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THC driving bill may be hard to kill despite iffy science, senator says

Last April, a bill to set THC driving standards was put on hold by a senate committee -- and a DUID-marijuana working group charged with reconsidering the issue deadlocked over the question of per se standards. But now, Representative Steve King has spoken publicly about resurrecting the measure, and Senator Morgan Carroll, who opposes the concept, feels it may gain traction despite questions about the science on which it turns.

Representative Claire Levy sponsored last year's bill, which established THC intoxication at 5 nanograms per milliliter of blood. Levy later decided this standard was too strict, and suggested that an 8 nanogram limit be substituted, but she didn't win this argument. The 5 nanogram version subsequently passed the Colorado House.

William Breathes getting his blood test.
William Breathes getting his blood test.

But following a report that Westword medical marijuana critic William Breathes's blood had tested at nearly three times the legal amount while sober, the aforementioned senate judiciary committee shelved the proposal pending future study, and an attempt to resurrect it again in May failed.

Months later, a divided DUID-marijuana working group failed to come to a consensus, with half the members in favor of a per se limit and the other half arguing that unlike alcohol, THC tends to linger in users for longer periods of time, making it next to impossible to determine actual impairment via a blood test, at least under currently available technology.

That apparently hasn't dissuaded King.

After multiple interview requests from Westword over the course of several days, he eventually sent an e-mail that read, "No thank you on your offer for us to speak on possible proposed legislation," explaining that "time is short."

Yet somehow, King found a few minutes to chat with the Denver Post about the subject, announcing that "quite frankly, I think it's time we cleared the smoke out of this. If you drive high, it's against the law, it puts people's lives at risk, and you should deal with the consequences of making that bad decision." He added that he has not decided whether to promote a 5 nanogram limit or lobby for zero tolerance -- meaning that any trace of THC would demonstrate impairment under state law.

This makes no sense to Carroll, who spoke out against Levy's measure last year. In her view, either a per se or zero tolerance approach will basically make it illegal for any MMJ patient to drive in the State of Colorado even if he or she hasn't recently medicated. But she also feels that defeating such a bill "is going to continue to be an uphill battle" due in part to possible political maneuvering on the part of proponents.

Page down to read more of Carroll's thoughts on the bill and its future.   According to Carroll, she hasn't seen any new research since last year to show that a per se limit when it comes to THC can be as predictable and effective as the one measuring alcohol, and if so, what it might be. "I've seen ranges from 5 to 20 nanograms, which is a profound range of variation," she notes. "And it's already against the law to drive intoxicated. So if you're going to add a pot per se, it's because you think you have enough scientific data to establish a point where people become impaired.

Morgan Carroll.
Morgan Carroll.

"If that day ever comes for marijuana, we can realistically have this discussion. But as we heard in testimony before, and from what we've seen, there's no standardization in actual content of marijuana. People metabolize all over the board and medical marijuana patients with chronic pain or illness probably always have some THC in their system. And I don't think they should be criminalized for using medical marijuana."

Moreover, she continues, "we know that Oxycontin, Percocet, Valium and all kinds of prescription drugs can also be impairing. So I'm a little uncomfortable about picking and choosing pet causes and issues in an area like this. If we're going to take the law-enforcement perspective on this, I think it's only fair to take a scientific approach to anything that can impair you, not only marijuana."

If a marijuana per se or zero tolerance law passes, would patients be forced to choose between driving and using medical marijuana as recommended by a physician? "They'd be taking an enormous risk to come to any other conclusion," Carroll believes. "Not all people are willing to risk a criminal record to take their medicine. So you're putting people in an untenable spot. Of course, people shouldn't get behind the wheel when they're impaired. But when they're not impaired, they could still have THC in their blood -- and there's no gadget like a breathalyzer that would allow them to determine if they were impaired by using medical marijuana. That doesn't exist. So they're left with the choice of gambling even if they don't feel impaired."

Nonetheless, Carroll acknowledges that the idea of a THC-driving bill has a great deal of support, due in part to the difficulty of explaining the distinction between measuring alcohol and marijuana impairment. "People think, 'Oh, we don't want impaired people driving, and unless we pass this bill, there's nothing to stop them' -- which is factually false, because it's against the law right now. If you're observed driving in a way that shows you're impaired, you can be prosecuted. This is just a shortcut, where the prosecution doesn't have to offer any proof of impairment. The per se limit means they can pick a magic number -- and in this case, it would be magical, not scientific -- and then they don't have to provide any evidence of actual impairment."

Even so, Carroll believes that "the momentum is going to be with passage of this bill. It was quite an extraordinary effort to stop it last time -- and this time, the bill may get assigned differently."

What's that mean? According to Carroll, supporters may direct the bill to a committee on which she or other bill opponents sit, making it more difficult for them to present arguments against it. And if the measure gets out of committee, she suspects there's enough support among the senate as a whole for it to be approved.

"It's easy to mock," she concedes. "People assume this is really about bored frat boys misusing the state's medical marijuana laws. And as long as that perception is out there, it's going to be difficult to defeat."

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More from our Marijuana archive: "THC driving limit: Task Force member says no recommendation wouldn't stop new bill."


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