as an appeal from a
36decision of a court of limited jurisdiction. Notice of appeal must be
37filed within thirty days after the date the final order is served or
38the right to appeal is waived. Notwithstanding RCW 46.20.334, RALJ
11.1, or other statutes or rules referencing de novo review, the appeal
2shall be limited to a review of the record of the administrative
3hearing. The appellant must pay the costs associated with obtaining
4the record of the hearing before the hearing officer. The filing of
5the appeal does not stay the effective date of the suspension,
6revocation, or denial. A petition filed under this subsection must
7include the petitioner's grounds for requesting review. Upon granting
8petitioner's request for review, the court shall review the
9department's final order of suspension, revocation, or denial as
10expeditiously as possible. The review must be limited to a
11determination of whether the department has committed any errors of
12law. The superior court shall accept those factual determinations
13supported by substantial evidence in the record: (a) That were
14expressly made by the department; or (b) that may reasonably be
15inferred from the final order of the department. The superior court
16may reverse, affirm, or modify the decision of the department or remand
17the case back to the department for further proceedings. The decision
18of the superior court must be in writing and filed in the clerk's
19office with the other papers in the case. The court shall state the
20reasons for the decision. If judicial relief is sought for a stay or
21other temporary remedy from the department's action, the court shall
22not grant such relief unless the court finds that the appellant is
23likely to prevail in the appeal and that without a stay the appellant
24will suffer irreparable injury. If the court stays the suspension,
25revocation, or denial it may impose conditions on such stay.
26(10)(a) If a person whose driver's license, permit, or privilege to
27drive has been or will be suspended, revoked, or denied under
28subsection (7) of this section, other than as a result of a breath or
29blood test refusal, and who has not committed an offense for which he
30or she was granted a deferred prosecution under chapter 10.05 RCW,
31petitions a court for a deferred prosecution on criminal charges
32arising out of the arrest for which action has been or will be taken
33under subsection (7) of this section, or notifies the department of
34licensing of the intent to seek such a deferred prosecution, then the
35license suspension or revocation shall be stayed pending entry of the
36deferred prosecution. The stay shall not be longer than one hundred
37fifty days after the date charges are filed, or two years after the
38date of the arrest, whichever time period is shorter. If the court
1stays the suspension, revocation, or denial, it may impose conditions
2on such stay. If the person is otherwise eligible for licensing, the
3department shall issue a temporary license, or extend any valid
4temporary license marked under subsection (6) of this section, for the
5period of the stay. If a deferred prosecution treatment plan is not
6recommended in the report made under RCW 10.05.050, or if treatment is
7rejected by the court, or if the person declines to accept an offered
8treatment plan, or if the person violates any condition imposed by the
9court, then the court shall immediately direct the department to cancel
10the stay and any temporary marked license or extension of a temporary
11license issued under this subsection.
12(b) A suspension, revocation, or denial imposed under this section,
13other than as a result of a breath or blood test refusal, shall be
14stayed if the person is accepted for deferred prosecution as provided
15in chapter 10.05 RCW for the incident upon which the suspension,
16revocation, or denial is based. If the deferred prosecution is
17terminated, the stay shall be lifted and the suspension, revocation, or
18denial reinstated. If the deferred prosecution is completed, the stay
19shall be lifted and the suspension, revocation, or denial canceled.
20(c) The provisions of (b) of this subsection relating to a stay of
21a suspension, revocation, or denial and the cancellation of any
22suspension, revocation, or denial do not apply to the suspension,
23revocation, denial, or disqualification of a person's commercial
24driver's license or privilege to operate a commercial motor vehicle.
25(11) When it has been finally determined under the procedures of
26this section that a nonresident's privilege to operate a motor vehicle
27in this state has been suspended, revoked, or denied, the department
28shall give information in writing of the action taken to the motor
29vehicle administrator of the state of the person's residence and of any
30state in which he or she has a license.
31Sec. 32. RCW 46.20.3101 and 2004 c 95 s 4 and 2004 c 68 s 3 are
32each reenacted and amended to read as follows:
33Pursuant to RCW 46.20.308, the department shall suspend, revoke, or
34deny the arrested person's license, permit, or privilege to drive as
35follows:
36(1) In the case of a person who has refused a test or tests:
1(a) For a first refusal within seven years, where there has not
2been a previous incident within seven years that resulted in
3administrative action under this section, revocation or denial for one
4year;
5(b) For a second or subsequent refusal within seven years, or for
6a first refusal where there has been one or more previous incidents
7within seven years that have resulted in administrative action under
8this section, revocation or denial for two years or until the person
9reaches age twenty-one, whichever is longer.
