Suspending Students For Odor Of Marijuana On Their Persons Problematic In Legal States

By Darren Smith, Weekend Contributor

wenatchee-high-school-logoThere is going to need to be a rethinking of how schools with their propensity toward zero-tolerance rules adjudicate students they suspect of marijuana use or possession. That issue was played out in over the course of recent months at a high school in Wenatchee, Washington where in October of last year school administrators suspended for five days a student based upon the odor of marijuana on his person. Washington is a state having legal recreational and medicinal marijuana possession and use.

Though marijuana possession or use is for those under twenty-one years of age is a status offense–a misdemeanor and violates school policy–having a odor of marijuana in itself is not indicative of violations of law. The student and his mother denied the student using or possessing marijuana, however the school district continued with the suspension. It turns out, as alleged by the mother and is the most probable explanation, the student had the aroma on his person as a result of her harvesting legal medical marijuana in the household. The mother has a prescription for medical marijuana.


On the day of the initial incident, the student was contacted by a security official of the school on school property for the marijuana aroma. The administrators of the school sanctioned the student with an “emergency expulsion” pending the result of a drug test that would not be available for a week. I fail to accept that a student, not having marijuana on his or her person after search by school officials but has an aroma of marijuana on his person constitutes an emergency. The school should have recognized also that in the state marijuana is legal to possess and so are cigarettes as well. Children living in homes having parents who smoke are likely to have cigarette smoke aroma on their persons. And though minors are prohibited from purchasing cigarettes, because of the fact that others surround them during adult smoking is not sufficient cause to suspect the minor is engaged in purchasing tobacco.

The result of the marijuana drug test of the student was negative.

In an interview with the Wenatchee World, school administrators stated that it was policy to issue emergency expulsions if students were under the influence of controlled substances. Again, the school had no evidence to support that the student was under the influence or in possession of marijuana.

MarijuanaAnother problem with drug testing for marijuana is that the active ingredient in some strains of the plant, Delta-9 THC, is fat soluble and can remain in the system for weeks without any signs of the person being high. If the standard is “under the influence” the state needs to have Drug Recognition Experts who are certified by the state in order to have probable cause of a person being under the influence of marijuana. The state establishes for the purpose of DUI presumptive THC intoxication 5 nanograms per milliliter of whole blood.

Mark Helm, the district’s executive director of student services, stated that though they discussed this particular incident, he indicated the policy was unlikely to change, claiming the school was erring on the side of caution. I believe his interpretation of caution is the opposite of what it needs to be.

Mr. Helm offered a solution that would allow for the student to “reduce their suspension time” if the parents were to bring their child to a clinic and obtain a drug test result that shows a negative result. The problem with this solution is three fold. It puts the burden of proof upon the student to prove innocence, the student will already be expelled and sanctioned prior to the result–which I believe violates due process rights for the student, and it will be a burdensome cost to parents and students who’s return to school will subject to available time slots at local clinics to perform the test.

Also, Washington courts are increasingly resistant to placing due process responsibility on behalf of the accused. We previously discussed this matter in 2014 concerning former state law requiring a rape suspect prove consent violated the state constitution. See State of Washington v. W.R., J.R.. This might have applicability in cases such as these.

The incident points to public institutions are going to need to readdress prior expectations as society and laws change, especially in regard to marijuana.  Unfortunately, some bureaucracies are among the last to accept these changes.

By Darren Smith


The Wenatchee World
Revised Code of Washington, 46.61.506

The views expressed in this posting are the author’s alone and not those of the blog, the host, or other weekend bloggers. As an open forum, weekend bloggers post independently without pre-approval or review. Content and any displays or art are solely their decision and responsibility.

41 thoughts on “Suspending Students For Odor Of Marijuana On Their Persons Problematic In Legal States”

  1. A late comment here, but just had to say that if I get called out for random drug screening at work I go the nurses office and pee in a cup, results ready in 5 minutes. Why would it take a week to get results? No pot in the pee, no pot in the blood. More detailed testing after failing pee test.

    “Man who stands on toilet, high on pot.”

