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Marijuana bills loaded with new amendments -- including one to revive THC driving limit

Yesterday, we noted that the marijuana bills needed to implement Amendment 64, which allows adults 21 and over in Colorado to use and possess small amounts of cannabis, would be facing their first tests. But the exams are far from over.

The most high-profile of the bills squeaked out of its first committee by a 6-5 vote -- but it's been larded with amendments, including an attempt to resurrect THC driving limits from the dead after the proposal seemingly snuffed it earlier this week.

Dean Toda, communication director for the House Democrats, walks us through the rapidly moving process.

"There are three marijuana bills," he notes. "One of them" -- Senate Bill 13-283 -- "implements the non-controversial recommendations of the legislative joint select committee impaneled in February."

Dan Pabon, sponsor of HB 13-1317, with Governor John Hickenlooper.
Dan Pabon, sponsor of HB 13-1317, with Governor John Hickenlooper.

A brief aside: In this context, "non-controversial" means those recommendations that received unanimous support from the joint select committee. However, marijuana activist Robert Chase finds the measure to be very controversial, calling it "a direct declaration of war against cannabis-users and a monumental gesture of contempt for the express will of the people of Colorado that cannabis be regulated like alcohol."

The two other proposals? They're House Bills 13-1317 and 13-1318, with the first qualifying as "the majority report from the joint select committee -- a round-up of the issues that didn't receive unanimous support," Toda says.

And 13-1318 "implements the tax structure," he explains. "Because of TABOR, any new taxes have to be referred to the people. So the bill sets up a referendum this November on the creation of an additional sales tax of up to 15 percent on recreational marijuana and an excise tax of up to 15 percent. So that's a total of up to 30 percent in taxes on recreational marijuana, with the first $40 million to go toward a K-12 capital construction fund in the state."

This last dictate may be difficult to accomplish according to a just-released study by CSU's Colorado Futures Center. We've got the full report below (along with the three bills as originally submitted), but the summary spotlights five points -- including the seemingly contradictory assertion that while recreational marijuana will generate more than $130 million in tax revenues, the way the excise tax is structured will prevent it from coming up with that aforementioned $40 million for school construction. The study also suggests that the program will neither pay for itself nor make up for the state's budget shortfall. Here's the breakdown:

1. The adult recreational marijuana market in Colorado will be $605.7 million and taxation of that market will bring an additional $130.1 Million in state tax revenue in fiscal year 2014‐15.

2. The 15% wholesale excise tax created by the amendment will not reach the goal of $40 Million for school construction as stipulated in the ballot language approved by voters.

3. The high water mark for marijuana tax revenue is likely to be in the first few post‐legalization years with revenue flattening or declining thereafter.

4. Marijuana tax revenues may not cover the incremental state expenditures related to

legalization.

5. Marijuana tax revenues will not close Colorado's structural budget gap.

No doubt legislators will look to address these issues -- and there's no shortage of other topics on their plate.

Continue for more about the three Colorado marijuana bills working their way through the state legislature, including the original documents.

"I believe between eighteen and twenty amendments" have been added to 13-1317, Toda calculates. But in his view, by far the most important one is "the DUID amendment."

As we've reported, the proposal, HB 13-1114, sponsored by Representative Rhonda Fields, would have established THC intoxication at five nanograms per milliliter of blood. Versions of the bill from 2011 and 2012 made this standard per se -- meaning that a test registering five nanograms or more would be seen as irrefutable proof of intoxication.

In response, critics argued that because THC tends to linger in users for longer periods of time, it's next to impossible to determine actual impairment via a blood test, at least under presently available technology. So the 2013 edition pushed "permissible inference," which would allow people who register at five nanograms or above to present other evidence in court to prove that they weren't actually impaired, rather than being considered guilty as a result of the test reading.

This compromise seemed to win over many THC driving standard doubters, including a number of medical marijuana industry groups. But the Senate Judiciary Committee voted the bill down by a 4-1 margin anyway. Marijuana attorney Warren Edson believes the defeat was the result of persistent lobbying from activists as well as a new U.S. Supreme Court ruling that rejected warrantless blood draws in alcohol-DUI cases, throwing the ability to take blood from drivers suspected of marijuana impairment into doubt.

Just because a THC amendment has been added doesn't mean it'll definitely become law, though.

"The bill is back in the Finance Committee this morning for consideration of the financial issues -- and after that, the tax bill will be there, too," Toda says. "But any amendments can be stripped out in Finance or on the House floor." Such a turn is unlikely, he concedes, but says, "I imagine the sticking point could well be the Senate, since that's where it was killed in the first place -- assuming it gets to the Senate."

This last statement may seem dubious, since Amendment 64 has been approved, signed and is now part of the Colorado Constitution -- so it must be enacted. Still, that doesn't necessarily mean a state bill or bills have to be passed.

"If the state doesn't come up with a regulatory structure," Toda says, "then it devolves to local control," allowing each locality to come up with rules of its own.

Toda doesn't see that as a realistic prospect, though. "I think everybody agrees that would be a disaster," he says. "So I think the understanding that the local-control alternative is really untenable will drive debate on these bills." He predicts "we'll see a state regulatory structure in plenty of time before January 1, 2014, when all this goes into effect."

But expect plenty of political maneuvering before that happens.

Continue to see the original versions of all three marijuana bills, plus the CSU study about revenue under Amendment 64.

House Bill 13-1317: Recreational Marijuana Regulation

House Biill 13-1318: Recreational Marijuana Taxes

Senate Bill 13-283: Implementation of Amendment 64

Colorado Futures Center: Fiscal Impact of Amendment 64

More from our Marijuana archive: "Marijuana retailers may not have to grow their own -- and that's great, attorney says."