10(2) In the case of an incident where a person has submitted to or
11been administered a test or tests indicating that the alcohol
12concentration of the person's breath or blood was 0.08 or more, or that
13the THC concentration of the person's blood was 5.00 or more:
14(a) For a first incident within seven years, where there has not
15been a previous incident within seven years that resulted in
16administrative action under this section, suspension for ninety days;
17(b) For a second or subsequent incident within seven years,
18revocation or denial for two years.
19(3) In the case of an incident where a person under age twenty-one
20has submitted to or been administered a test or tests indicating that
21the alcohol concentration of the person's breath or blood was 0.02 or
22more, or that the THC concentration of the person's blood was above
230.00:
24(a) For a first incident within seven years, suspension or denial
25for ninety days;
26(b) For a second or subsequent incident within seven years,
27revocation or denial for one year or until the person reaches age
28twenty-one, whichever is longer.
29(4) The department shall grant credit on a day-for-day basis for
30any portion of a suspension, revocation, or denial already served under
31this section for a suspension, revocation, or denial imposed under RCW
3246.61.5055 arising out of the same incident.
33Sec. 33. RCW 46.61.502 and 2011 c 293 s 2 are each amended to read
34as follows:
35(1) A person is guilty of driving while under the influence of
36intoxicating liquor, marijuana, or any drug if the person drives a
37vehicle within this state:
1(a) And the person has, within two hours after driving, an alcohol
2concentration of 0.08 or higher as shown by analysis of the person's
3breath or blood made under RCW 46.61.506; or
4(b) The person has, within two hours after driving, a THC
5concentration of 5.00 or higher as shown by analysis of the person's
6blood made under RCW 46.61.506; or
7(c) While the person is under the influence of or affected by
8intoxicating liquor, marijuana, or any drug; or
9(((c))) (d) While the person is under the combined influence of or
10affected by intoxicating liquor, marijuana, and any drug.
11(2) The fact that a person charged with a violation of this section
12is or has been entitled to use a drug under the laws of this state
13shall not constitute a defense against a charge of violating this
14section.
15(3)(a) It is an affirmative defense to a violation of subsection
16(1)(a) of this section, which the defendant must prove by a
17preponderance of the evidence, that the defendant consumed a sufficient
18quantity of alcohol after the time of driving and before the
19administration of an analysis of the person's breath or blood to cause
20the defendant's alcohol concentration to be 0.08 or more within two
21hours after driving. The court shall not admit evidence of this
22defense unless the defendant notifies the prosecution prior to the
23omnibus or pretrial hearing in the case of the defendant's intent to
24assert the affirmative defense.
25(b) It is an affirmative defense to a violation of subsection
26(1)(b) of this section, which the defendant must prove by a
27preponderance of the evidence, that the defendant consumed a sufficient
28quantity of marijuana after the time of driving and before the
29administration of an analysis of the person's blood to cause the
30defendant's THC concentration to be 5.00 or more within two hours after
31driving. The court shall not admit evidence of this defense unless the
32defendant notifies the prosecution prior to the omnibus or pretrial
33hearing in the case of the defendant's intent to assert the affirmative
34defense.
35(4)(a) Analyses of blood or breath samples obtained more than two
36hours after the alleged driving may be used as evidence that within two
37hours of the alleged driving, a person had an alcohol concentration of
380.08 or more in violation of subsection (1)(a) of this section, and in
1any case in which the analysis shows an alcohol concentration above
20.00 may be used as evidence that a person was under the influence of
3or affected by intoxicating liquor or any drug in violation of
4subsection (1)(((b) or)) (c) or (d) of this section.
5(b) Analyses of blood samples obtained more than two hours after
6the alleged driving may be used as evidence that within two hours of
7the alleged driving, a person had a THC concentration of 5.00 or more
8in violation of subsection (1)(b) of this section, and in any case in
9which the analysis shows a THC concentration above 0.00 may be used as
10evidence that a person was under the influence of or affected by
11marijuana in violation of subsection (1)(c) or (d) of this section.
12(5) Except as provided in subsection (6) of this section, a
13violation of this section is a gross misdemeanor.
