Stoned Driving Measure Revived As Part of Colorado Pot Shop Bill



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. 

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  1. Again with the potheads.

    1. Do you have a problem with potheads?

      1. Sure, I think they’re disgusting.

          1. I think right now Libertymike is rubbing his hands gleefully while preparing to type some kind of response to my ‘generalization’ of pot smokers. I’m willing to bet he also, at some point, said “I’ve got you now.”

        1. Why?

          1. Because pot is gross.

            1. Ke$ha smokes it.


              1. I know, I’ve seen the pictures.

            2. Maybe you’re not doing it right.

              1. I’ve never done it.

                1. Then how do you know it’s gross?

                2. Then your claims of grossness are utterly pointless. That’s like a virgin saying sex is gross.

                  1. I’ve been around people that have smoked it and the smell is so foul I knew I did not want. I also have no real desire to engage in any sort of mind altering activities to the point that I even hate taking pain medications. You like it, you smoke it. It’s not going to ruin my day.

                    1. If you don’t like the smell there are what they call “edibles,” though the effect of eating the stuff is way different from smoking it.

                    2. Which is better?

                      I only ask because I’m planning trips to CO and WA.

                    3. Which is better?

                      Couldn’t tell you. I’ve only tried pot brownies once, and that was twenty years ago.

                    4. In all of my years, I’ve only been drunk twice and that sucked. I’ve never gotten high except from pain medications that I’ve had to take and that sucked. Every experience I’ve had of that sort has sucked, therefore I have chosen not to take part in it anymore. If I drink, which I do because I like some alcoholic beverages, it’s only a couple.

                    5. You are a tower of temperance.

                    6. You are a tower of temperance.

                      Tell me about it. I just wish it was worth something.

                    7. Shit…

                      …I’ve been drunk twice in one day.

                    8. One of those times I got drunk I got so drunk I was still drunk the next day. And it was August. And it was my son’s birthday. And we had an outside party.

                    9. If you don’t like it, good for you, you’re probably better off without it. Some people have the need to amuse themselves with intoxicants and some don’t. But I find it funny that some people find the smell offensive. Even before I knew I liked it as a drug, I thought it smelled incredibly good.

                    10. Even before I knew I liked it as a drug, I thought it smelled incredibly good.

                      That’s something that I can’t even fathom. To me the smell is absolutely terrible.

                    11. It is when your in-laws suddenly show up, unexpected and uninvited; otherwise, it has an awesome aroma.

                      To be fair, I absolutely abhor cigarette smoke. The worst is being stuck in a car with a cigarette smoker in the winter. Yes, its been years, but just thinking of it nauseates me.

                      spark, I’ll give you a “I’ve got him now” moment. No person is allowed to smoke cigarettes in my car or in my house.

                    12. No person is allowed to smoke cigarettes in my car or in my house.

                      Mine either. Ever since I quit smoking years ago the smell of cigarette smoke makes me gag too. When I was growing up, my parents smoked constantly and it didn’t really bother me too much. Now it makes me gasp for air whenever I get a whiff of it.

                    13. Since I quit I like the smell of tobacco smoke. That’s not to be confused with the nasty odor of stale tobacco. But fresh wafting tobacco smoke smells really nice.

                    14. What about somebody smoking a cigarette in your car? In the winter?

                    15. Even when I was a smoker I didn’t smoke indoors. My wife hasn’t quit and she goes outside. I can tolerate smoking in a car if a couple windows are down. Even when I was a smoker I couldn’t understand smoking in the car with the windows up. The smoke would burn my eyes.

                      When I quit it was in the winter. I used Chantix. Stuff gave me gas so bad that even though I wasn’t smoking, I was still driving around with at least one window down.

                    16. So, do you permit people to smoke in your car?

                      It sounds as if you do. If so, you are a better person than me.

    2. Fuck these cancer patients. Now they want to drive. At least they’ll be dead soon.

  2. Since neither the police organizations nor the state attorney general are legislators, why are they being a heckler’s veto?

    1. Seriously.

      Blake’s office said he would not support the bill without the amendment

      Who gives a shit? That’s not your job.

    2. The best thing can happen to Colorado is to round up and deport all the California expats who are, after destroying their home state, moving to the Mountain West and voting for increased statism.

  3. You don’t think all the people making money off of the WoD are going down without a fight, or at least carving out money for themselves, do you?

  4. a ban on out-of-state investors

    Wouldn’t that be unconstitutional?

