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. Steg, Thanks for attempting to introduce some logic into this conflict. I like bam. But, I will not put logic and science aside in order to appease. I don’t have an ounce of “Go along to get along” in my body. Anyone who knows me knows I always say what I think. The best I can offer is to walk away w/o saying anything, biting my tongue as it were. And one never gets positive reinforcement for biting their tongue, as the biter is the only person who knows that occurred. I simply could not use that biting my tongue option here. Most importantly I am able to separate what I THINK from what I FEEL. My liking someone[feeling] does not trump my reverence for logic and truth[THINK].

  2. The school’s complete disregard for due process should leave them very vulnerable to a lawsuit. Let’s hope the almighty $$ will have an impact where common sense cannot.

  3. LOL! You could have simply penned the grade school chant, “I know you are but what am I” and saved you and all of us some time. Your passion seems to override any logic you might possess when it comes to children. You fashion yourself Saint Bam in that area. Any objective analysis of my 12:57p comment would show it to be knowledgeable, the antithesis of a rant. You offer no evidence of knowledge about cannabis, only derision of it and those who use it. My KNOWLEDGE of cannabis is evidenced by my writing in this forum many times that it should not be used by any person in their teens or younger. That is not based on my being the savior of children like yourself. It is based on science and logic. Chronic cannabis use is shown to inhibit the final stages of brain development that occurs in teen years. That brain development is crucial in connecting the frontal lobe w/ other parts of the brain. If that critical step in brain development is stopped by chronic cannabis use, it can never be recovered. So, we should EDUCATE parents and children on this. Finally, for every kid smelling of cannabis, for whatever reason, there are thousands more children exposed to alcohol, physical, psychological abuse in their homes. That emits no odor, and is even more dangerous than exposure to cannabis.

  4. Bam, you and nick are friends! Right? Like, forum pals, sort of. You don’t agree on everything, but for the most part have a very similar worldview. No need to be vicious. Then again that’s just what I seem to get from both of your comments.

    I believe your possible scenarios put forth about living with 24/7 pot smoking parents is not viable due to the fact that the school did test him, and it came back negative. We know marijuana can stay in the system for weeks, in very small amounts. If the boy was in any type of contact with the smoke, or even vapor, it would have shown up on the test.

    The pot smoking condo owner- wasn’t there a case out of CA where a cigarrette smoker was ruled that they couldn’t smoke in the building due to it permeating the other residences? It was becoming a problem identical to the one Karen mentioned.

    It was cigars!

    I agree with that ruling. If you want to be free to smoke *whatever* in your own home, go buy a house on some land. It is thoughtless, careless, rude, and wrong to claim the condo as 100% your castle. You opted to live in that kind of community, respect it.

    Did the smokers poll all building recipients to make sure nobody had asthma or a health condition? Did they think of others before themselves? I am all for one for being greedy and selfish, etc, but you’ve got to get your own piece of land. Otherwise you need to be aware, conscientious, and respectful of those with whom you choose to reside.

  5. Well, Nick, your ignorance is only overshadowed by your arrogance with regard to your opinions being the only ones with any merit. As you have repeatedly done with the likes of Annie and others, you make wild and baseless assumptions about others and their respective levels of knowledge and expertise regarding any array of topics. It is your MO, which, unfortunately, appears to be in full force and effect in 2016. Way to go. You are not the only person to comprehend that marijuana has a strong and pungent odor. I know. That must come as a huge surprise to you. Your rants are predictable and, for the most part, tiresome. If you would just bother to read what I wrote, you would understand that the putrid stench associated with this kid could also be due to the fact that he lives in a house with Cheech and Chong, where adults are engaging in smoking this stuff around the clock. You, in all if your great Karnac wisdom, don’t consider that to be a possible option. I merely raise that point as a possibility in this kid’s case. That’s what intelligent people do, Nick. They contemplate the possible scenarios which could’ve caused this kid to reek to high heaven. If this kid lives in a home with suffocating plumes of pot smoke, this kid’s exposure to that smoke is troublesome, for various reasons. Just like kids shouldn’t be incessantly exposed to second hand smoke from cigarettes containing tobacco, the same argument can be made regarding exposure to pot smoke. You, as usual, miss that point. Not surprising, as you go on some off-topic rant about your pot usage. No one cares. Perhaps the administrators at the school don’t have your refined and delicate nose to differentiate between the smell of marijuana smoke and that of marijuana resin. The article doesn’t say. While your medical marijuana usage may assist you with your respective ailment, it also appears to have made you quite angry and paranoid. I’d lay off the $@it.