14(6) It is a class C felony punishable under chapter 9.94A RCW, or
15chapter 13.40 RCW if the person is a juvenile, if:
16(a) The person has four or more prior offenses within ten years as
17defined in RCW 46.61.5055; or
18(b) The person has ever previously been convicted of:
19(i) Vehicular homicide while under the influence of intoxicating
20liquor or any drug, RCW 46.61.520(1)(a);
21(ii) Vehicular assault while under the influence of intoxicating
22liquor or any drug, RCW 46.61.522(1)(b);
23(iii) An out-of-state offense comparable to the offense specified
24in (b)(i) or (ii) of this subsection; or
25(iv) A violation of this subsection (6) or RCW 46.61.504(6).
26Sec. 34. RCW 46.61.503 and 1998 c 213 s 4, 1998 c 207 s 5, and
271998 c 41 s 8 are each reenacted and amended to read as follows:
28(1) Notwithstanding any other provision of this title, a person is
29guilty of driving or being in physical control of a motor vehicle after
30consuming alcohol or marijuana if the person operates or is in physical
31control of a motor vehicle within this state and the person:
32(a) Is under the age of twenty-one; and
33(b) Has, within two hours after operating or being in physical
34control of the motor vehicle, either:
35(i) An alcohol concentration of at least 0.02 but less than the
36concentration specified in RCW 46.61.502, as shown by analysis of the
37person's breath or blood made under RCW 46.61.506; or
1(ii) A THC concentration above 0.00 but less than the concentration
2specified in RCW 46.61.502, as shown by analysis of the person's blood
3made under RCW 46.61.506.
4(2) It is an affirmative defense to a violation of subsection (1)
5of this section, which the defendant must prove by a preponderance of
6the evidence, that the defendant consumed a sufficient quantity of
7alcohol or marijuana after the time of driving or being in physical
8control and before the administration of an analysis of the person's
9breath or blood to cause the defendant's alcohol or THC concentration
10to be in violation of subsection (1) of this section within two hours
11after driving or being in physical control. The court shall not admit
12evidence of this defense unless the defendant notifies the prosecution
13prior to the earlier of: (a) Seven days prior to trial; or (b) the
14omnibus or pretrial hearing in the case of the defendant's intent to
15assert the affirmative defense.
16(3) Analyses of blood or breath samples obtained more than two
17hours after the alleged driving or being in physical control may be
18used as evidence that within two hours of the alleged driving or being
19in physical control, a person had an alcohol or THC concentration in
20violation of subsection (1) of this section.
21(4) A violation of this section is a misdemeanor.
22Sec. 35. RCW 46.61.504 and 2011 c 293 s 3 are each amended to read
23as follows:
24(1) A person is guilty of being in actual physical control of a
25motor vehicle while under the influence of intoxicating liquor or any
26drug if the person has actual physical control of a vehicle within this
27state:
28(a) And the person has, within two hours after being in actual
29physical control of the vehicle, an alcohol concentration of 0.08 or
30higher as shown by analysis of the person's breath or blood made under
31RCW 46.61.506; or
32(b) The person has, within two hours after being in actual physical
33control of a vehicle, a THC concentration of 5.00 or higher as shown by
34analysis of the person's blood made under RCW 46.61.506; or
35(c) While the person is under the influence of or affected by
36intoxicating liquor or any drug; or
1(((c))) (d) While the person is under the combined influence of or
2affected by intoxicating liquor and any drug.
3(2) The fact that a person charged with a violation of this section
4is or has been entitled to use a drug under the laws of this state does
5not constitute a defense against any charge of violating this section.
6No person may be convicted under this section if, prior to being
7pursued by a law enforcement officer, the person has moved the vehicle
8safely off the roadway.
9(3)(a) It is an affirmative defense to a violation of subsection
10(1)(a) of this section which the defendant must prove by a
11preponderance of the evidence that the defendant consumed a sufficient
12quantity of alcohol after the time of being in actual physical control
13of the vehicle and before the administration of an analysis of the
14person's breath or blood to cause the defendant's alcohol concentration
15to be 0.08 or more within two hours after being in such control. The
16court shall not admit evidence of this defense unless the defendant
17notifies the prosecution prior to the omnibus or pretrial hearing in
18the case of the defendant's intent to assert the affirmative defense.
19(b) It is an affirmative defense to a violation of subsection
20(1)(b) of this section, which the defendant must prove by a
21preponderance of the evidence, that the defendant consumed a sufficient
22quantity of marijuana after the time of being in actual physical
23control of the vehicle and before the administration of an analysis of
24the person's blood to cause the defendant's THC concentration to be
255.00 or more within two hours after being in control of the vehicle.