  2. Don’t argue guys. Disparate views on small matters. It is a new year. Watch out for deer.

  3. Nick Spinelli…….There is an additional problem with the Washington State (and Oregon, and Colorado) legalization of pot.
    Evidently, the permanent haze from second hand pot smoke attaches to our vehicles, throwing off Idaho law enforcement.
    Consequently, Idaho officers and K-9s are smelling pot on/in cars from “the wrong” states entering Idaho.
    A problem that Darien Roseen, Paul Dungan, and I did not anticipate when legalization passed.
    It’s evidently affected some of Idaho’s LE hearing as well, as in the “Nickelback/ Nickel SACK” misunderstanding with kids in Idaho.

  4. Bam Bam

    No, nothing like that at all. Ya got it all wrong. Read some of your old posts and pay attention to the capitalizing of words and other issues of stress.

  5. shelly

    Eventually pot induced delirium while driving will be dealt with. What is going on right now is the elimination of the abhorrent practice of criminalizing someone who smokes pot. All the rest of the spin off stuff will be addressed through education, peer pressure, and the law. This is how alcohol is dealt with and it is a vastly more dangerous drug. Statistics show that drunk driving is down. Making it illegal is not right. The pendulum will swing the other way for a while.

  6. isaacbubbamaci

    So let me get this straight:

    Anyone using words which have more than one syllable and are not contained in your list of SAT vocabulary is susceptible to mood swings? Use of descriptive words are an indicator of someone suffering from mood swings? How fascinating, Dr. Spock, or, should I say, how interesting, so as not to confound you? Get a thesaurus so that you don’t need to struggle so much.

  7. Here in WA state, there seems to be a weed shop in every neighborhood. I had to make a run to the local big-chain drugstore for some OTC meds recently. There was a cannabis store across the street. There were 2 well-dressed college kids who entered the drug store, giggling uncontrollably, and buying lots of snacks. After they left, I was buying my items when the cashier (young 20-something also with literally a rainbow of colors in her hair) tells me they offered her marijuana. She refused. Obviously, they were as HIGH AS A KITE! The only problem is they drove off…and they were offering weed to the cashier. So, just a small glimpse of what is happening here.

  8. Bam Bam

    Your use of descriptive words: horrendous, reeked to high heaven, stench, etc. brings along a certain level of involvement that may be the result of mood swings as well. You seem to be overly familiar with the smell. What’s the scoop, Betty Boop? What’s that jive, Clive? Give me the low down, Brown.

  9. Karen, The smell problem of that person you mention could be greatly mitigated if the patient using cannabis would be required to have an ozone generator. I think that would be a righteous requirement. You can get a good one for ~$200. And, using a cannabis vaporizer instead of smoking the medicine would cut the smell drastically and also is much healthier for the cannabis user. Vaporizing the cannabis does not create the carcinogens and produces considerably less smell. Of course, if the patient simply used edibles, there would be no smoke or smell.

  10. I can, and do, consider others opinions based on LOGIC, SCIENCE, EXPERIENCE AND REASON. If one wants to base their opinion solely on emotion, they are wasting their time w/ me.

  11. One can consume cannabis edibles and have no smell of cannabis on their person.

  12. bam, I think you are wrong about nick.

    As it stands though, I do appreciate your thoughts and views.

  13. Nick

    So, that condition that you take medical pot to control, is it working? You seem to flip out occasionally. Someone who used to imbibe, on and off, for many years, told me about the mood swings, sometimes gentle, sometimes not so gentle. Pot is probably the most innocuous drug out there but it does have its effects, drifting in and out of fantasies being one of them. It is telling to get so po’d on a blog, especially against such routine drivel. Take some water with your wine.

  14. Steg

    What you are sensing, from me, at least, is an expression of indignation that stems from the fact that Nick, as evidenced from countless rants, is simply incapable of ever appreciating or considering another’s views when they don’t jive with his. Read my comments prior to Nick’s diatribe. My comments and my beliefs, which didn’t attack any specific person’s perspective. Simply my take on the possible cause of this horrendous stench which follows this kid. We should all be free to do so on here. Nick has managed to consistently attack any and all who voice an opinion contrary to his and is surprised when those attacks are met with a few choice words. It’s a shame that so many have left due to his antics. He is a legend in his own mind.

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