Yesterday, HB 1261, Representative Claire Levy's bill to set THC driving limits, survived its first legislative test, passing out of committee by a 6-2 vote. But medical marijuana attorney Rob Corry continues to argue against the bill -- see his letter to legislators below. In his view, the measure won't make roads safer and could spur lawsuits.
"There will be extensive litigation," he allows. "First and foremost, there'll be a drastic increase in the amount of people criminally prosecuted. Many of those people will hire lawyers, and some of them may hire me -- and if they do, I'll certainly assert the unconstitutionality of this new bill as a defense in the criminal case. And I will also evaluate whether to bring an action under the federal Americans with Disabilities Act."
Such an approach would certainly be unusual from a legal standpoint. After all, the ADA is a federal law -- and marijuana continues to be illegal in the eyes of the feds whether or not it's being used for medical purposes. But, in Corry's words, the ADA "prohibits government from discriminating against someone because of their disability -- which is exactly what this does. And passing a one-size-fits-all five nanogram standard is not an accommodation."
Numerous MMJ advocates suggest that cannabis use doesn't impair driving ability -- an assertion that may seem strained to folks who've either experienced impairment when using marijuana recreationally or have seen others in that condition. But Corry believes that the situation is different for patients.
"There may be a case where an occasional recreational user who might smoke a joint on a Friday night once a month could be impaired immediately after consuming a significant quantity," he concedes. "But the same analysis does not apply to a medical user who is merely following a doctor's recommendation. That person is in the position of being able to compensate for any effects the medicine can have. Many patients tell me that, for them, medical marijuana doesn't have any psychoactive effects that would cause them to feel high. They tell me, 'All it does is eliminate the pain,' and they don't see that as being high. They see it as eliminating a debilitating condition. So patients have an entirely different perspective than the occasional user.
"Also, science is literally all over the place on this issue. I'm not a scientist by trade, although I have a background in it, and science can't agree on what the number should be. I think the legislature chose the number 'five' somewhat arbitrarily. I'm not sure why it wasn't four, or why it wasn't six. And theoretically, the government is not allowed to act in an arbitrary fashion."
Besides, Corry notes, "as far as the government's concerned, it's already illegal to operate a vehicle when impaired by marijuana. So the view that it's perfectly legal to drive stoned is simply false. It's not legal to drive impaired on Oxycontin, it's not legal to drive impaired on any medication. But just taking medication doesn't mean a patient is automatically impaired. And marijuana is a medication, which is very different from alcohol. Alcohol isn't a medicine, and the right to use marijuana medically is in the Colorado constitution."
That said, Corry isn't dead-set against any bill dealing with THC impairment. Indeed, he could live with the five nanogram standard as long as the bill would establish "an affirmative defense -- namely, that they're a medical marijuana patient, they have a doctor's recommendation, and they understand its effects and compensated for them, especially if there's no evidence of bad driving.
"The majority of DUI incidents don't involve an accident. Quite frequently, people are pulled over for something like speeding, which isn't evidence of impairment, and a police officer smells marijuana. At that point, people will immediately assert their status as a medical marijuana patient, thinking that's a positive thing -- but it often brings hot coal down on their head, because law enforcement will then charge them with a DUI. That's already happening, and this bill would open that up and make the situation even worse."
Corry adds that "Representative Levy is one of the more thoughtful legislators over there, and I think her intentions are good. So it's difficult for me to come out so strongly against the bill. But the effect of this bill is going to be hugely negative for patients. That's why I'm coming out against it."
Page down to read Corry's letter to legislators opposing HB 1261, as well as the bill itself:
Chairman and Members of House Judiciary Committee Colorado State Assembly Denver, CO 80202
Re: House Bill 11-1261; Marijuana DUI
Dear Chairman and Members:
I am an attorney specializing in Marijuana who represents Medical Marijuana patients. My clients and I have serious concerns related to House Bill 11-1261, which would establish an automatic, "per se" level of impairment for drivers with 5 nanograms of Tetrahydrocannabinols (THC) in blood.
Let me start with the positive: despite claims by others, the bill drafters wisely rejected the use of urine tests to determine impairment, because urine tests are worthless for this purpose.
However, blood is not much better. HB 1261's "one size fits all" 5 nanogram level is still problematic. Current law already makes it a criminal offense to operate a vehicle while impaired by any drug or medicine, including marijuana. C.R.S. § 42-4-1401. Under current law, every year, hundreds of Coloradans are criminally charged and convicted for driving under the influence of marijuana or other prescription drugs.
Marijuana is a medicine for over 100,000 Coloradans. Under current law and under this bill, no other medicine carries with it a "per se" level that automatically means impairment. Drivers using psychoactive opiates such as Oxycontin, Percocet, Methadone, Fentanyl, etc. are able to legally use their doctor-ordered medications while driving if they can compensate for any effects of the medicine such that they are not impaired. Many medical marijuana patients, long-term chronic users, can similarly compensate for any effects of marijuana. In fact, prescription Marinol, synthetic THC, carries with it a warning on the prescription bottle that patients should gain a familiarity with the drug's effects before operating a vehicle, but notably does not instruct patients to avoid operating a motor vehicle altogether.
Some patients suffering from severe pain, seizures, nausea, and other debilitating medical conditions are far more dangerous on the road if such severe medical conditions are unaddressed or un-medicated. Requiring such patients to have a sharp government needle stuck into their arm, as a condition for driving, raises concerns about intrusive government.
In HB 11-1261, marijuana is singled out from other even more impairing medicines for special mistreatment. However, marijuana is the only medicine whose use is explicitly protected by the Colorado Constitution, Article XVIII § 14. This bill would raise constitutional concerns if it became law.
Singling out marijuana from all other medicines for discriminatory treatment may also violate federal law, the Americans With Disabilities Act, 42 U.S. Code § 12101 et seq., if accommodation is not made in the law for patients who use marijuana to address their disabilities.
The bill should be voted down. If not, the bill should be improved with amendments removing the 5 nanogram limit and treating medical marijuana like any other medicine, removing the "per se" aspect for medical marijuana patients, and/or allowing medical marijuana patients an affirmative defense to demonstrate they were not impaired.
I hope that all patients can feel safe to drive, and will feel that they will not be "medically profiled" by law enforcement every time they get behind the wheel. I would be happy to answer any of your questions. Thank you very much for your time and consideration.
Robert J. Corry, Jr.
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