House committee passes bill to curb driving under influence of marijuana

The Colorado Statesman

The latest effort to set a standard for driving under the influence of THC, the active ingredient in marijuana, may finally draw enough support to pass.

Legislators have tried several times previously, including during last year’s special session, to set a limit of 5 nanograms (ng) as a standard for determining when a marijuana user is under the influence while operating a motor vehicle.

This year, the sponsors of House Bill 13-1114, Reps. Rhonda Fields, D-Aurora, and Minority Leader Mark Waller, R-Colorado Springs, are trying a different approach.

In past legislation, the 5 ng limit was considered a “per se” limit, which meant that if a driver’s blood level is 5 ng per milliliter of whole blood, the driver is assumed to be under the influence. For alcohol, blood alcohol content (BAC) of .08 per milliliter is sufficient to arrest someone for driving under the influence.

HB 1114 still includes the 5 ng limit, but it may not be enough to prove someone is under the influence. HB 1114 states that in a DUI prosecution for driving under the influence of THC, a jury may infer that a defendant is under the influence with a 5 ng level, but the defendant has the opportunity to prove that he/she is not impaired at 5 ng. Defendants are not able to dispute a BAC of .08; they can challenge the validity of the test but not the test itself.

The 5 ng limit is based on the amount of active THC in whole blood, known as delta 9 THC. That’s the type of THC that is active in the blood only for a short period of time following ingestion, typically from two to four hours. Latent THC, the THC that remains in the blood after the active THC has dissipated, can remain active in the blood for days after ingestion, according to a toxicology expert who testified Tuesday.

The House Judiciary Committee gave its unanimous approval to HB 1114 on Feb. 26, before a smaller-than-usual crowd in the Old Supreme Court Chambers. The bill moves on to the House Appropriations Committee for further action.

Waller told the committee that testimony from experts for previous bills showed that chronic marijuana users, such as medical marijuana (MMJ) patients, are consistently over 5 ng of THC and not necessarily under the influence.

The test to determine intoxication is a blood test that will be drawn at licensed facilities, such as hospitals or clinics, Waller told the committee Tuesday. A police officer will need to have probable cause to stop a driver, he said. If the driver declines the blood test, the driver’s license could be suspended for a year, but the prosecutor still has to prove intoxication beyond a reasonable doubt, he explained. Waller later told The Colorado Statesman that HB 1114 does not yet include the language regarding suspension for refusing the blood test, but he is planning to amend it.

Many who testified at the Feb. 26 hearing for HB 1114 pleaded with lawmakers to draw a distinction between recreational users of marijuana and medical marijuana patients. That included concerns from MMJ patients that their possession of a MMJ license, known as a “red card,” might be viewed as probable cause for a DUI stop. Waller disputed this, claiming that a red card might be used to show that the user is not under the influence, and that the driver’s behavior should guide probable cause.

“Should there be a distinction between the kinds of use?” asked Rep. Lois Court, D-Denver. She noted that alcohol is only for recreational purposes and using it is not a constitutional right, like MMJ. “We assume people have a right to their medication,” she added.

But Waller said driving impaired is driving impaired. With HB 1114, “we’re trying to enhance public safety by taking impaired drivers off the road,” to lessen the likelihood of auto accidents. “It doesn’t matter if it’s medical marijuana or recreational use of marijuana. You don’t have the right to get on Colorado roads and put citizens’ lives in jeopardy. You don’t have a right to drive — it’s a privilege — and it comes with responsibility… to operate [a motor vehicle] in the safest manner.”

“It’s about impairment,” added Fields. “When you get behind the wheel, make sure you’re not impaired.”

“I believe we’ve struck the right compromise” in including the permissive inference standard rather than a per se standard, Waller said. The standard included in HB 1114 was adopted by the Colorado Commission on Civil and Juvenile Justice, a coalition of legislators, judges, law enforcement and other stakeholders. Waller is a current member; Fields is a past member.

That group also includes Arapahoe County Sheriff Grayson Robinson, who testified in support of HB 1114. Robinson said he was “comfortable” with the 5 ng limit although he believed it is too high a limit. He also responded to committee concerns about probable cause, including a question from committee Chair Rep. Daniel Kagan, D-Englewood, who asked if probable cause would exist if a police officer stopped a car for a broken taillight, for example, and smelled marijuana smoke. “The odor of marijuana… does not get us to probable cause,” Robinson replied, although it could be part of the investigation into the driver’s possible impairment.

Those who testified for and against HB 1114 were in far fewer numbers than in previous years, when the Old Supreme Court Chambers was packed to overflowing. The chamber for the five-hour HB 1114 hearing was less than half-full.

Forensic Toxicologist Sarah Urfer of ChemaTox Labs of Boulder, who testified in previous years’ bills on the same subject, said that the 5 ng delta 9 level for impairment is valid regardless of type of user: chronic, recreational or MMJ patient. That level is backed by current studies, she said.