    1. This type of thing IS within the purview of the Commerce clause.

      1. Note that the constitution does not affirmatively, unambiguously or unequivocally grant Congress the power to regulate commerce among individuals or private businesses.

        Both the framers, and more importantly, the ratifiers, understood the difference in meaning between people and states. The commerce clause does not include the word the phrase, “among the people” and therefore, the proposition that Congress has the power to regulate commerce among individuals and private businesses is unsupported by the text.

    2. And how far would ban go? Would a potential MJ business have to transact solely with a Colorado chartered bank that only excepts deposits from Colorado residents? Someone needs to inform them that currency is fungible.

  5. I have to agree with this article and vis a vis the 5 nanogram limit. I’ve made over 300 dui arrests with about a dozen being for mj and they were all WAY WAY WAY above 5 nanograms. If 5 nanograms isn’t impairing, it shouldn’t be the prima facie limit.

    I’d also like to know what “cops” are demanding this crap. I suspect it’s police chiefs, iow copocrats, not REAL cops.

    1. Even more than with alcohol, I think that a prima facie limit for THC is a bad idea. Pot affects different people very differently. There are people I know who I wouldn’t want driving at all after smoking any amount. And I know other people who smoke pretty much non-stop and about whose driving I have no concern at all. You should have to demonstrate that a person was actually impaired in order to convict for DUI.

  6. Rep. Dickface can be reached at

  7. As I said yesterday or Tuesday or whenever, isnt there a CO university that has some professors who understand statistics and the scientific method and could, you know, actually run experiments to see what level causes impairment?

    1. They should also do the same with alcohol. I dont, per se, have a problem with the .08 limit, I would just like to see some science behind it.

      1. And since I mentioned it, here is some results from a 25 year old study on alcohol:

        1. REACTION TIME. Impairment was found at lower BACs for complex reaction time, as compared with studies of simple reaction time. Typically impairment appeared at higher BACs than in other areas.

        2. TRACKING. A majority of studies reported impairment at or below BACs of 0.05%. Differences between types of tracking tasks appeared less important than the context in which tracking performance was studied, with some studies using multi-task situations.

        3. CONCENTRATED ATTENTION. Concentrated attention appeared to be the least sensitive area to alcohol impairment, with no study finding impairment below 0.05%.

        4. DIVIDED ATTENTION. Most studies of divided attention found impairment at quite low BACs. Impairment began at less than 0.02%, and a majority of studies found impairment at or below 0.05%.

        5. INFORMATION PROCESSING. Information processing skills appear to be impaired at relatively low BACs with most studies reporting impairment at or below 0.08%.

        1. 6. VISUAL FUNCTIONS. Studies of oculomotor control tended to show impairment at low BACs, while other visual functions such as glare recovery, visual acuity, and flicker fusion, did not appear to be impaired at low or moderate BACs when studied by themselves.

          7. PERCEPTION. Studies in this area showed relatively few findings of impairment below 0.08% BAC.

          8. PSYCHOMOTOR SKILLS. Tasks which required skilled motor performance and coordination were more likely to be impaired at lower BACs, while studies of other psychomotor tasks tended not to show impairment below 0.07% BAC.

          9. DRIVING. A considerable variation in results was found, depending on the behavioral demands imposed by the various driving tasks.

          1. Yea, the NHTSA studies on alcohol are available. I’ve skimmed them (one of our instructors had them during one of my FST classes)

            1. I expected that the alcohol studies existed. Not they need to do the same for pot and find what is roughly equivalent to .08% BAC.

              1. Studies on pot are banned under federal law if I am not mistaken. I believe they did studies to prove it should be illegal, and when the studies failed to support the predetermined conclusion, future studies were banned.

                1. Wouldn’t surprise me. The drug warriors can’t stand having the truth get out to the public

            1. Noooo! You can’t legislate against that, I’d never be able to commute to work in time to start my shift!

            2. I’ve seen other unscientific “studies” like this before. The one I saw, and this was YEARS ago, came to the conclusion that you needed almost 5 drinks to be as impaired as someone who had been up for 24 hours.

              The other part I take issue with is the fact the not everyone is equally impaired at a given limit. Some will drive fine at .08 and others not. It’s arbitrary.

              1. It IS arbitrary to an extent. So are having an age to drink, to smoke, and to have sex.

                The question is – just because impairment VARIES at a .08 does that mean that it’s unjust or bad policy to set such a limit. I say no.

