Colorado Legislators Block Repeal of Pot Legalization While Approving Stoned Driving Bill



As the Colorado General Assembly, with one day to go in its current session, finalizes legislation aimed at taxing and regulating marijuana, the good news is that a last-minute effort to make legalization contingent on voter approval of the new cannabis levies failed last night. "Facing a filibuster threat and defeat in the House," A.P. reports, "senators backed off the plans and adjourned Monday just before 10 p.m. without advancing the repeal." The measure, which as a constitutional amendment would have required approval from two-thirds of the legislature plus a majority of voters, never had much of chance. State Rep. Dan Pabon (D-Denver), chief sponsor of the main marijuana regulation bill, put the odds that the repeal proposal would win support from two-thirds of the House at 1 in 1,000.

The bad news is that the state Senate, after rejecting the idea on five other occasions, finally agreed with the House that a driver whose blood contains five or more nanograms of THC per milliliter should be considered impaired. Unlike earlier bills, this one does not establish a per se standard, which would make someone testing at or above five nanograms automatically guilty of driving under the influence of a drug (DUID). Instead the bill, which is expected to be signed soon by Gov. John Hickenlooper, establishes a presumption to that effect that defendants can try to rebut by presenting evidence that they were not in fact impaired. In practice, however, this ostensibly rebuttable presumption may prove to be essentially the same as a per se rule, meaning that regular pot smokers, many of whom can drive competently at THC levels far above five nanograms, could be convicted of DUID even when they pose no threat to public safety.

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  1. Instead the bill, which is expected to be signed soon by Gov. John Hickenlooper, establishes a presumption to that effect that defendants can try to rebut by presenting evidence that they were not in fact impaired.

    What happens when we assume?

    1. Fuck. This 5nng thing is pretty much the definition of “precise but not accurate.”

      They came up with a specific number. Whence that number? Out of their asses, that’s where.

      And when reasonable people said, FUCK YOU to 5nng, they responded with “What? Why are you in favor of stoned driving

      Of course, this all started with the way WA crafted their law. Once the instituted 5nng, then CO could hardly counter with a lower number, right? I mean, aren’t CO lives worth just as much WA lives?

      Human beings are fucking retards.

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  2. this ostensibly rebuttable presumption may prove to be essentially the same as a per se rule, meaning that regular pot smokers, many of whom can drive competently at THC levels far above five nanograms, could be convicted of DUID even when they pose no threat to public safety

    I’m pretty sure that was the point. Do you think they haven’t learned from drunk driving laws how much control and money can be gained by setting the limits absurdly low, with no recognition that different people are affected differently?

    1. Individual biological differences – no such thing! Everyone is affected by everything the same way. And none of them can control their dosage.


      1. Nobody is saying that. Nobody says that people exhibit the same level of impairment at .08 as others. NHTSA studies showed that .08 significantly impaired most people.

        It’s a bright line.

        Compare it to Miranda. Clearly, some people are not intimidated by arrest. But many are. So, we set a bright line and say ALL arrestees get miranda warnings, to help overcome the intimidative process and before questioning. Even though NOT all arrestees are intimidated by the process, SOME are, and that’s enough to set a bright line. An individual arrestee need not prove that HE was intimidated by arrest. It’s a bright line.

        Just like .08.

        If you are such an accomplished drunk that .08 does not significantly impair you, then good for you. That doesn’t vitiate the justification for the .08 level, anymore than the fact that I (when I was arrested for a traffic offense) was not intimidated by the process, vitiates the necessity for miranda.

        1. I see your point about the bright line. But I still object to the unrebuttable standard. I think that any law that treats a single person unjustly is a bad law.

          1. It doesn’t treat single person unjustly. The standard is set, there is no “right” to drive with .08 of alcohol in your system . People know the law, it’s applied EQUALLY TO EVERYBODY.

            DUI is about the fairest law there is in existence because the INNOCENT have foolproof defense. if you are not .08 then not only will the breath test prove that, but in my state, you have the right to be taken to a medical facility and get a second test (of blood) taken by a dr of YOUR choice to rebut the state’s sample.

