cr:>    '•— -\
                                                                                                 ert
                                                                                                         • .?:-
     IN THE COURT OF APPEALS FOR THE STATE OF WASHINGTON                                        CD

                                                                                                        o     -,
                                                                                                GO
                                                                                                        :•-•- -

                                                                                                --,..   O; :-j-

CITY OF KENT,                                                                                           •-'-'T>

                                                          No. 73929-8-1
                         Respondent,
                                                          DIVISION ONE
      v.



COREY COBB,                                               UNPUBLISHED OPINION


                         Appellant.                       FILED: October 31, 2016

      Spearman, J. — Unless a vagueness challenge implicates First

Amendment rights, we evaluate the challenged statute as applied to the

defendant's specific conduct. Corey Cobb challenges the constitutionality of the

per se THC1 statute, RCW 46.61.502(1 )(b). He argues that the statute is void for

vagueness because it is impossible for a reasonable person to know when his

THC exceeds the legal limit. But the statute as applied to the facts of Cobb's

case is not impermissibly vague. We affirm.

                                             FACTS


      A Kent police officer made a traffic stop after observing a car commit

several traffic violations. The officer discovered that the driver, Corey Cobb, was

driving with a suspended license (DWLS) and was wanted for two DWLS

warrants. The officer placed Cobb under arrest.




           "THC" is delta-9-Tetrahydrocannabinol, the primary active ingredient in marijuana.
No. 73929-8-1/2


       The officer observed that Cobb smelled of marijuana and had bloodshot

eyes. Cobb told the officer that he had smoked marijuana 5-6 hours before and

stated that he had a medical marijuana card. When the officer asked if he would

perform field sobriety tests, Cobb first consented but then said that his medical

marijuana paperwork instructed him to only take drug tests at the police station.

Cobb consented to a drug influence evaluation (DIE) at the station.

        During the DIE, Cobb showed signs of marijuana impairment including

droopy eyelids, muscle tremors, and inappropriate giggling. He stated that he

smoked marijuana "'a couple of hours'" before. Clerk's Papers (CP) at 463. He

later said that he smoked marijuana at 8:30 that morning. The arresting officer

informed Cobb that he believed Cobb was under the influence of marijuana.

According to the officer, Cobb replied "'Of course I am, but I got my card and I'm

being legal about it.'" CP at 456.

        Cobb voluntarily gave a blood sample. Analysis of the blood sample

determined that Cobb's level of THC was 5.9 nanograms per milliliter (ng/mL).

The City charged Cobb with driving under the influence (DUI) under RCW

46.61.502 because he was driving while affected by marijuana or had a THC

level of 5.0 ng/mL or greater within two hours of driving.2

        Prior to trial, Cobb moved to preclude the City from proceeding under the

perse prong of the DUI statute, RCW 46.61.502(1 )(b). Cobb argued that the per

se statute is void for vagueness because it does not provide adequate notice of


        2The City also charged Cobb with driving with license suspended. The DWLS charge
and conviction is not at issue in this appeal.
No. 73929-8-1/3


what conduct is proscribed. Specifically, Cobb asserted that there is no way for a

person to determine his THC level based on the amount of marijuana he has

consumed. Cobb also argued that the statute was not a valid exercise of the

State's police powers because there is no correlation between THC level and

impaired driving. Cobb relied on several scientific studies to support both

arguments. For the purposes of the motion, the parties stipulated to the facts

detailed in the police report.

       The trial court denied Cobb's motion. The court rejected Cobb's

vagueness argument and did not rule on Cobb's police powers argument. The

King County Superior Court denied Cobb's request for a writ of certiorari and this

court denied Cobb's petition for discretionary review.

       The matter proceeded to trial. Because the parties agreed to treat the

case as a test of the constitutionality of the per se THC limit, the City dismissed

the affected by allegation under RCW 46.61.502(1 )(c) and proceeded only on the

per se prong of the DUI statute, RCW 46.61.502(1)(b). Cobb was convicted as

charged. He appeals the denial of his motion to declare the per se THC prong of

RCW 46.61.502 unconstitutional.3

                                       DISCUSSION

       Cobb argues that the trial court erred in denying his motion to declare the

per se THC statute, RCW 46.61.502(1 )(b), unconstitutionally vague.




      3 Cobb filed a notice of appeal requesting direct review by the Supreme Court. The
Supreme Court transferred the case to this court.
No. 73929-8-1/4


        When the legislature legalized recreational marijuana, it also made a

legislative judgment that a person's driving is affected by marijuana if he or she

has a THC blood level of 5.0 ng/mL. RCW 46.61.502(1 )(b). A statute is

presumed to be constitutional. Haley v. Medical Disciplinary Bd.. 117 Wash. 2d 720,

739, 818 P.2d 1062 (1991) (citing Seattle v. Eze. 111 Wash. 2d 22, 26, 759 P.2d
366 (1988)). To overcome this presumption, the challenger has the burden of

proving unconstitutionality beyond a reasonable doubt, jd. We review the

constitutionality of a statute de novo. State v. Watson. 160 Wn.2d 1,6, 154 P.3d
909 (2007) (citing Kitsap County v. Mattress Outlet. 153 Wash. 2d 506, 509, 104

P.3d 1280(2005)).

        The due process clause of the Fourteenth Amendment requires statutes to

provide fair notice of conduct that is prohibited. Id. (citations omitted). Unless a

vagueness challenge involves First Amendment rights, we evaluate the statute

for vagueness as applied to the actual facts of the case. Id. (citing State v. Coria.

120Wn.2d 156, 163. 839 P.2d 890 (1992)). See also City of Spokane v.