26The court shall not admit evidence of this defense unless the defendant
27notifies the prosecution prior to the omnibus or pretrial hearing in
28the case of the defendant's intent to assert the affirmative defense.
29(4)(a) Analyses of blood or breath samples obtained more than two
30hours after the alleged being in actual physical control of a vehicle
31may be used as evidence that within two hours of the alleged being in
32such control, a person had an alcohol concentration of 0.08 or more in
33violation of subsection (1)(a) of this section, and in any case in
34which the analysis shows an alcohol concentration above 0.00 may be
35used as evidence that a person was under the influence of or affected
36by intoxicating liquor or any drug in violation of subsection (1)(((b)
37or)) (c) or (d) of this section.
1(b) Analyses of blood samples obtained more than two hours after
2the alleged being in actual physical control of a vehicle may be used
3as evidence that within two hours of the alleged being in control of
4the vehicle, a person had a THC concentration of 5.00 or more in
5violation of subsection (1)(b) of this section, and in any case in
6which the analysis shows a THC concentration above 0.00 may be used as
7evidence that a person was under the influence of or affected by
8marijuana in violation of subsection (1)(c) or (d) of this section.
9(5) Except as provided in subsection (6) of this section, a
10violation of this section is a gross misdemeanor.
11(6) It is a class C felony punishable under chapter 9.94A RCW, or
12chapter 13.40 RCW if the person is a juvenile, if:
13(a) The person has four or more prior offenses within ten years as
14defined in RCW 46.61.5055; or
15(b) The person has ever previously been convicted of:
16(i) Vehicular homicide while under the influence of intoxicating
17liquor or any drug, RCW 46.61.520(1)(a);
18(ii) Vehicular assault while under the influence of intoxicating
19liquor or any drug, RCW 46.61.522(1)(b);
20(iii) An out-of-state offense comparable to the offense specified
21in (b)(i) or (ii) of this subsection; or
22(iv) A violation of this subsection (6) or RCW 46.61.502(6).
23Sec. 36. RCW 46.61.50571 and 2000 c 52 s 1 are each amended to
24read as follows:
25(1) A defendant who is charged with an offense involving driving
26while under the influence as defined in RCW 46.61.502, driving under
27age twenty-one after consuming alcohol or marijuana as defined in RCW
2846.61.503, or being in physical control of a vehicle while under the
29influence as defined in RCW 46.61.504, shall be required to appear in
30person before a judicial officer within one judicial day after the
31arrest if the defendant is served with a citation or complaint at the
32time of the arrest. A court may by local court rule waive the
33requirement for appearance within one judicial day if it provides for
34the appearance at the earliest practicable day following arrest and
35establishes the method for identifying that day in the rule.
36(2) A defendant who is charged with an offense involving driving
37while under the influence as defined in RCW 46.61.502, driving under
1age twenty-one after consuming alcohol or marijuana as defined in RCW
246.61.503, or being in physical control of a vehicle while under the
3influence as defined in RCW 46.61.504, and who is not served with a
4citation or complaint at the time of the incident, shall appear in
5court for arraignment in person as soon as practicable, but in no event
6later than fourteen days after the next day on which court is in
7session following the issuance of the citation or the filing of the
8complaint or information.
9(3) At the time of an appearance required by this section, the
10court shall determine the necessity of imposing conditions of pretrial
11release according to the procedures established by court rule for a
12preliminary appearance or an arraignment.
13(4) Appearances required by this section are mandatory and may not
14be waived.
15Sec. 37. RCW 46.61.506 and 2010 c 53 s 1 are each amended to read
16as follows:
17(1) Upon the trial of any civil or criminal action or proceeding
18arising out of acts alleged to have been committed by any person while
19driving or in actual physical control of a vehicle while under the
20influence of intoxicating liquor or any drug, if the person's alcohol
21concentration is less than 0.08 or the person's THC concentration is
22less than 5.00, it is evidence that may be considered with other
23competent evidence in determining whether the person was under the
24influence of intoxicating liquor or any drug.
25(2)(a) The breath analysis of the person's alcohol concentration
26shall be based upon grams of alcohol per two hundred ten liters of
27breath.
28(b) The blood analysis of the person's THC concentration shall be
29based upon nanograms per milliliter of whole blood.
30(c) The foregoing provisions of this section shall not be construed
31as limiting the introduction of any other competent evidence bearing
32upon the question whether the person was under the influence of
33intoxicating liquor or any drug.
