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.