    1. bam bam – I will agree with you. My sniffer was keen enough to identify that the student had been around marijuana, however that is as far as it went. Then I took them to the administration. The student was their problem after that.

  6. bam, Your ignorance of cannabis creates your certitude, a pathology we’ve seen on other topics. There was a post here a while back where Mike Appleton and I discussed both working in our youth harvesting CT River Valley shade tobacco, used for cigar wrapping. It is hard back breaking work. Tobacco plants have an aroma, but it is fairly mild. the aroma is sweet, which is about the only similarity to cannabis plants.

    As you may remember, a person who is no longer part of the comment community here, used to ignorantly deride me for being a medical cannabis patient. I have been for about 7 years now. In that regard, I have grown, harvested and processed cannabis. So, I have a unique perspective on this. Cannabis plants put out an INCREDIBLY pungent odor. Indeed, it is the smell that is one of the main reasons illegal growers get busted. You can be growing cannabis plants in the basement of your residence and w/o the use of an ozone generator[s], the smell can waft out to the driveway and street. The pungent smell is often the reason stated in application for search warrants. There are few plants that have such a strong aroma. And, when harvesting, the resin, which is quite similar to pine tar, can get on your hands and not go away for days. I think the one lie in this is the kid may have been helping mom harvest. But, even if mom is not lying, I can tell you the smell gets on anyone in the vicinity. Finally, a person knowledgeable about cannabis, could tell the difference between a person reeking from cannabis smoke, and cannabis resin.

    “OOOh that smell, can’t you smell that smell, OOOh the smell, the smell gets around you.”

    Lynyrd Skynyrd

  7. This is an interesting situation for states where smoking or even having possession of marijuana is a crime, not just where it’s legal. The first problem is due process. The school should not be able to take any actions like suspending the student unless they have proof the student is high or has it on him/her. A search could prove possession or not, but a warrent may (should, in my opinion) be required. Second, if the school is going to have a zero-marijuana (or zero-drug) policy, then they should be prepared to have the equipment on hand to take a blood sample (plus acquire the appropriate search warrent). Then the kid should get to remain in school until the blood sample is sent to a lab and the results of the test have been returned. All the protections of the Constitution and the Bill of Rights apply to kids just as much as they do to adults. And schools are bound by those protections. Smelling like marijuana is not proof of smoking it. Having a kid who smells like marijuana does not indicate you are not raising your kid properly or abusing him/her. Sitting next to or near one or more people who are smoking, particularly in a car or other enclosed environment, can cause the smell of the smoke to penetrate a person’s clothing. The First Amendment ensures the freedom of association, so smelling like others who are smoking marijuana is not proof of smoking it for anyone who is around them. The school is way off base here, and is leaving itself wide open for a multi-facited lawsuit, I would think.

  8. I was invited to spend New Year’s day at a brunch scheduled by a few friends at a local restaurant. At the brunch, I happened to sit next to a gentleman who was a friend of a friend. While this brilliant and accomplished businessman, with over 4,000 employees spanning the US and various countries, was charming, kind and funny, there was one problem–he reeked, yes, reeked from cigarette smoke. His breath, his clothing, his hair–you name it–it permeated from every pore on his being. A cloud of stench had formed around him and wouldn’t leave. Unfortunately, because of the seating, neither could I. All of the chairs around the table were taken. The smell should’ve had its own name; it

    was a living being. No one is going to convince me that he acquired that stench because he merely lived in a home with HARVESTED tobacco anymore than the kid in this article reeked from pot because his momma harvested the $&it.

  9. The 2 bad forms of govt. have merged the past several decades. Socialists have become fascists. Even Stevie Wonder can see that.

  10. THIS WAS NOT “POT SMOKE.” Recently harvested cannabis gives off a pungent smell. Socialists defend, deflect, and lie in trying to cover up the insanity of zero tolerance, a construct of the public Education Industry.

