‘Driving while stoned’ bill not a high priority for legislators

The Colorado Statesman

The 2012 legislative session ended on a high note for marijuana proponents, with two centerpiece bills opposed by the community going down in flames in a special session called by Gov. John Hickenlooper to address several pieces of lost legislation that died last week in a game of political chess.

The most significant bill, House Bill 1005, resurrected from the original Senate Bill 117, sponsored by Sen. Steve King, R-Grand Junction, and Rep. Mark Waller, R-Colorado Springs, would have expanded driving under the influence offenses to include the psychoactive ingredient in marijuana.

The measure would have offered prosecutors a tool in driving under the influence (DUI) cases to charge a driver with a DUID if they had a blood content of 5 nanograms per millimeter of THC at the time of the alleged offense, or within two hours after the traffic stop. The bill would have expanded the existing definition of “DUI per se” in order to offer district attorneys the prosecutorial tool.

Similar to DUI cases related to alcohol, traffic stops involve “expressed consent,” in which driving is considered a privilege, so if an officer has probable cause to believe that a driver is impaired, then the suspect could be asked to submit to a breathalyzer, blood or urine test. In the case of the DUID-Marijuana bill, drivers suspected of driving while impaired by marijuana would have been asked to submit to a blood test to determine their THC levels.

The legislation took perhaps the longest and strangest trip of any bill moving through the legislature this year, having died on the Senate floor on May 1 on a voice vote before sponsor King used a procedural rule to resurrect the bill for a recorded vote. The Senate then backed the bill by a one-vote 18-17 decision. The deciding vote was Sen. Nancy Spence, R-Centennial, who opposed a similar measure last year, but changed course this year over frustrations with an “abuse” by the medical marijuana community in Colorado.

With only a week to then clear the House, SB 117 came down to the wire last Tuesday, but fell victim, along with several other bills, to political games when House Republican leadership called a recess of the House in an effort to stall civil unions legislation before a midnight deadline. It appeared that the marijuana DUID bill was once again dead.

But then Gov. John Hickenlooper, irked by the political gamesmanship and dedicated to giving civil unions floor debate, called a special session of the legislature, adding the so-called “D-U-High” bill to the call. Introduced in the special session as HB 1005, the bill made it through the House State, Veterans and Military Affairs Committee on Monday on a vote of 6-2, and then through the House on Tuesday. The bill then made it through the Senate State, Veterans and Military Affairs Committee Tuesday afternoon on a vote of 4-1, with only Republican Sen. Tim Neville of Littleton opposing the bill.

But when the bill made it back to the Senate floor in its resurrected form, Spence was not around. She was attending a family event in San Diego, according to sources, that had been planned well in advance of the unexpected special session. Without Spence’s support, the bill died once again on a voice vote. King again used the procedural motion to call for a recorded vote, but the result proved less than desirable that time around. The vote came in tied at 17-17, enough to kill the bill.

And then, proving that the bill was in fact the official “zombie” bill of the 2012 legislative session, both aisles of the Senate held caucuses on Wednesday morning to determine whether to resurrect the bill again on Thursday when Spence would be back in town. That would have, however, required yet another day of the special session, which was ending on Wednesday. Both caucuses realized that other lawmakers would not be around on Thursday, and so the final decision was made to let DUID-Marijuana rest in peace. Still, the outcome was “disappointing” to King, who took the result very hard.

“The trouble with special sessions and having to work around those type of issues is very challenging. The real issue is my inability to convince five members of my own party who were there and could have caused this to go another day until [Spence] was there...” said King. “If there’s anybody to blame here for the failure of this bill, it is me, and it is not by any stretch of the imagination Nancy Spence.”

But Senate President Brandon Shaffer, D-Longmont, did blame Spence for not making the vote, telling reporters on Wednesday following the end of the special session that consideration was given to force her back for the vote. Shaffer excused Spence from the Senate on Monday, but changed her status to absent when she missed the recorded vote.

“The disturbing part is there was a debate about this being a real public safety issue… and ultimately that public safety debate is going to have to wait until next January… to bring that bill back, and that’s really the ramifications of this,” said Shaffer.

Spence did not return calls by The Colorado Statesman seeking comment.

