Colorado Legislature Kills Arbitrary Standard for Stoned Driving…Again



Yesterday a Colorado Senate committee killed a bill that would have allowed juries to convict people of driving under the influence of drugs based on nothing more than a test indicating a THC concentration of five nanograms per milliliter of blood. That cutoff has no real scientific basis, and experiments indicate that many pot smokers can drive competently at THC levels far above it. Bills aimed at establishing a per se DUID standard of five nanograms have failed repeatedly in Colorado because of concerns that it is not a good indicator of impairment. But after voters approved Amendment 64 last November, supporters of a new DUID rule tried again, arguing that marijuana legalization would lead to increased consumption, magnifying the danger posed by stoned drivers.

This time around, backers of H.B. 13-1114 offered a compromise: Instead of being automatically guilty of DUID at five nangograms (which is now the rule in Washington under I-502, that state's marijuana legalization initiative), drivers who tested at or above that level could present evidence that they were not in fact impaired. But that approach still shifted the burden of proof from prosecutors, who under current law have to present evidence of impairment, to defendants, who would have to rebut what in practice might prove to be a powerful presumption of guilt. With a "permissible inference" of DUID at five nanograms, says Denver attorney Rob Corry, "A person coming into court is guilty until proven innocent….If you put a number on it, juries are going to latch onto that five-nanogram number, whether it's a permissible inference or a per se [standard], and the effect will be that innocent people are convicted, whether or not they're impaired." 

H.B. 13-1114, which was endorsed by the Amendment 64 Implementation Task Force (a panel appointed by Gov. John Hickenlooper to advise the state legislature on how to regulate marijuana), received final approval from the state House of Representatives on April 5. But on Monday the Senate Judiciary Committee, by a 3-to-2 vote, decided to indefinitely postpone consideration of the bill with just two weeks to go in the current legislative session. "What is the problem we're trying to solve?" asked Sen. Jessie Ulibarri (D-Commerce City), vice chairman of the committee. "I take it very seriously for people to drive impaired," said Sen. Kevin Lundberg (R-Berthoud), another committee member. "I also take it very seriously for the government to prosecute people who aren't impaired."

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  1. Is MADD completely absent in that state?

    1. Ya I’m kinda shocked that they haven’t weighed in huge on this.

  2. Is there some university in CO that has people with actual statistical and experimental skills that could, you know, actually run tests on a closed course?

    1. I’m sure there is, but that wouldn’t make a whole lot of difference. All people are different, an no amount of statistics or experiments will come up with an amount that works for all people.

      There are already laws for careless and reckless driving, the state of mind of the person should not have any bearing on punishment for either of these.

      1. I was under the impression that NHTSA had already run tests, similar to the ones they did with alcohol (that helped establish initially the .10 and then later the .08) standard.

        It is true that people vary. It’s true with alcohol too. Some people can drive MUCH better at a .08 than others.

        The standard should be such that most people are impaired to a measurable significant degree. It’s not hard to establish such a level with the type of tests that NHTSA has run with alcohol. You use a skid pad, etc. test reaction time, cone avoidance, stuff like that.

        IME, and DRE’s I’ve spoken to agree, marijuana is MUCH MUCH less problematic than alcohol when it comes to impairing driving. First of all, it doesn’t tend to incite recklessness like alcohol frequently does (speeding, driving beyong ability), but in many cases quite the opposite. The guy you see driving 30 in a 45 zone is the one more likely to be stoned than drunk imo.

        The problem with MJ is that since it hangs out in the fat cells, etc. chronic (no pun intended) users will always have THC in their bloodstream,… BUT that THC level won’t be impairing to any significant degree and shouldn’t trigger penal liability.

        Especially considering we are legitimizing MJ, we can’t turn around and then say you can’t drive with any measurable amount in your system. That’s just wicked retahded.

        1. As for Carston and “state of mind”, the reason we set prima facie limits is for a # of reasons, but part of it is that even if the person isn’t driving carelessly or recklessly, alcohol (let’s say at a .15 for instance) will impair their ability to divide attention (which is something the FST’s test for and most people don’t realize is a huge factor. They think it’s just a balance test. It is PRIMARILY designed to test the ability to divide attention). Dividing attention is important for driving. You can be totally fine as long as another factor isn’t thrown in and then the shit hits the fan when the impaired driver can’t process the additional stimulus. It’s like when you see the impaired driver sitting and waiting for the stop sign to turn green. And yes, I’ve had a couple of those. He might be able to drive a perfectly straight line, etc. and appear not to be reckless or careless but his ability to process and divide attention is impaired such that when an additional factor is thrown in, like a kid running into the roadway, the ability to respond is substantially impaired.

          1. We don’t have to wait for a collision/tragedy to happen. We set prima facie limits. They very well may ensnare people who are driving perfectly FINE given the stimuli they are presented with, but it doesn’t follow that given some factor to consider (like the kid running into the roadway) they will be able to process it anywhere near as quickly and effectively as a sober driver, if they can process it at all.

            But as for MJ, we need to set levels that are REASONABLE. Again, I had thought NHTSA had done some tests, but if not, I suggest they get on the ball and start doing them.

            Fwiw, I had also read (and I thought it was NHTSA tests as well), that stimulants to include cocaine and caffeine, IMPROVE driving up to a point. It’s basically a U shaped response curve. Up to a point, it’s beneficial. That is not the case with alcohol… or MJ as far as I know

        2. It is true that people vary. It’s true with alcohol too. Some people can drive MUCH better at a .08 than others.

          To be honest I know some people who can’t drive at .00.