34(3) Analysis of the person's blood or breath to be considered valid
35under the provisions of this section or RCW 46.61.502 or 46.61.504
36shall have been performed according to methods approved by the state
37toxicologist and by an individual possessing a valid permit issued by
1the state toxicologist for this purpose. The state toxicologist is
2directed to approve satisfactory techniques or methods, to supervise
3the examination of individuals to ascertain their qualifications and
4competence to conduct such analyses, and to issue permits which shall
5be subject to termination or revocation at the discretion of the state
6toxicologist.
7(4)(a) A breath test performed by any instrument approved by the
8state toxicologist shall be admissible at trial or in an administrative
9proceeding if the prosecution or department produces prima facie
10evidence of the following:
11(i) The person who performed the test was authorized to perform
12such test by the state toxicologist;
13(ii) The person being tested did not vomit or have anything to eat,
14drink, or smoke for at least fifteen minutes prior to administration of
15the test;
16(iii) The person being tested did not have any foreign substances,
17not to include dental work, fixed or removable, in his or her mouth at
18the beginning of the fifteen-minute observation period;
19(iv) Prior to the start of the test, the temperature of any liquid
20simulator solution utilized as an external standard, as measured by a
21thermometer approved of by the state toxicologist was thirty-four
22degrees centigrade plus or minus 0.3 degrees centigrade;
23(v) The internal standard test resulted in the message "verified";
24(vi) The two breath samples agree to within plus or minus ten
25percent of their mean to be determined by the method approved by the
26state toxicologist;
27(vii) The result of the test of the liquid simulator solution
28external standard or dry gas external standard result did lie between
29.072 to .088 inclusive; and
30(viii) All blank tests gave results of .000.
31(b) For purposes of this section, "prima facie evidence" is
32evidence of sufficient circumstances that would support a logical and
33reasonable inference of the facts sought to be proved. In assessing
34whether there is sufficient evidence of the foundational facts, the
35court or administrative tribunal is to assume the truth of the
36prosecution's or department's evidence and all reasonable inferences
37from it in a light most favorable to the prosecution or department.
1(c) Nothing in this section shall be deemed to prevent the subject
2of the test from challenging the reliability or accuracy of the test,
3the reliability or functioning of the instrument, or any maintenance
4procedures. Such challenges, however, shall not preclude the
5admissibility of the test once the prosecution or department has made
6a prima facie showing of the requirements contained in (a) of this
7subsection. Instead, such challenges may be considered by the trier of
8fact in determining what weight to give to the test result.
9(5) When a blood test is administered under the provisions of RCW
1046.20.308, the withdrawal of blood for the purpose of determining its
11alcoholic or drug content may be performed only by a physician, a
12registered nurse, a licensed practical nurse, a nursing assistant as
13defined in chapter 18.88A RCW, a physician assistant as defined in
14chapter 18.71A RCW, a first responder as defined in chapter 18.73 RCW,
15an emergency medical technician as defined in chapter 18.73 RCW, a
16health care assistant as defined in chapter 18.135 RCW, or any
17technician trained in withdrawing blood. This limitation shall not
18apply to the taking of breath specimens.
19(6) The person tested may have a physician, or a qualified
20technician, chemist, registered nurse, or other qualified person of his
21or her own choosing administer one or more tests in addition to any
22administered at the direction of a law enforcement officer. The test
23will be admissible if the person establishes the general acceptability
24of the testing technique or method. The failure or inability to obtain
25an additional test by a person shall not preclude the admission of
26evidence relating to the test or tests taken at the direction of a law
27enforcement officer.
28(7) Upon the request of the person who shall submit to a test or
29tests at the request of a law enforcement officer, full information
30concerning the test or tests shall be made available to him or her or
31his or her attorney.
32PART VI
33CONSTRUCTION
34NEW SECTION. Sec. 38. Sections 4 through 18 of this act are each
35added to chapter 69.50 RCW under the subchapter heading "article III --
1regulation of manufacture, distribution, and dispensing of controlled
2substances."
3NEW SECTION. Sec. 39. Section 21 of this act is added to chapter
469.50 RCW under the subchapter heading "article IV -- offenses and
5penalties."
6NEW SECTION. Sec. 40. Sections 26 through 30 of this act are each
7added to chapter 69.50 RCW under the subchapter heading "article V --
8enforcement and administrative provisions."
9NEW SECTION. Sec. 41. The code reviser shall prepare a bill for
10introduction at the next legislative session that corrects references
11to the sections affected by this act.Originally filed in Office of Secretary of State July 8, 2011.
Approved by the People of the State of Washington in the General Election on November 6, 2012.