A bill that sets a legal standard for determining if someone is too stoned to drive passed out of a Colorado committee Tuesday on a unanimous vote, despite one opponent’s offer to serve as a guinea pig to prove to committee members that the bill sets the threshold too low.
Under the bill, a jury can infer that motorists with 5 nanograms of active THC per milliliter of blood were impaired at the time their blood was drawn. This is less strict than a “per se” requirement in which the blood test would automatically trigger an impaired driving conviction, such as with drunk drivers whose blood alcohol level exceeds legal limits.
THC is the active ingredient in marijuana, and it can persist in the bloodstream long after the effects of smoking a joint have worn off, leading many of the bill’s opponents to worry that pot smokers will be wrongly convicted of DUI.
They also say the limit is too low, especially for medical marijuana patients who use marijuana products frequently enough that their THC levels are constantly elevated even though they might not be impaired.
“Most of us in the room have more than five nanograms in us right now and we’re not impaired,” said opponent and medical marijuana patient Max Montrose.
Montrose works at a medical marijuana dispensary and he told the committee “I reek” of cannabis after spending the day tending plants. He worried that the odor would be enough probable cause during a traffic stop for a cop to order a blood test, which would show elevated levels due to his regular use of marijuana for a medical condition, even though he might not be experiencing any impairing effect.
Montrose made the committee an unusual offer, volunteering to have a state toxicologist, who was present in the committee room, test his THC blood level both before and after smoking pot, and then once an hour thereafter so that he could demonstrate how THC persists in the blood.
Committee Chairman Daniel Kagan said he appreciated Montrose’s testimony, but he ignored his offer to be a test subject.
Teri Robnett, a medical marijuana patient with fibromyalgia, told committee members that the bill, which is sponsored by Republican Rep. Mark Waller and Democratic Rep. Rhonda Fields, had nothing to do with public safety.
“This is about ‘we don’t like pot and we don’t like people who use pot,’” she said.
But lawmakers reminded her that the blood test alone was not enough to result in a DUI conviction, referring to the “permissible inference” definition in the bill. That’s legalese meaning that a jury can use a 5 ng/mL blood test result as one factor among many in determining if a driver was impaired, but not as the only factor.
A blood test would only occur after an officer determined that there was reason to believe a driver is impaired, such as after administering a roadside test.
“If you’re not impaired,” said Democratic Rep. Lois Court, “This doesn’t seem to affect you at all.”
Opponents were unswayed, calling the bill unnecessary because it is already illegal to drive while under the influence of drugs. Many also pointed to a Department of Transportation report that concludes that THC blood levels cannot be relied upon to determine impairment.
“What you’ve seen today is a lot of words with no science behind them,” said Jason Warf, a marijuana activist and a member of the Amendment 64 Implementation Task Force, a group that is working on recommendations for setting up a system for legal marijuana sales in Colorado.
“There is no need for this law,” he said.
Supporters, including many law enforcement groups, disagree, citing an anticipated increase in pot use since Colorado voters legalized marijuana in November.
“Juries want to see a quantifiable way to help determine impairment,” Waller said.
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