For the third year in a row, state lawmakers will be pushing for an official marijuana DUI limit, to curb what they say is an epidemic of stoned drivers that will only get worse with the passage of Amendment 64. Senator Steve King, a Western Slope Republican, is again sponsoring the legislation, which is currently in the interim Transportation Legislation Review committee. In many ways, the current proposal is the same as bills that have been introduced -- and voted down -- twice before.
The intoxication standard would be set at 5 nanograms or more of THC for every milliliter of blood, and involuntary blood draws would be allowed. Anyone found over that limit while driving or within two hours of driving would face a misdemeanor charge.
What is different this time is that the measure addresses the entire state DUI code instead of merely amending it with a marijuana portion. Among the major changes in the currently available 22-page draft is making blood alcohol and blood THC levels a "permissible inference" defense.
Basically, that means a judge and/or jury is permitted to conclude that a person was driving under the influence based solely on blood or breathalyzer results -- but it also means a judge/jury is allowed to not make that assumption. For example, if the blood results showed someone was at 6 nanograms of THC but other evidence indicated he was not impaired, the jury could find in favor of the defendant.
The proposal also removes language that would prohibit any driver considered a "habitual user of any controlled substance" from driving any time -- language that could have been interpreted to make anybody who uses now state-legal marijuana at any point in time an illegal driver, regardless of his or her blood-THC limits.
The bill doesn't make any exceptions for medical marijuana patients who have built up tolerances over time and are likely to fail a 5 nanogram limit even when deemed sober. However, it does discuss ways that the 5 nanogram limit could be thrown out in court. In addition, the language says that if you can prove that you consumed cannabis between the time you stopped driving and the time you took the blood test, this fact can be used as an affirmative defense.
The bill also allows for DUI defendants to "offer direct and circumstantial evidence that there is a disparity between what any tests show and other facts." This evidence can include expert and non-expert testimony.
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Aurora Representative Rhonda Fields says she will be co-sponsoring the legislation when the Colorado General Assembly convenes in January. "It's about public safety," she says. "I want our streets to be safe. With the passing of Amendment 64, we need to have some standards in place so people don't think they can smoke and get behind a wheel and drive. We have a standard for alcohol; we need to have a standard for THC limits."