A bill aimed at stoned driving currently working its way through the Colorado legislature would set a blood THC level above which drivers would either be presumed to be impaired or deemed impaired per se, meaning the simple fact that their THC levels surpassed that threshold would make them guilty of DUID with no other evidence needed. The state’s medical and recreational marijuana users and advocates are apprehensive — although to varying degrees — but they are also confused.
The apprehension is over fears such a law could unjustly impact medical marijuana patients and recreational users who are not actually impaired; the confusion is because the bill, House Bill 1261, contains two different responses to drivers’ testing above the specified level — at this point, five nanograms of THC per liter of blood.
“I don’t even know what the hell that means,” sputtered Boulder attorney Lenny Frieling, who has tracked the bill closely as it advances. “It’s internally inconsistent. If they don’t fix this, I can’t wait to take a case on it,” he said.
The bill, introduced by Reps. Mark Waller (R) and Claire Levy (D) passed out of the House Judiciary Committee a week ago. The contradiction was supposed to have been resolved in the committee, but that didn’t happen.
“As of today, we still have both in there,” said Freiling. “Levy was unable to get someone on the committee to remove the per se language for now, so now she’s looking to change the threshold level from five nanograms to eight.”
There is apprehension about both any effort to set a THC level defining impairment and about the per se language in particular. That was evident at last week’s hearing, where some patients and advocates lashed out at the bill.
“Clearly, we see it as a witch hunt on medical marijuana patients,” Laura Kriho, a spokeswoman for Colorado’s Cannabis Therapy Institute, told the committee.
The per se language drew the attention of patient Max Montrose, 22. “They have the potential of incriminating thousands of people who are innocent,” he testified.
“While the science that is out there seems to support this five nanogram limit, we have concerns that patients who use a fair amount of marijuana legally may be caught up in this dragnet if they have high THC levels,” said Brian Vicente of Sensible Colorado. “That’s not an insignificant concern in a state where 2% of the population hold medical marijuana cards.”
Other activists were a bit more sanguine. “Some people are fearful that patients in states like Colorado would constantly have THC levels close to or above the threshold simply by their self-medicating,” said Paul Armentano, deputy director of NORML and arguably the drug reform movement’s leading expert on drugged driving issues. “But we don’t have the data to establish that is the case right now. There is very limited data to support that supposition.”
Armentano pointed to the experience of other states that have both medical marijuana and per se marijuana DUI laws. “Rhode Island, for example, has a zero tolerance per se law, yet we do not get a lot of complaints from patients there saying police are abusing the law,” he said.
“There’s a lot of confusion about what this bill will actually mean,” said Mason Tvert of Denver-based SAFER (Safer Alternatives for Enjoyable Recreation). “It’s still being tinkered with, and amendments are being proposed, so there are likely to be some changes in the bill, but I don’t really think it’s going to change anything. It’s already illegal to drive under the influence of marijuana, and it will still be illegal. This seems to be more of a way for the politicians to say they’re doing something about this.”
At least a dozen states have per se DUID marijuana laws, all but three of them zero tolerance laws, meaning any THC presence is grounds for a conviction. In two states, Nevada and Ohio, the per se threshold is set at two nanograms, while in Pennsylvania, it is set at five.
“Plenty of people in Pennsyvlania use marijuana, and we just have not seen that many complaints or criticisms of that law from the cannabis community there that the law is being abused or routinely netting cannabis consumers,” said Armentano.
Setting a five nanogram threshold for marijuana impairment is reasonable, said Armentano.”The scientific evidence shows that there is a rational basis to infer that an individual who tests positive at five nanograms may be under the influence of marijuana,” he said. “That’s not to say there should be a one size fits all standard. That’s why it’s so important to delineate between a per se law and a law that allows prosecutors, the defense, and the jury to assess the totality of the circumstances.”
As to how long after smoking it takes for blood THC levels to dip beneath five nanograms, well, that depends, said Armentano. “Do you have residual levels? What was the potency of the marijuana?” he asked. “We know that among occasional users, blood levels fall below five nanograms within one to three hours after inhalation, but that’s with relatively low potency marijuana.”
Less is known about chronic pot smokers, but Armentano cited a NIDA-backed study that found out of 23 subjects, only one tested above five nanograms after 24 hours and only two more tested above one nanogram. “We can’t say definitively how much time it would take, but based on the available evidence, most people would be below five nanograms within a few hours after last smoking.”
While NORML has spent some resources on influencing the bill, it officially neither opposes nor supports it, Armentano said. “Our focus is to make sure this legislation is not ultimately a per se law, but one that simply sets guidelines that can be used in determining impairment,” he said.
There is still time to do that. While the bill seems likely to pass in some form, it still faces another committee vote in the House, and the Senate has yet to take it up. That means there is still time to try to influence the
“The one area where we think we can get some movement is to target our lobbying and testifying to try to push for a rebuttable presumption in the law that would allow patients to put forth their argument that if they use marijuana in a certain way, they shouldn’t be convicted,” he said. “We would encourage concerned patients and advocates to reach out to the legislature and push for the rebuttable presumption — that’s damage control for a bill that’s going to pass.”
But the still existing per se language now presents another target for advocates and activists. In the end, it may come down to some legislative horse-trading. Will the legislature raise the threshold limits, but keep the per se language, or vice versa?