Colorado's Newly Legal Pot Smokers May Face Stricter DUI Standard

The Denver Post reports that Colorado legislators are moving toward a new standard for driving under the influence of marijuana now that Amendment 64 has made the plant legal for adults 21 and older to grow and consume. Under current law, DUI is defined as "driving a motor vehicle or vehicle when a person has consumed alcohol or one or more drugs, or a combination of alcohol and one or more drugs, that affects the person to a degree that the person is substantially incapable, either mentally or physically, or both mentally and physically, to exercise clear judgment, sufficient physical control, or due care in the safe operation of a vehicle." While a blood alcohol concentration of 0.08 percent or more is treated as equivalent to DUI, there is no such per se standard for marijuana. Previous efforts to set a limit at five nanograms of THC per milliliter of blood—the same as the standard established by Washington's marijuana legalization initiative, effective last Thursday—have failed due to objections from critics who said it would unfairly penalize regular consumers, especially people using marijuana for medical purposes, who might exceed the ceiling even when they are not impaired. Now the Post reports that supporters of a five-nanogram rule are offering a compromise that has won over some critics: Instead of being automatically guilty of DUI, drivers who test above the limit could present evidence that they were in fact OK to drive. Newly elected House Speaker Mark Ferrandino (D-Denver) told the paper:

With Amendment 64, it's going to be important that we clarify a lot of laws, and that is definitely one of them. Some of the people in my caucus who have not been supportive of the bill before do support [this proposal]. It gives me some hope that we'll have something that can be supported in a bipartisan way.

The Post says "even those who have opposed DUI limits for marijuana in the past...acknowledge that the compromise on the drugged-driving front will likely lead to the passage of a legal standard." But one such critic, defense attorney Sean McAllister, argues that there should be an exemption for patients because a DUI presumption at five nanograms will be hard to rebut:

Unless you have some really good facts and experts on your side, you're likely to be convicted anyway. There is an unfairness to convicting medical-marijuana patients who aren't taking the drug for recreational uses.

Critics of Washington's Initiative 502 raised similar concerns. They also objected to I-502's "zero tolerance" standard for drivers younger than 21. Given individual variation in how people respond to alcohol and other drugs, per se standards are inherently problematic. Assuming an alcohol-like per se standard for marijuana is politically necessary (as I-502's sponsors did), it is unclear whether five nanograms is a reasonable cutoff and how common it is for unimpaired drivers to exceed it. The Post notes that "the science used to arrive at those [THC] limits is relatively young—and highly debated—compared with what is known about the effect of alcohol on drivers." Alison Holcomb, director of the Yes on I-502 campaign, tells me it is certainly true that regular users can test positive for pot when they are no longer impaired, but she has never seen a study finding that "someone is safe at five nanograms."

In any case, a cutoff of zero is clearly nonsensical, regardless of the driver's age. Although the National Organization for the Reform of Marijuana Laws supported I-502, its executive director, Allen St. Pierre, said, "We fully recognize the per se DUI marijuana provisions in I-502 are arbitrary, unnecessary, and unscientific, and we argued strongly with the sponsors for provisions that would require proof of actual impairment to be shown before one could be charged with a traffic safety offense."

[Thanks to CK for the tip.]

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  • ||

    "You just did the most acid I've ever seen anybody eat in my life!"

  • R C Dean||

    There is an unfairness to convicting medical-marijuana patients who aren't taking the drug for recreational uses.

    I completely disagree. This isn't about why you are smoking at all, its about whether you are impaired behind the wheel. You're not less impaired because you have a prescription.

    The rebuttable presumption being offered strikes me as a sucker's deal. To rebut it, you would have to put on evidence that you had NOT smoked within the last several hours, which will be difficult-to-impossible to do.

  • Zeb||

    Which just shows that DUI laws are more about punishing people for immoral behavior than anything to do with safety.

  • Invisible Finger||

    Exactly. Reckless driving is reckless driving, the reason doesn't matter.

  • Brandon||

    This should be like the backup Dunphy signal.

  • Draft Tulpa 2016||

    That's not what you'd have to prove. You'd have to prove you weren't impaired.

  • sarcasmic||

    arbitrary, unnecessary, and unscientific

    That makes it different from 99% of the rest of the laws out there how?

  • fried wylie||

    There is an unfairness to convicting medical-marijuana patients who aren't taking the drug for recreational uses.

    Umm, if you're impaired, does it matter whether the impairment is due to medical or recreational causes? Someone under the influence of a sufficient dose of painkillers is impaired whether it's an appropriately-medical doctor-prescribed dose or just happy-fun-pill-gobbling. Impaired is impaired.

    The point about habitual users failing a bloodtest when they aren't actually impaired stands.

  • fried wylie||

    typed too slow and RC beat me to the punch, *shaken fist*

  • sarcasmic||

  • Newsfeed Monster||

    There are already reckless driving laws on the books in all 50 states. This is ripe for selective enforcement.

    Nevermind the multiple independent university studies that show regular smokers who have a tolerance are safe or even safer than non-smokers behind the wheel, given that they drive slower and less aggressively.

  • Zeb||

    I am honestly not worried at all about stoned drivers on the road. Anyone who smokes regularly is fine behind the wheel after smoking. And people who wouldn't be OK to drive feel like they are not OK to drive (which is the big problem with alcohol really). So the only people I would worry about would be someone who just got too stoned for the first time and for some reason has to drive. And I'm still more worried about people on phones or with small children in the back seat.

  • R C Dean||

    Anyone who smokes regularly is fine behind the wheel after smoking.