            It’s the only crime I am aware of where the innocent have foolproof protection against false prosecution. If you aint .08, the breathalyzer is your best friend.

            1. Alcohol and cannabinoids behave differently in the body (obviously). You may have zero impairment at 0.08% blood alcohol, but if you have that level of alcohol in your blood it means you drank something very recently. You can have 5 ng/mL THC in your blood because you smoked a joint last week. It’s a ridiculous law.

    2. The DUI levels are not set absurdly low. 5 nanograms otoh, IS absurdly low. The NHTSA documentation on impairment at .08 for MOST people (obviously experienced drunks experience far less impairment at .08) is abundantly clear – there are a lot of run over cones, missed turns, etc. that helped establish the .08 level.

      DUI laws are not about control and money. They are about saving lives, and we have seen immense drops in motor vehicle fatality rates over the decades where we have improved DUI enforcement. Certainly other factors (improved emergecny medicine response) etc. play a part but so does DUI enforcement.

      Regardless, 5 nanograms IS too low. Let’s get some NHTSA skidpad studies and set a REASONABLE limit

      1. They are about saving lives

        What a load of bullshit.

        1. Hey, dunphy has to justify violations of various amendments in the name of “public safety”. He’s just doing his job, amirite?

          1. There is no violation of any amendment. I realize Epi, that you are a dui apologist. I am not. And I have friends who are cops who have been arrested for DUI. Good. Drive DUI, pay the penalties. You can continue to be an apologist for people who are putting others’ lives in danger. I’m not. Life is sacred.

            I will also say that DUI is an area where many, if not MOST of the dui’s we catch these days are because other motorists get involved and call in these drivers on their cell phones to 911.

            It’s awesome. And ime, citizen witness testimony is extremely compelling come court time. These citizens are getting involved. They see the car in front of them weaving etc., they call us, and we make the stop.

            1. If it’s about DUI putting people’s lives in danger, then why is it treated so much more harshly than people who are impaired or distracted for other reasons? Why should driving while very tired, or texting and driving, or looking for something under the seat not carry the same penalties as DUI?

        2. The myriad of lives saved call bullshit on your claim. DUI was once looked at as quasi acceptable. Look at the old “road films” with brat pack members happily chugging down drinks on the highway etc. It was not a big deal.

          Change in attitude, and change in law has been a huge boon in public safety. The collision rates have gone down, as have the fatality rates, and less people are driving DUI.

          MADD is, frankly, a heroic organization and proof positive of the need for people to get involved with law enforcement and make the world a better place. MADD got cops and prosecutors and legislators off their asses and got shit DONE.

          1. MADD may have once done some good, but they should have disbanded 20 years ago. Now they are pretty much for anything that makes alcohol more expensive or less easy to get, whether or not it has anything to do with drunk driving.

            1. All one needs to do is search Balko’s old blog to see how evil MADD is.

              1. I miss being able to read Balko’s blog. I tried the HuffPo one and I just can’t deal with it.

            2. I think they have largely outlived themselves in that we HAVE good dui laws now, we have good enforcement, etc.

              Iow, their work is done. Pretty much every state has a .08 prima facie level and has prosecutors and a justice system that takes DUI seriously.

              Btw, one major accomplishment of my union (imo) is that we got a judge taken OUT of dui court assignment based on his history of ignoring the law (such as .08) on DUI cases. Basically, he wanted evidence of falling down drunk in order to find the guy guilty (these are bench not jury trials) of DUI despite the fact that the legislature (whose job it is to define what DUI is) does not define the crime of DUI that way. That’s not a required element.

              Anyway, a lot of cops, prosecutors, and concerned citizens were outraged that this judge was merely making the law as he wanted it to be, not as it was written.

              My union was able to get the judge reviewed by higher ups, and ultimately removed. He was replaced by a judge who rules on the law, not his personal beliefs.

              1. You better hope you never need me to piss on you while you’re burning.

              2. Wow, your union got a judge who actually used common sense and empathy fired in favor of one who would happily tow the party lion. You’re so powerful and tough, Dunphy! Definitely the toughest gang in town.