  3. Referring to the picture, I loved how the local media made it seem like a scientific test that proved how dangerous stoned driving is when if you watched the entire footage it was obvious that she was driving as aggressively as possible for the fun of it.

    The media might as well say “wearing a racing helmet causes fast driving” and show clips from Top Gear.

  4. Alcohol has a per se standard. They wanted pot treated like alcohol. The result follows.

    How about you stop regulating alcohol so insanely?


    1. At Tanagra, when the walls fell.

  6. Ordinarily it is hard to get too excited about anything that is still being kicked around in a legislative committee, but this is worth the close attention because the Colorado legislature is breaking new ground, and many lives will be affected if they get it wrong. At least Reasonoids are getting timely coverage from the indomitable Mr. Sullum.

  7. Since most police cars have dashboard cameras, it shouldn’t be too hard to prove whether someone was driving erratically or not. Regardless of how much or how little THC, or alcohol for that matter, is in their blood stream should it? I guess it’s too much to ask for the government to prove that a person’s actual behavior was dangerous instead of just relying on a semi-arbitrary number.

    I liken things like this 5 nanogram/ milliliter rule to be similar to no tolerance policies for schools. It makes law enforcement so much easier when cops and DAs don’t have to actually think about the circumstances surrounding a specific case. “The law’s the law.”

    1. Bright lines set good law. THe law for DUI (in most states) is two pronged: Either over a prima facie limit OR impaired.

      Only one need be proven. That’s good law. I think about the circumstances all the time. Heck, I see the circumstances when DUI drivers kill or maim people. One of my academy classmates was killed by one, I had another friend killed by one, I have coworkers also injured by them.

      DUI is a dangerous crime, and prima facie limits are perfectly fair. Don;t drive at or above the prima facie limit. It’s that simple. Depending on your individual tolerance, you may not drive that badly at the prima facie limit, but the chemistry is such that you will be impaired, even if you don’t recognize it. Your ability to divide attention will be diminished and your reaction time will be increased.

      I don’t know if MOST police cars have dashboard cameras. Mine doesn’t, and many very large agencies (like the local KCSO) don’t. Either way, dashboard camera evidence is compelling, but so is breathalyzer levels. .08 or above is DUI. THere is no right or privilege to drive at a .08. It’s a reasonable, rational limit on behavior considering we are talking about driving, which is the single most dangerous thing most people will do and the area where most people will face more physical danger than any other aspect of their lives.

      1. We have less than 25% fatality incident per mile driven vs. our peak fatality rate (a few decades ago) and a huge part of that MASSIVE increase in public safety is aggressive DUI enforcement and frankly, a massive cultural shift in acceptance of DUI driving.

        1. Since the introduction of the 0.03 BAC law, statistically significant decreases were observed in alcohol-related crashes, alcohol related injuries and single vehicle night time crashes among 16-19 year old drivers, as we hypothesized. In comparison, the rates of total crashes, injuries and pedestrian fatalities showed no statistically significant decline or increase in the period following the introduction of the BAC law.

          I postulate that most of your DUI statistics are fucking bunk.

          1. Then quit your wanking and challenge me and say WHICH exactly is bunk, and then provide evidence it’s bunk.

            1. Any data you submit that summons the term “alcohol related” with out contrasting the overall rate, is most definitely bunk. Since I’ve been the only one to SOURCE ANYTHING, the onerous falls on you to provide it.

            2. Maybe the biggest thing that pisses me off about DUI laws is text messaging is only a 200 dollar infraction, but DUI is upwards of 16000 dollars. Oh, and the 0.08 shit is a lie, they arrest people at 0.01 all the time.

      2. good law is not throwing shit at a wall to see what sticks.

      3. Reckless driving DUI is a dangerous crime

        THere is no right or privilege to drive at a .08.

        Here is some actual like, science, and shit:

        For a so called libertarian, you sure seem to not give a shit about the 9th and 10th amendments.

  8. Is this real life?

    (wolfs down some Hot Pockets)

    1. bogart

      *holds empty Hot Pocket wrappers*

  9. This is amazing. The last two quotes of this blog post read as if they were plucked from some sci-fi novel about a distant future libertopia.

  10. Also: brilliant choice of accompanying photo and alt-text.

    Stoner chick Addy saves the down. Stoner girls are the greatest.

  11. The advocates of legilization will win the war when they have competently addressed two questions: 1) how to regulate the providing of this intoxicant to minors, and 2) how to addtess the DUID issue. Until these matters are addressed, the “drug war” will continue. Imagine the outcry every time a stoned driver kills someone, or a kid does something destructive after smoking even a bit.

    1. Um…millions of people already drive stoned, perfectly safely, everyday. Multiple major university studies have proven that stoned drivers do not pose any additional threat, and in fact may actually be less likely to get into accidents as they tend to drive slower and less aggressively.

      As far as kids getting a hold of it, the real world doesn’t work that way. When I was in high school there were no less than half a dozen people I could get weed from instantly. Alcohol on the other hand was very difficult to get, usually forcing us relying on someone’s older brother or paying a homeless guy to buy it for us.

      1. Yeah, driving slower is not driving safer. Plenty of people drive too slow for conditions, and having widely disparate speeds is going to lead to accidents.

        Try again.

        1. Yes. Speed variance is a huge danger factor.

          1. Anything to fit the narrative, amirite?

  12. Sometimes dude you just havet o roll with it.

  13. Re: the picture.

    Where’s that driving instructor’s hand?

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