    That's a bit of an overstatement. An, umm, friend of mine, err, tells me he has been so stoned he couldn't operate a TV remote, much less a motor vehicle.

  • Brandon||

    If you are that stoned, would driving really seem worth the effort?

  • sarcasmic||

    The politically incorrect fact is that some people are just lousy drivers. I don't know if it is carelessness, stupidity, or a lack of common sense that causes their impairment, but they're unsafe to share the road.
    We need to get over political correctness and not let the naturally impaired people drive.
    Then test chemical impairment based upon actual road tests, not arbitrary concentration of chemicals in the blood.

  • KDN||

    We need to get over political correctness and not let the naturally impaired people drive.

    You just want to keep Asians off the road. Racist.

    Then test chemical impairment based upon actual road tests, not arbitrary concentration of chemicals in the blood.

    I agree with this, but how do you implement it? My thoughts were to have a system where you have a base level tolerance (say .05 BAC) and can test it up on the same road test that everyone else has to pass, certifying your ability to drive at your new tolerance. The downside to this, though, is the immense liability concerns for the testers (you know the AFSCME will bring it up to gain some hazard pay) and the added level of responsibility needed for a driver to keep his drunkenness certification proper.

    My thought is to avoid that potential bureaucratic nightmare and not so radically change the system (especially since people hate change) but still make it a bit less arbitrary and punitive: create intoxication bands that act to escalate the penalties of whatever you're being pulled over for. Going 65 in a 55 while at .08 but otherwise doing nothing wrong? Congrats, your $120 and 2 points is now $480 and 4. 80 in the same zone while at .20 and weaving? $600 and 6 is now $4,800 and 24 and you've just lost your license for a while.

  • KDN||

    At the upper ends of intoxication it leads to similar results while no longer punishing law abiding and competent drivers that happen to be drunk. It also effectively kills DUI checkpoints, since they'll no longer have a purpose.

    The testing apparatus is more popular with the people I've talked to, but I don't really understand why.

  • R C Dean||

    I agree with this, but how do you implement it?

    There are gizmos out there now that do test actual impairment using, I believe, hand-eye coordination tests or something like that.

    Study on impairment testing in the workplace here:

    http://workrights.us/?products.....es-it-work

    Since BAC and the like are, at best, proxies for impairment, you'd think that working impairment testing technology would be a no-brainer to supersede it.

  • Draft Tulpa 2016||

    I agree with this, but how do you implement it?

    Have the police dog walk up to the driver and smell his breath. The dog will then notify the officer in some way if the driver is impaired.

  • Newsfeed Monster||

    Think about it, how often do you hear about accidents caused by stoned people? Regardless of the legal status of marijuana there are thousands of stoned people on the road at this very moment driving perfectly safely. Even where it is quasi-legal, like Amsterdam, the streets aren't filled with mayhem. Those who aren't able to drive safely while stoned aren't likely to choose to do so. Unlike alcohol it's not the kind of drug that lends itself to taking stupid risks.

  • Dr. Frankenstein||

    Look, man, if there's one thing I know, it's how to drive while I'm
    stoned.

    Heavy Metal

  • Dr. Frankenstein||

    forgot the whole quote.

    Look, man, if there's one thing I know, it's how to drive while I'm stoned. It's like you know your perspective's fucked so you just let your hands work the controls as if you were straight.

  • sarcasmic||

    "Whoooaaa... good landing man!"

  • fried wylie||

    Any landing you can intoxicatedly-stumble away from, right?

  • sarcasmic||

  • SugarFree||

    If (note the giant IF) police officers were honest and uniformly applied it, I think a field test to determine impairment would be a good standard for reckless driving. And, you know, actually driving recklessly. There's nothing reckless about a checkpoint.

  • sarcasmic||

    Even that wouldn't work. That's like coming up with an objective way to measure teacher performance. No one's going to agree to it. You'll have the elderly parachuting into town and taking over the Country Kitchen Buffet. You'll have lawyers arguing that their client didn't pass the test but wasn't impaired, just old, or retarded, or something else. Exceptions will build up to the point where the test is meaningless, and anyone who can afford a lawyer goes free. Round and round you'll go until you're back to arbitrary levels of chemicals in the blood stream. Since the consumption of chemicals for pleasure is a sin, claiming that your client has a high tolerance is like claiming they're extra immoral. It won't get you anywhere.
    /rant

  • SugarFree||

    I know it won't be allowed to work, but:

    You'll have lawyers arguing that their client didn't pass the test but wasn't impaired, just old, or retarded, or something else.

    Please note I was talking about impairment, not intoxication. I'm fine with people losing their license for being old and/or stupid.

    I don't have a problem with reckless driving laws being harsh when reckless driving is actually reckless. The law is supposed to at least in part act as a deterrent to hurting other people using the threat of punishment.

  • sarcasmic||

    I'm fine with people losing their license for being old and/or stupid.

    I'm with you. Thing is, it's not fair. I mean, it's not the driver's fault that they are old or stupid. How can they be punished for something that isn't their fault?
    Consuming a chemical before driving? Well now that is indeed their fault and worthy of punishment.

  • SugarFree||

    No one told them to be born old.

  • nicole||

    In any case, a cutoff of zero is clearly nonsensical, regardless of the driver's age.

    And yet this is the law in...how many states now? I know IL is one of them.

  • Delroy||

    Dave's not here, man.

  • strat||

    This "alcohol or drug" thing is ridiculous. Ethanol is a drug, and writing laws like that only continues to promote the magical fantasy that it's somehow different.

    Of course, these are the same governments that habitually refer to stimulants as "narcotics" so perhaps I shouldn't be surprised.

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