            3. MADD is evil and I would not piss on them if they were burning, at least not until they stoped flailing around.

    3. But how do you test if some people are affected differently than others? Even if 40% of people can drive competently at .10 blood alcohol levels, how do you differentiate them from the other 60%?

      1. You don;t. It’s just like Miranda. SOME people are intimidated by arrest, some aren’t. Depends on the person, the reason for arrest, the circs, etc.

        Yet, we set a bright line and say – since SOME people are intimidated and it’s an important protection, we will read miranda warnings to ALL arrestees. We need not differentiate the arrestees that are intimidated from those that aren’t. We set a bright line measure.

        NHTSA did a lot of skidpad, reaction time, divided attention, etc. studies and a majority of people show demonstrable substantial impairment at a .10.

        That’s enough to set a bright line limit. There is no RIGHT to drive with X amount of alcohol in your system. Driving is a privilege in the first place. You need to get a license and follow rules to do it.

        1. As long as taxes pay for roads, driving is a right.

          1. And in many states, DUI on private property is a crime too. And that ought to be a right, if you own the property or have permission to drive drunk there.

          2. As long as I pay my taxes, social security is a right.

            /libertarians can be morons too

  3. If you are able to successfully text while driving, that should be evidence of unimpaired motor vehicle and communications device operation.

    1. Sarcasm?

      1. Fist don’t do sarcasm.

        1. Honest Abe, the kids used to call me. But that might have been because of the stovepipe hat and all the wrestling I did with my bodyguard.

  4. Five nanograms is too low. In all the DUI marijuana cases I have had, they had MUCH higher levels. I’ve never seen somebody demonstrably impaired at such a low level. It encompasses people in a net of guilty, when they are using medical mj or recreational mj and some remains in their system when they drive – not enough to impair them to any significant degree, but enough to trigger illegality.

    The presumptive level should be based on the type of studies they did for alcohol, using the skidpad etc. .08 was shown to significantly impair MOST people, which is why it was established as the prima facie limit. I am certain that 5 nanograms impairs people nowhere near the extent that .08 of alcohol does.

    1. Does anybody have insight as to how this level was set? Given what Dunphy just said, whey didn’t they use the “skidpad” method to determine the level for impairment?

      1. Note also that in addition to the impairing effects of alcohol on actual skillz (divided attention, fine motor control, reaction time, etc.) alcohol tends to increase recklessness, etc.

        So, not only are physiological response factors harmed at a .08 level, but we also very often see behaviors like speeding and risk taking as alcohol levels increase.

        We do NOT see that with marijuana. People on MJ tend to drive cautiously, NOT recklessly.

  5. many of whom can drive competently at THC levels far above five nanograms, could be convicted of DUID even when they pose no threat to public safety.

    An arbitrary number is an arbitrary number. Maybe it should be higher than 5 ng/mL, I don’t know. But I’m sure there are some people who can drive competently when over whatever the legal BAC level is too.

    1. And there are some people who can’t drive competently even when they’re stone cold sober.

      Nobody wants to throw them in jail though, even though they wrecked a schoolbus.

      But if you drink, that’s a precursor that the government has determined is statistically likely to cause non-utopia, so you get into trouble even if you didn’t crash anybodies schoolbus.

      1. It’s no more arbitrary than requiring miranda for all arrestees, even those that aren’t intimdated, or setting a # for age of consent, or drinking age, etc.

        5 nanograms is just too low. I base that on seeing the blood results from a # of DUI marijuana arrests and the # is always much higher when we see impairment. I spoke to some DRE’s in my agency and with WSP who do a lot of DUI arrests, and a fair # of marijuana ones, and they agreed with me across the board. They haven’t seen impairment at 5 nanograms. .08 is based on legitimate reasons. 5 nanograms is a level that is pulled from legislators asses as far as i can tell

        1. It’s no more arbitrary than requiring miranda for all arrestees

          The fact that you can’t see a difference between a reminder of your rights and a non-rebuttable presumption of your guilt in a criminal case speaks volumes to your mindset, doesn’t it?

          1. No it doesn’t. It speaks to the concept that the law is a blunt instrument, and that setting bright lines is an entirely just way of defining law.