The Colorado District Attorneys’ Council, represented by Thomas Raynes and Mark Hurlbert, also spoke in favor of HB 1114. “The time for this bill has come,” Raynes said. HB 1114 will change public awareness and attitudes about driving under the influence of marijuana, he added. The probability that a driver could be convicted who wasn’t under the influence is miniscule, Hurlbert said, even for people who have had 6, 7, 8 or 9 ng levels. Rep. Joe Salazar, D-Adams County, told Hurlbert he had heard about a 90 percent conviction rate for driving under the influence of marijuana, although Hurlbert said he was aware of it only anecdotally.

Hurlbert told the committee that he is seeing more cases, including vehicular homicide and assault cases, with defendants who were under the influence of marijuana, and that was under just the medical marijuana law. “With the passage of Amendment 64 this is only going to grow,” he warned.

Matt Durkin, representing Colorado Attorney General John Suthers, said the Attorney General would prefer a per se standard but is comfortable with the compromise. “There is no constitutional right to jeopardize public safety,” Durkin told the committee. He said there have been 20 to 40 fatalities in the last few years where a driver tested positive for marijuana. Testing for marijuana intoxication has tripled in the last few years, and he said that even marijuana advocates acknowledge the negative impact that marijuana intoxication has on driving skills.

Several victims’ rights groups and representatives also testified in favor of HB 1114, but all said the 5 ng limit was too high. That included Laura Spicer, who repeated her testimony from two years ago. Spicer said her son was hit on his bike by an MMJ patient and motor vehicle driver who admitted to smoking just prior to the accident. “This bill is a good foundation to getting impaired drivers off the road,” but also noted that the law says impairment “in the slightest degree.”

HB 1114 drew opposition from about 30 people who signed up to testify against the bill. Some of the strongest opposition came from medical marijuana patients. Terry Robnett has fibromyalgia. “I’m not a stoner,” she told the committee. Medical marijuana helps control her symptoms. However, she said there’s no way to know just how much THC she has in her system at any time. Robnett said that 5 ng is an arbitrary limit without any science to back it up. This is not about public safety, she said. It’s about “we don’t like pot and don’t like people who use pot. We’re the only class of patients who are treated this way. This isn’t my recreation — it’s my medicine.” She asked the committee to create an exception in HB 1114 for MMJ patients.

Max Montrose participated in a KDVR story last year that tested driving under the influence of marijuana. He said that 24 hours after smoking cannabis, his delta 9 level was 6 ng. It takes much more than four to five hours for an active delta 9 level to drop below 5 ng, he told the committee, and he offered to be a test subject for the committee. “I’m not saying people should be able to smoke and drive,” Montrose said. But he said he works at a cannabis facility and reeks of marijuana odor by the end of the day. Montrose said he fears he could be pulled over, the officer would smell cannabis, and Montrose said he will be over 5 ng and not impaired.

“Most people agree that no person should drive impaired,” said Salazar, at the hearing’s conclusion. “My concern is that medical marijuana patients may be subject to discrimination based on asserting their constitutional rights as a medical marijuana patient.” Salazar said he intends to introduce an amendment to the bill on second reading that says a medical marijuana card cannot be used as primary evidence or as a factor in probable cause. Waller agreed to work with Salazar on that language. But he also later explained that other courts have said that a court can’t differentiate between types of users. “Impairment is impairment” and to create an exception in the law for medical marijuana users could create an equal protection issue, Waller said.

“The testimony left me with more questions than I started with,” said Rep. John Buckner, D-Aurora. “I’m not convinced we have the answer to this question.” Reps. Pete Lee, D-Colorado Springs, and Lois Court, D-Denver, also raised concerns about the bill, but eventually voted to approve it, at least for now.

“This bill is an outrage,” said Rep. Bob Gardner, R-Colorado Springs. It’s an outrage because it has taken three times and that the Legislature could not agree on a per se standard, he said. “It’s the height of hypocrisy to say we’re going to treat marijuana like alcohol” but not with the per se standard that goes with alcohol. And several legislators noted that Amendment 64 requires the state to regulate marijuana just like alcohol.

“I understand why you see this as a threat to your safety” and might lead to discriminatory practices, said Rep. Mike McLachlan, D-Durango, to the MMJ patients. He added that the amendment proposed by Salazar will “make sure your rights are protected. But the real problem is that our committee is charged with protecting public safety… we’re taking a step in the direction of protecting the public. That’s our responsibility.”

Kagan, who has voted against the previous bills, said he would vote in favor of HB 1114. He said the previous bills made it illegal to drive with more than 5 ng in the system, whether the driver was impaired or not. “This bill is very different,” he said. While the jury can infer that a person with a 5 ng level is impaired, they don’t have to, and the defendant can argue that he/she is highly tolerant and not impaired at 5 ng. “This is a much fairer process… Put the matter before a jury and let them decide whether you were impaired… I believe you have found the right way forward.”