News Column

Marijuana: How Stoned Is It OK for Drivers to Be?

Feb. 4, 2013

Megan Schrader, The Gazette (Colorado Springs, Colo.)

After three consecutive attempts to get a legal limit on the books for driving stoned, House Republican Leader Mark Waller says this is the year for a small compromise and legislative success.

"We needed it before with the proliferation of medical marijuana," Waller, of Colorado Springs said. "We're seeing traffic accidents and fatalities go up as it relates to marijuana being a factor. We need this legislation with the passage of Amendment 64, and we absolutely need to protect our citizens on Colorado roads."

The bill faces two important hurdles Tuesday when it is heard in the House Judiciary Committee and the governor's Amendment 64 task force will consider endorsing the legislation. The task force is responsible for recommending regulations to lawmakers for voter approved recreational marijuana use.

HB114 measure would define driving under the influence of marijuana as a driver's blood containing 5 nanograms or more of the psychoactive ingredient in marijuana, delta 9-tetrahydrocannabinol, better known as THC.

Blood tests given after a DUI arrest can determine the level of active THC similar to a blood tests used to determine whether a driver's blood exceeds the .08 blood alcohol limit for drunken driving.

Opponents of past marijuana-driving measures have said the THC limit can be erroneous. A person could be over the threshold, but not actually be high because of varying tolerance levels and effects of the drug.

Waller says this year he has a compromise that could draw enough support from Democrats to pass both the House and the Senate.

The compromise is a variance in how the law is written.

Now, if a driver tests over the .08 limit for alcohol in 100 milliliters of blood, they are presumed to be under the influence of alcohol. That presumption means in the court of law, the driver can only argue the test was inaccurate as a defense. Drivers cannot say they have a high tolerance and are not drunk at that threshold. Past laws have mirrored that for the DUI pot law.

"The issue now with Democrats being in control of the house, is they don't like the per-se limit," Waller said. "They think ... you should be able to challenge whether or not you are under the influence at 5 nanograms."

So Waller's bill currently says at the 5 nanogram limit a driver is presumed to be under the influence, opening up other legal defenses.

Asked Friday what he thought of the compromise, Democratic Gov. John Hickenlooper said he would have preferred the more stringent legal threshold.

"Getting a law is the most important part," he said.

When Hickenlooper called for a special session last year, the THC driving limit was among those issues he asked lawmakers to consider. It failed unexpectedly in the Senate.

Waller has a Democrat co-author this year, Rep. Rhonda Fields, D-Aurora, and hopes to have the support he needs in the Senate.

Interestingly, Waller's bill also changes the laws for vehicular homicide and assault laws while driving under the influence. Now a person is presumed to be under the influence of alcohol if they exceed the .08 limit. Under Waller's law "such fact gives rise to the permissible inference" that a driver is under the influence. It gives the vehicular homicide and assault laws the same lesser burden of proof as the proposed marijuana law.

"In some respects it's easier to try a felony domestic violence case than it is a DUI case because of the technical nature of DUIs," said Waller, a former deputy district attorney in Pueblo. "Introducing blood evidence, introducing breath tests, introducing expert testimony, it is a very technical area of the law."

Lt. Jeff Kramer, spokesman for the El Paso County Sheriff's Office, said having a THC threshold on the books would support the work deputies do every day.

Now an officer who suspects a driver is stoned will look for evidence -- the smell, visible paraphernalia in the car, and administer a field sobriety test. Once the deputy has probable cause, Kramer said, he or she makes an arrest and administers a blood test if the driver consents.

"That arrest, by and large, hinges on the deputy's observations and their ability to articulate those observations in court," Kramer said.

Having a threshold established for the results of that blood test would help deputies, he said.

"The advantage to that ends up being that arrest then, to a large extent, can come under less scrutiny," Kramer said. "Because the decision to make the arrest has now been backed up or supported by scientific evidence."

Source: (c)2013 The Gazette (Colorado Springs, Colo.) Distributed by MCT Information Services

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