            There is no RIGHT to drive with .08 of alcohol in your system. The fact that you, as a drunk (not you, but a drunk) might be able to drive “ok” at .08 is irrelevant. The law can and does still set a bright line.

            We don’t wank that Johnny gets his miranda warnings, and I don’t wank that Johnny gets his implied consent warnings at .08. They are equally just DESPITE the fact that in both cases the underlying reasons may not apply (he may not be intimidated by arrest, he may not be substantially impaired).

            I love the way the DUI apologists come out in droves. DUI is a crime that hurts, maims, and kills people. It should be enforced aggressively, and thank God it is.

            And again, citizens get involved. Most of the DUIs I see are called in by motorists concerned by weaving etc. of the vehicle in front of them.

      2. That’s probably the biggest objection I have to DUI laws. There are tons of things that are just as bad for your driving competence as having .08% BAC. So why should someone who drives after being up for 36 hours and crashes his car be treated less harshly than someone who drives home after 4 beers and does nothing more dangerous than forgetting to signal or something?

        1. Because law enforcement and the law is a blunt, imperfect instrument. Fwiw, if it can be proven that somebody drove after being up for a period of time like that, it can be considered in the penalty phase of the case, and I have seen that happen before (especially with commercial drivers).

          But the person who drives after 4 beers is still making a personal choice that places others in danger and we rightly hold him accountable for it. The levels are set in stone, everybody knows them, and if you choose to drive after consuming 4 beers, you pays the consequences for your choice. It’s certainly fair.

          The problem with the sleeping thing is it’s hard to legislate and impossible to PROVE. we can prove blood levels via a breathalyzer. There is no way to prove how much sleep somebody got in the last 48 hrs. Basically, all you have to go on is what they tell you. We can still hammer them for the driving behavior they engage in, etc.

          But since we CAN prove blood levels, we go the extra step of setting a prima facie level where they are concerned, and good for us for doing so

          1. But the person who drives after 4 beers is still making a personal choice that places others in danger

            Dunphy, this is known as “begging the question.”

          2. OK. Suppose there were a test that showed how long it had been since someone had slept. Would you support making it a criminal offense to drive after, say, 36 hours without sleep even if that person had not caused any harm?

            See, even if I agree with you that there is no right to drive and .08 is the limit and that’s just how it is, DUI laws are still unjust in the disproportionate punishment compared to other things that can make people drive badly. If it is about safety and not a moral crusade, then other voluntary behaviors that can impair driving ability should be punished in the same way.

  6. Drugs are bad m’kay?

    But a nitrous party today is a far cry from the old days of “whip-its” “” cans of whipped cream huffed for the nitrous oxide.

    “It’s gone from a group of teenagers or college kids sitting around and huffing a half-dozen whip-it canisters to hundreds of kids getting together for a house party centered around a couple of 80-pound cylinders of nitrous,” Johns said.

    He said the problem has “industrialized” in the past five years as the popularity of the drug has grown and the Internet has made it easier to arrange huge parties.

    More hand wringing from concerned law enforcement? Maybe. Seems like they needed to create a new revenue stream from the War on Drugs.

    1. That’s a load of horseshit. I went to many, many parties a good 20 years ago that featured bigass nitrous cylinders. Panicky parents worried that their kids will do the same things they do. That’s where most of the bad laws in this country come from. Like the ones that the “heroic” MADD push for.

    2. Got to worry about something, I guess. Nitrous is pretty harmless and gets boring fast. I say have fun. Just use balloons rather than sucking straight from the tank.

  7. They’re being nicer about pot than about alcohol? I thought pot was supposed to be treated like alcohol. We have a per se standard. You get one too.

    1. What’s this “We” shit, Kemosabe? Are you assuming everyone else has a drinking problem as severe as yours? What about those of us who like the ganj and some beer? We get fucked twice?

      1. “We” being people who drink alcohol.

        The law never legalized anything. It imposed a regulation. That regulation was supposed to treat pot as alcohol. If you want to legalize something, hey, awesome! Go ahead and do that. These people didn’t do that. They didn’t INTEND to do that. They were happy to impose a regime like the one for alcohol. Part of that is a per se standard for driving.


  8. You don’t have to make a bad habit illegal when you can regulate it out of existence.

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