                1. I think any policy or law that ever punishes anyone who is innocent is bad. Does the .08 limit do that? I don’t know, but I suspect it can. I think a set limit for THC definitely would.

            3. If DUI is going to be this heavy business serious criminal offence, then so should everything else that can cause bad driving, like being sleep deprived, having kids in the car, fucking with the radio, making phone calls, etc. The fact that DUI is punished so much more harshly than these other things (if they are even punished at all) shows that it is a moral reaction, which is inappropriate in a law that is supposed to be only about road safety.

      2. I don’t, per se, have a problem with the .08 limit

        I do. What does impaired mean? To what degree? My issue with BAC laws is that there are HUNDREDS of things that have the potential to cause an accident that we do not preemptively cite people for. We don’t cite them for driving tired, simply because there is no test for it. Yet we are led to believe that someone who would drink and drive is a monster and should be punished BEFORE actually infringing on the rights of another, while someone driving after being up for 24 hours, somehow shouldn’t.

        1. Correct, which is basically what the study says:

          9. DRIVING. A considerable variation in results was found, depending on the behavioral demands imposed by the various driving tasks.

          Q: Does drinking mean you shouldn’t be allowed to drive?

          A: Depends on who you are, when it is, and where you’re going.

          The current drunk driving regime is deplorable. It’s a life altering trump card that cops like to have for any traffic stop after 9 PM. Sure, the intentions might be noble, but there’s better ways from a public policy perspective to get the same effect without being so damn draconian.

          1. “Sure, the intentions might be noble, but there’s better ways from a public policy perspective to get the same effect without being so damn draconian.”

            This describes nearly every “public safety” law in effect, unfortunately.

    2. isnt there a CO university that has some professors who understand statistics and the scientific method and could, you know, actually run experiments to see what level causes impairment?

      Not only that, but there would probably be no shortage of willing volunteer test subjects.

  8. Um, I know this is crazy talk, but does there need to be a limit?

    What’s the limit for driving tired? What’s the limit for driving while in pain? What’s the limit for being distracted by talking to a passenger?

    God forbid we didn’t have an objective, scientific number for when we can toss people in the clink.

    1. In some ways I agree with you. On the other hand, I dont want to rely on a cops judgement for determining criminal DUI. If it was just a ticket, it wouldnt be so bad, but as its criminal, an objective standard seems necessary.

      1. Even so it’s relative. A teetotaller can get tipsy off of a couple beers, while an experienced drunk can walk a straight line with a twelve pack under his belt.

    2. The NHTSA studies are scientific. And just because we can’t measure and quantify tired (vs. alcohol) doesn’t mean we shouldn’t set prima facie limits

      Everybody would probably agree a BAC of .25 should be illegal (I had a .464 once btw, That’s over the LD50). So, it’s a matter of what # is “reasonable”.

      The studies have shown significant measurable impairment at a .08.

      1. I think there should be more of a sliding scale though. As I understand it, while there is impairment at .08, the vast majority of the DUI fatalities are caused by drivers at much higher levels, like at last .12 or .16 or something.

        1. I think there should be one, too. Like different crimes. Some states have “aggravated DUI” which is like DUI at over a .20 for instance.

          It would make sense to have a DUI 1st degree for over a .25, DUI 2nd degree for over a .15 and DUI 3rd degree for a .08 or above, for instance.

          1. NJ basically does this, I believe they call it DUI for .08 – .10 and DWI for .10 and above. Which isn’t much of a distinction, but of all the people I know that have gotten one, only one has gotten the latter (and he deserved it). Odd coincidence there, but there are a couple reasons why that would be the case.

            I like the idea of a sliding scale, but I think DUI should be used to enhance the penalties associated with moving violations, i.e. .00 – .05 is standard penalty, .06 – .12 double penalty, etc. This way people are punished for things that they’ve actually done and the punishment for a minor offense isn’t so over the top.

  9. “It’s an important matter of public safety,” said Rep. Dan Pabon (D-Denver), chief sponsor of H.B. 1317.

    “Money” and “Public Safety” are interchangeable in this context.

  10. I admit I take DUI’s a little personally. i’ve had a lot of friends killed and/.or injured by DUI’s

    My academy classmate was killed by one…..e-williams

    He was a very interesting guy. Spoke fluent Russian and Greek. Nicest guy ever.

  11. Sounds like some crazy smack to me dude.

    1. Smack is whack, duder.

  12. They wanted it treated like alcohol. Alcohol has a per se standard.

    Stop whining.

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