Meanwhile, Boulder District Attorney Stan Garnett — considered a close friend to the medical marijuana community in Colorado, and thus putting him in a tough position to defend the bill — agreed that the legislation would have made the work of prosecutors better by offering a tool to deal with drivers who are a danger to the road because they are stoned.

“Indeed many of the folks opposing this bill today are folks that I consider to be friends within the medical marijuana patient community. However, the same basic principles that led me to those positions — efficient use of public resources and the paramount importance of public safety — has led me to support this bill…” Garnett testified on Tuesday.

His comments, however, were rejected by opponents, who argued that the determining THC level is too low. They believed that habitual marijuana users, such as those who take it for medical reasons, often wake up in the morning with a level of 5 nanograms of THC or more, before even smoking or ingesting any marijuana.

Sen. Morgan Carroll, D-Aurora, led opposition to the bill in the Senate. In addition to scientific concerns, Carroll didn’t believe the bill would have been effective. “The way to stop driving while impaired is through education, by a greater presence on the street, by good police work, and by having good prosecutors use good methods to be able to prove each case beyond a reasonable doubt.”

“If we vote this out today thinking that there will be someone making a decision not to get behind a wheel because of this piece of legislation… we are kidding ourselves,” she continued.

Lawmakers had considered amendments that would have authorized educational courses on how marijuana causes impairment, but none of those proposals advanced. Lawmakers had also tried to amend the bill to exempt patients on the medical marijuana registry in Colorado, but that amendment also failed.

Dozens of opponents lined up in committee hearings over the life of the bill to express their concerns. Some even shouted at Rep. Jim Kerr, R-Littleton, chairman of the House State, Veterans and Military Affairs Committee, for limiting testimony on the bill on Monday night. The sergeants-at-arms watching over the hearing reprimanded a few. Medical marijuana industry spokespeople and representatives, however, quietly stated their case to lawmakers.

“This is a bill that unfairly and unnecessarily criminalizes Colorado citizens…” said Mike Elliott, executive director of the Medical Marijuana Industry Group. “This bill ends up dismantling certain basic tenets of our criminal justice system, including undermining the state’s burden to prove guilt beyond a reasonable doubt, doing away with the presumption of innocence, and crippling a defendant’s right to a jury trial.”

Funding for enforcement

Driving while impaired wasn’t the only cause marijuana proponents fought against during the special session. Rep. Beth McCann, D-Denver, attempted to resurrect a bill that would have transferred $7.7 million from the medical marijuana registry cash fund to the Department of Revenue in an effort to provide adequate funding for enforcement operations.

She came up against resistance from party leaders who questioned whether House Bill 1004, resurrected from House Bill 1358 in the regular legislative session, fell under the call by the governor for the special session. Hickenlooper had only specified the DUID bill in his call regarding marijuana issues, so leaders questioned whether it was appropriate to hear HB 1004. But in the end, Kerr, whose House State, Veterans and Military Affairs Committee was also hearing HB 1004, decided to let the hearing proceed.

The bill aimed to address an expected reduction in medical marijuana enforcement staff. The enforcement division is likely going to go down to 12 staffers, when in reality the department needs at least 35 regulators to perform adequate duties, according to enforcement officials.

“This bill will increase enforcement efforts and will result in better enforcement overall of the marijuana situation,” McCann said on Monday. “We have seen an increase among our young people of marijuana usage, and this bill will assist our enforcement officers, especially the locals who don’t have the resources.”

George Thompson, senior director for enforcement at the Department of Revenue, agreed that it would be difficult for his office to conduct medical marijuana enforcement without additional resources.

“You can do the math for yourselves as to how effective and wide-ranging our enforcement would be with 35 people versus 12,” he said.

But critics said the measure violates the constitution by diverting money from the Department of Public Health and Environment, which operates the medical marijuana registry. When Colorado voters in 2000 backed medical marijuana, the amendment called for fees related to the medical marijuana registry to be used for medical cannabis registry services, not for enforcement, according to opponents.

“The registry has been paid into by patients, and the constitution is explicit that the money that goes into this registry must be used only for the direct and indirect cost of administering the Department of Health registry,” said Rob Corry, a well-known medical marijuana attorney in Colorado.

Corry said that had the bill passed, he would have filed a lawsuit challenging the legality of the measure.
“It is unconstitutional,” he said. “It takes away from a patient registry that is supposed to be a cash fund.”

Peter@coloradostatesman.com