Douglass. 115Wn.2d 171, 182-83, 795 P.2d 693 (1990) (in an as applied

analysis, a law "is tested for unconstitutional vagueness by inspecting the actual

conduct" of the challenging party). Because driving does not implicate First

Amendment rights, we evaluate Cobb's challenge as applied to the facts of his

case.


        A statute is impermissibly vague if (1) it does not define a criminal offense

with sufficient clarity that ordinary people can understand what conduct is
No. 73929-8-1/5


prohibited or (2) it fails to provide ascertainable standards of guilt to protect

against arbitrary enforcement. jd. (citing State v. Williams. 144 Wash. 2d 197, 203,

26 P.3d 890 (2001)). Cobb challenges the statute under only the first prong. He

asserts that the per se THC statute is unconstitutionally vague as applied to him

because, absent a blood test, there was no way for him to know when he

crossed from legally driving after consuming a small amount of marijuana to

unlawfully driving with a THC level in excess of the statutory limit.4

       We reject this argument. While a statute must define prohibited conduct in

terms that an ordinary person can understand, due process does not require

"'impossible standards of specificity.'" State v. Evans. 177 Wash. 2d 186, 204, 298
P.3d 724 (2013) (quoting State v. Sullivan. 143 Wash. 2d 162, 181-82, 19 P.3d
1012 (2001)). It is not necessary for a statute to define with precision the moment

when conduct becomes unlawful, as a person "'who deliberately goes perilously

close to an area of proscribed conduct shall take the risk that he may cross the

line.'" id, at 203 (quoting Bovce Motor Lines. Inc. v. United States. 342 U.S. 337,

340, 72 S. Ct. 329, 96 LEd. 367 (1952)).

        Drivers in Washington are presumed to know that it is illegal to drive while

under the influence of marijuana and that a blood THC level of 5.0 ng/mL is proof

that a driver is under the influence. State v. Patterson. 37 Wash. App. 275, 282,

679 P.2d 416, 422 (1984) (citing State v. Spence. 81 Wash. 2d 788, 792, 506 P.2d
4 TheWashington Association of Criminal Defense Lawyers and the Washington
Foundation for Criminal Justice support this position in theirjoint amicus brief. The Washington
Attorney General filed an amicus brief in supportof the City of Kent.
No. 73929-8-1/6


291 (1973) rev'd on other grounds. 418 U.S. 405, 94 S. Ct. 2727, 41 LEd.2d 842

(1974). In this case, Cobb consumed marijuana, showed signs of impairment,

and acknowledged that he was under the influence of marijuana. Nevertheless,

he chose to drive. In so doing, Cobb accepted the risk that he might be driving

with a THC blood level in excess of 5.0 ng/mL. Having taken that risk, he cannot

now argue he was not on notice that he might be driving in violation of the

statute. The statute as applied to Cobb is not unconstitutionally vague.

        Cobb raises several other challenges to the constitutionality of the per se

THC statute. Although he acknowledges that his vagueness challenge must be

evaluated as applied to the facts of his case, he appears to assert that the statute

is facially vague.5 But because the per se THC statute, RCW 46.61.502(1 )(b),

does not implicate First Amendment rights, we do not consider Cobb's claim of

facial vagueness. Watson. 160 Wash. 2d at 6.

        Cobb also argues that the statute exceeds the State's police powers. But

the trial court concluded that Cobb struck his police powers argument and

therefore did not rule on the issue. Cobb did not object to this ruling below, move

to reconsider the issue, identify the issue in his notice of appeal, or assign error

to the court's failure to address the issue. Nonetheless, both Cobb and the City

urge us to consider the argument on appeal. We decline to do so because in the




         5Cobb points to some expert opinions asserting no correlation between THC blood level
and impairment. Thus, he argues it is possible for a person to have a THC blood level in excess
of 5.0 ng/mL and whose driving ability is unaffected. But because those are not the facts of this
case, it is irrelevant to an as applied analysis.
No. 73929-8-1/7


absence of a ruling by the trial court, the issue is not ripe for review.6 RAP 2.2.

See State v. Cates. 183 Wash. 2d 531, 534, 354 P.3d 832 (2015) (an issue is not

ripe for review until the challenged action is final) (citing State v. Sanchez

Valencia. 169 Wash. 2d 782, 786-91, 239 P.3d 1059 (2010)). See also Matheson v.

Gregoire. 139 Wash. App. 624, 637, 161 P.3d 486 (2007) (declining to consider an

issue not decided by the trial court as not ripe for review).

        Finally, Cobb argues that the marijuana initiative, I-502, violates

Washington's single subject rule for ballot measures. Cobb did not raise this

argument below. "An argument neither pleaded nor argued to the trial court

cannot be raised for the first time on appeal." Sourakli v. Kvriakos. Inc.. 144 Wn.

App. 501, 509, 182 P.3d 985 (2008) (quoting Sneed v. Barna. 80 Wash. App. 843,

847, 912P.2d 1035(1996)).

        Affirmed.




WE CONCUR:




        6At oral argument, the parties also argued that the trial court's failure to rule on the police
powers argumentwas manifest constitutional error that may be raised for the first time on appeal
under RAP 2.5. They urged us to rule on whether the trial court erred in failing to address the
issue and on the merits of the argument. But neither issue was identified in the notice of appeal
and no error was assigned to the trial court's failure to rule on the police powers issue. Thus, the
issue is not within the scope of review. Clark County v. Western Washington Growth Management
Hearings Review Bd.. 177 Wash. 2d 136, 144-45, 298 P.3d 704 (2013) (the scope of review is
determined by the decisions designated in the notice of appeal and further specified by the
assignments of error and arguments of the parties).