Yesterday I noted two bad amendments that were added to Colorado's pot shop bill at the behest of police organizations: a ban on out-of-state investors and an extension of the rule requiring retailers to grow at least 70 percent of the marijuana they sell. It gets worse. The cops, joined by Colorado Attorney General David Blake, also demanded an amendment creating a "permissible inference" of driving under the influence of drugs (DUID) for marijuana consumers with THC blood levels of five nanograms or more per milliliter. Yes, this is the very same measure that was approved by the state House of Representatives on April 5 and killed by the Senate Judiciary Committee just three days ago. The amendment is based on the same THC cutoff that the state legislature has repeatedly rejected because it is not a good indicator of impairment. Although it still isn't, yesterday the House State Affairs Committee approved it as an amendment to H.B. 1317, the bill laying the groundwork for regulation of state-licensed marijuana stores. Blake's office said he would not support the bill without the amendment, while some police chiefs wanted an even lower cutoff. "It's an important matter of public safety," said Rep. Dan Pabon (D-Denver), chief sponsor of H.B. 1317.
Presumably Pabon meant that preventing accidents caused by people who are too stoned to drive is an important matter of public safety. It does not follow that allowing DUID convictions based on nothing more than a five-nanogram reading is a fair or sensible way to do that. Under current law, drivers can be convicted of DUID based on evidence of impairment, including but not limited to blood test results. Is there any reason to think this approach is inadequate? Perhaps legislators are hoping that an official benchmark for DUID based on THC in the blood will have an additional deterrent effect. The problem is that individual reactions to marijuana are so highly variable that any such standard will make sense only for some drivers. While novice or occasional pot smokers may be dangerously impaired at five nanograms, regular consumers, including patients who use marijuana as a medicine, may exceed that level all the time, even when they are perfectly capable of driving safely. As Teri Robnett of the Cannabis Patient Action Network told the House State Affairs Committee before it approved the DUID amendment, "Patients like me…will continually maintain a blood level far above five nanograms and without any impairment." A five-nanogram standard unjustly exposes people like Robnette to the risk of being treated as a public menace whenever they get behind the wheel.
Under the DUID amendment, drivers would not be automatically guilty at five nanograms. They could still present evidence that they were not in fact impaired. So let's say Robnett is driving down a highway and briefly drifts from one lane to another before moving back—not because she is stoned but because she is distracted by a wasp that flies into her car. A cop pulls her over, thinking she is driving erratically. It emerges that she consumes marijuana regularly, and a test shows a THC level of 15 nanograms. If she goes to trial on a DUID charge, she can explain that tolerance and experience allow her to function fine at THC levels far above five nanograms and that experiments show people can exceed that level and still drive competently. But the jury might very well ignore all that, assuming that the law would not set a cutoff of five nanograms unless it was an accurate indicator of impairment. In practice, the permissible inference would create a pretty powerful presumption of guilt. Knowing that, someone in Robnett's (hypothetical) situation might very well decide to plead guilty even though she did not in fact pose a danger to anyone.
We can expect the pot shop bill to get even worse before it's enacted. Since the state legislature has to complete work on it by May 8, interest groups like the Colorado Association of Chiefs of Police and the County Sheriffs of Colorado can exert decisive pressure by threatening to disrupt the process.