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Marijuana: THC driving bill breezes through first House vote despite e-mail protests, petition

In a Monday interview with Representative Rhonda Fields, co-sponsor of the latest THC driving bill, we noted that the measure, which is similar to ones that failed the past two years, seemed on a steady march to passage this time around -- and that continues to be the case.

The measure passed its first House vote yesterday, albeit with a couple of added amendments, despite an e-mail campaign and a petition drive against it. Details and a look at criticisms of the bill below.

Driving while stoned is illegal at this very moment under Colorado law. But unlike in the case of alcohol, there's currently no number at which a marijuana-using driver is officially considered impaired -- and cannabis activists see that as a good thing, since the science on the subject is infinitely less certain than it is in the case of booze. Nonetheless, the medical marijuana industry boom caused assorted legislators to believe one was needed anyhow.

As we've reported, the legislation from 2011 and 2012 would have established THC intoxication at five nanograms per milliliter of blood and 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.

This year, the five nanogram limit is still part of the legislation, known as HB 1114, but the per se language is gone, replaced by "permissible inference," which would allow people who register at five nanograms or above to present other evidence to prove that they weren't actually impaired, rather than being considered guilty as a result of the test reading.

Marijuana attorney Rob Corry sees this change as only a slight improvement over the previous legislation, making the new proposal 95 percent bad as opposed to 100 percent.

Fields, however, considers the standard to be necessary given what's thought to be increased marijuana use in the area, due to previously existing medical marijuana laws and the signing of Amendment 64, which allows adults 21 and over to use and possess small amounts of cannabis recreationally in Colorado. Moreover, she doesn't believe innocent people will be convicted as a result of the limit.

"The bill looks for active THC in the system, not inactive THC," she told us. "If someone is a chronic user, like medical marijuana patients who use it as part of their treatment, we won't be looking at something that's residue. We'll only be looking at the active THC level."

These arguments, as well as the permissible inference addition, clearly struck a chord at the statehouse yesterday. As reported by the Denver Post, not a single legislator spoke out against the measure, which passed on an unrecorded voice vote after accruing amendments preventing "a person's status as a medical-marijuana patient from being used as evidence of impairment or probable cause for a blood test."

The bill must pass another vote, this one recorded, in order to move to the Senate, where previous versions have stumbled. But this time around, no legislators have stepped up to voice opposition, leaving that effort to marijuana activists.

Continue to see the objections to the THC driving bill.

In 2011 and 2012, the Cannabis Therapy Institute, fronted by Laura Kriho, was instrumental in leading the successful campaigns against THC driving standards -- and this year, CTI is weighing in again. Here's background provided in an action alert to members....

HB 1114 would declare that the presence of 5 nanogram/milliliters or more of THC in the bloodstream of a driver would create a "permissible inference" that the person is guilty of DUI. Under this proposed law, the mere presence of 5 nanograms/mL of THC is enough to prove guilt, regardless of any evidence that the person was not actually impaired.

HB 1114 will require a "forced blood draw", forcing anyone suspected of driving under the influence of THC to submit to a blood draw forced by the state. Currently, alcohol levels can be tested through urine, breath or blood. But under the THC/DUI bill, the nanogram count can only come from a forced blood draw.

...and here's a copy of an e-mail the organization encourages folks to send legislators:

Dear Representatives:

Please vote no on HB1114 and do more research on the bill to set a nanogram limit on cannabis. There is NO evidence showing a link between THC blood concentration and impairment. Other drugs that impair people, like oxycontin, do not have nanogram limits. This bill is unfair to medical marijuana patients, who will almost always be above 5 ng due to constant use, yet suffer no impairment in driving skills.

Medical cannabis patients in Colorado are SICK of being treated like second class citizens! If you want to give them forced blood draws, you will have to show some evidence that there is actually a problem. Please at least include an exemption for medical marijuana patients in this bill.

Sincerely

No telling if CTI's call for a medical marijuana patient exemption led to the amendments stating that patient status can't be used as probable cause or evidence of impairment. But even if it did, these efforts fall well shy of granting the organization's request.

Meanwhile, a group calling itself People Against Nanogram Driving Acts, or PANDA, has posted a petition on Change.org entitled "Colorado Legislature: Vote No on HB 13-1114, the 5 nanogram limit for THC driving." Here's its argument:

Colorado currently has an over 90 percent conviction rate for people charged with driving under the influence of Cannabis. Senator King and Representative Fields feel there needs to be more, but we disagree based on the full scientific evidence.

William Breathes getting his blood drawn.
William Breathes getting his blood drawn.

The science that was used to fuel the argument for this bill is flawed. Dr. Jan Ramaekers, Head of the Department of Neuropsychology and Psychopharmacology at Maastricht University in The Netherlands, conducted the study that is used frequently to argue for the 5 nanogram limit. This study did not use frequent Cannabis users, and therefore can not be used to encompass a population. This study also stated that one hour after Cannabis use "THC generally did not affect task performance" Leaving 5 nanograms a questionable number when in one hour safe driving could be feasible according to the study.

Another study that weighs-in on the issue of frequent Cannabis users and lingering active THC is from 2008, from the Institute of Forensic Toxicology, and the Institute for Legal Medicine at Goethe-University in Frankfurt, Germany:

"It must be cautioned that cannabinoid blood concentrations from heavy users in a late elimination phase may be difficult to distinguish from concentrations measured in occasional users after acute cannabis use."

The National Institute of Drug Abuse's (NIDA) study of heavy users showed that even after 24 hours of secured clinical observation where the participants were not allowed to ingest Cannabis, blood levels came back as high as 7 nanograms. This raises alarms because a cannabis high lasts on average, a couple of hours. If 24 hours later, a person still tested over 5 nanograms. That leaves a person legally intoxicated in the eyes of the court, if the Per Se 5 nanograms law is passed.

The NIDA study shows more weight when compared to the article by Westword in Denver showing that Staff Cannabis writer William Breathes tested 3 times the legal limit when tested 24 hours after Cannabis use.

All of these studies are available via the web to independently review.

In conclusion, We already have an effective protocol in place to punish those who currently drive stoned. The introduction of a Per Se 5 nanogram limit leaves too many people at risk for a false conviction of DUI when studies have shown they could be completely sober at over 5 nanograms. By signing this petition, you tell the Legislature to vote no on a seriously flawed bill.

Some quick notes:

The reference to Senator Steve King is a bit out of date; he sponsored the 2012 bill, but Fields's co-sponsor this time around is Representative Mark Waller. Also, the blood test by Westword medical marijuana critic William Breathes registered nearly triple the proposed limit -- 13.5 nanograms -- when he was sober.

The petition had a goal of 250 signatures; at this writing, it's at 383.

More from our Marijuana archive: "THC blood test: Pot critic William Breathes nearly 3 times over proposed limit when sober."


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