  11. There should be a ‘second hand approach’ as with tobacco. It has taken decades for smokers to understand that their smoke is not tolerable by non smokers. The same should be layered into society with pot smoke. If you want to smoke and you foul the air of others then, bingo, civil suit, answer ventilation, consideration, and all those other ‘tions.

  12. No problem here. Zero tolerance is zero tolerance. If an adult is so addicted to pot that they can’t protect the children in their care so as to pass a zero tolerance criteria at school, then it is time for the parent to shape up or for the children to be placed in safe custody.

  13. Someone above made the phrase: “a cigarette merely containing tobacco”. Here is where America has gone South. The Principal (no “pal”) of that school probably smokes cigarettes containing tobacco. No problem there is there you schmucks on the School Board all do too. Went in dumb, come out dumb too.

    I am from Remulak. We favor the practice of humans on Planet Earth to smoke tobacco because it keeps the population down. It is kind of like “the one child” program in China.

    In this case the kid reeks, mom reeks, their home reeks and they are providers of pot to all… and to all a good nacht.

  14. This is a timely article.

    A good friend of mine is on the board of her HOA. They got a complaint because an upstairs resident was getting smoked out by her downstairs neighbor. He had a medical marijuana license. The smell of pot in his upstairs neighbor’s condo was overwhelming. I don’t know how it is possible for one person to make that much pot smell. Smoke would blow right up to her patio. The smell would permeate her condo through the vents. When she left her home, she reeked of pot. She has to go to her job, and her child would have to go to day care, smelling like pot, when she is not a pot smoker herself. She is a single mom of a 2 year old. She complained to the HOA, but their hands were tied because he had a license. They told her to call the cops, but I wonder if they can do anything. Unless he’s exceeding his limit (and that may be possible from the sheer density of aroma), there’s nothing they can do. I wonder if it’s the design of the air circulation of this older building, in that it’s an effective recirculator.

    It’s an interesting problem. Because I do support medical marijuana. But I also believe no one has the right to force others to consume it. The legalization of pot has created some unforeseen circumstances like this, where people who live close together can be affected.

  15. They have cameras in the school – if they are smoking in the building suspend them – if they do it again expel them – which in public school terms means move them to another public school.

    If a teacher/admin thinks a kid is high during class fill out a form (for proof of complaint) and send them to the social worker. After they have been sent to the social worker 3 times and that person determines they are high the social worker will have to call the state to investigate the home. Parents hate that.

    This is not a problem or responsibility of the school other than to get the kid who is smoking/drinking in the building caught and booted, or if they are high in class the state will pay the home a visit.

    Private schools can do as they like.

    Eventually, there will be a public school opened that serves the community of parents and kids who don’t care. Use the tax dollars from pot liquor and tobacco to fund this school and to put more social workers and tech staff in the public middle and high schools

  16. This kid probably reeked–REEKED TO HIGH HEAVEN–from pot. While he, himself, may not have been actively smoking it, someone in that home surely was, and the stench must’ve been so brutal and strong that it permeated his clothing. A truly troubling sign, which, unfortunately, seems to have been missed in the article. Second hand smoke, whether it emanates from a cigarette merely containing tobacco or from one consisting of marijuana, is harmful and causes damage to those–especially minor children–exposed to said smoke. Parents with minor children should not be permitted, by law, to smoke within a confined space–a car, a home, etc.–where minor children are present and incapable of avoiding said smoke. In my opinion, it’s a form of child abuse, whereby the exposure causes irreparable damage to the health of these kids. If the parents are too ignorant, lazy or uninterested regarding their duty to protect the lives, health and welfare of their own kids, they should be compelled to do so by law, if necessary. For example, while Sudden Infant Death Syndrome no longer seems to make the headlines like it used to, I recall reading, years ago, that homes with second hand smoke had a higher than usual occurrence of SIDS. Babies were going to sleep and not waking up. Kids are highly susceptible when exposed to various toxins, and our laws should serve to protect them from morons who are ill-equipped to properly care for their safety and health.

  17. I can see shaking them down if they smelled like marijuana, but the rest of this is over the top. Kicking them out until the results come back is insane. How would that work if we had to kick students out of school until all of Hillary Clinton’s emails are released?

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