Yesterday afternoon, the Colorado Senate approved Senator Steve King's THC driving bill by an 18-17 vote thanks to the support of Senator Nancy Spence, who'd recommended additional study for a similar measure that fell short of passage last year. Now, the proposal is headed to the Colorado House, and NORML, the National Organization for the Reform of Marijuana Laws, is hoping to stop its progress via an action alert on view below. Here's NORML executive director Allen St. Pierre's take.
"The bill is trying to criminalize such a large portion of the drivers in Colorado who may have active metabolites in their system," St. Pierre says. "And even though we're very deferential toward public safety at NORML, this change in law will likely not enhance public safety."
As we've reported, the bill, shorthanded as SB 117, would establish a per se THC impairment limit of 5 nanograms per milliliter of blood, with "per se" establishing the sort of bright line that translates to instant guilt in the eyes of the law. Opponents raise questions about the usefulness of the standard, in part because of the proclivity of THC to linger in the system of users. For example, medical marijuana reviewer William Breathes registered at nearly triple that level when sober during a test last year.
Such evidence led to the original bill being shelved in lieu of further analysis, only to be revived by Senator Steve King. His version originally established an impairment standard regarding Schedule I and II drugs, but that section was stripped out last week due to their high cost of implementation. And while the arguments for and against the measure didn't change much from one year to the next, the results did, as a result of Spence's switch.
St. Pierre isn't overtly critical of the manner in which the issue has been debated in these parts over the past year-plus. "Both reformers and government officials have been part of the process," he allows. "And having a 5 nanogram limit is better than a per se zero standard, which some states have."
Moreover, he understands the appeal of the legislation. "In some ways, it's an easy political compromise using a lexicon we're familiar with, which is comparing it to alcohol. Mason and company" -- a reference to activist Mason Tvert and supporters of Amendment 64, the Regulate Marijuana Like Alcohol Act -- "are constantly using the juxtaposition of wanting to treat marijuana like alcohol. That's the narrative.."
However, he continues, "we at NORML can make a very cogent argument that 5 nanograms in your blood does not measure impairment. Researchers at the National Institute on Drug Abuse have spent entire careers trying to set a standard, but cannabis is such a gray area regarding how it reacts in the body and how people individually react to it, that they've punted decade after decade."
St. Pierre doesn't pretend to know the right number at this point. But he believes 5 nanograms is the wrong one -- which explains why NORML is urging its members across the country to contact members of the Colorado House and express their opposition to SB 117.
Update: Just heard from Amendment 64 proponent Mason Tvert, who was concerned that Allen St. Pierre's reference to him and the Regulate Marijuana Like Alcohol Act, seen above, implied that he and supporters of the measure back SB 117. That is not the case, he stresses, and elaborates in the following statement:
"It should be noted that the organization I run, SAFER, sent out alerts encouraging supporters to contact their representatives to ask them to oppose legislation that sets a per se limit of 5ng. Like a majority of senators last year and nearly a majority this year, we have significant concerns about legislation that could result in unimpaired drivers being charged with DUID.
As for the Campaign to Regulate Marijuana Like Alcohol, while the language of our initiative left the decision-making in this field to our state's representatives, we are concerned about any per se standard that does not provide defendants the opportunity to demonstrate or prove that they were not actually impaired while driving."
Page down to read the action alert and a suggested message to legislators. Editor's note, May 9: The original version of this post stated that the NORML action alert seen here was nationwide. We're now told by NORML's Paul Armentano that the alert was in fact targeted to Colorado. We've removed the incorrect information and regret the error.
Stop Colorado's Unscientific and Unnecessary Drugged Driving Law
Republican Senator Steve King is sponsoring legislation, SB 117, that seeks to criminalize anyone who operates a motor vehicle with trace amounts of THC in their blood, regardless of whether their psychomotor performance is demonstrably impaired.
On Tuesday, May 1, Senate lawmakers narrowly approved the measure by a vote of 18 to 17. Yes, we were that close. In fact, lawmakers initially rejected SB 117 on a voice vote, only to pass the measure later upon reconsideration.
Though Tuesday's Senate vote is no doubt discouraging, it is also indicative that there presently exists a lack of consensus among lawmakers in favor of this draconian provision. With only days left in the 2012 legislative session, it is vital that House Representatives hear a loud and consistent message from constituents to reject this controversial and divisive measure.
Please take time today to call or write your member of the House and urge them to vote 'no' on SB 117. At a minimum, implore to them that there is insufficient time left this session for the House adequately debate such controversial legislation.
Senate Bill 117 amends state law to redefine "DUI per se"; to include "driving when the driver's blood contains more than 5 nanograms or more of delta-9-THC per milliliter in whole blood." It inappropriately lowers the state's existing burden of proof necessary to gain a criminal conviction. It further states, "[I]f at the time of the commission of the alleged offense, or within two hours thereafter, ... the defendant's blood contains over five or more nanograms of delta-9-THC per milliliter in whole blood, such fact gives rise to the permissible inference that the defendant was under the influence of drugs."
Last year, lawmakers rejected a similar proposal. This summer, a special legislative work group also failed to endorse such a per se standard.
Senate Bill 117 is inappropriate because THC levels in blood are often inconsistent predictors of behavioral impairment, particularly in daily users (such as many of those in Colorado's patient community) who may possess residual levels of THC in their blood for periods of time far exceeding any reasonable period of psychomotor impairment.
Further, SB 117 is also unnecessary because law enforcement in Colorado already possesses the legal authority to authorize the collection of THC/blood specimens from suspected DUI drivers and prosecutors routinely use these results as evidence in DUI prosecutions. This evidence, along with additional evidence gathered at the scene (such as the suspect's performance on field sobriety tests and the arresting officer's observations at the scene) provides the state with ample tools to effectively prosecute and convict drivers who engage in DUI marijuana behavior. In fact, over the past four years, Colorado prosecutors have over a 90 percent conviction rate when prosecuting DUI offenses. There is no justifiable need to lower the state's burden of proof in these cases.
For these reasons, NORML opposes the imposition of per se laws for drivers who test positive for THC in the blood without additional demonstrable evidence of psychomotor impairment. Please contact your House member and urge him or her to reject SB 117. You can do so by entering your zip code below.
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Text of editable action alert message:
SB 117 Is a Solution in Search of a Problem
I urge you to reject Senate Bill 117, which seeks to criminalize anyone who operates a motor vehicle with trace amounts of THC in their blood, regardless of whether their psychomotor performance is demonstrably impaired.
Senate Bill 117 amends state law to redefine "DUI per se" to include "driving when the driver's blood contains more than 5 nanograms or more of delta-9-THC per milliliter in whole blood." Last year, lawmakers rejected a similar proposal. This summer, a special legislative work group also failed to endorse such a per se standard.
Senate Bill 117 is inappropriate because THC levels in blood are often inconsistent predictors of behavioral impairment. Most notably, in a series of studies conducted by the US Department of Transportation in the 1990s, investigators attempted to assess whether it was possible to predict driving impairment by the presence of THC concentrations in blood. They reported that THC blood levels were not a valid or consistent predictor of psychomotor impairment. Authors concluded: "One of the program's objectives was to determine whether it is possible to predict driving impairment by plasma concentrations of THC and/or its metabolite, THC-COOH, in single samples. The answer is very clear: it is not." (United States Department of Transportation. Marijuana and Actual Driving Performance: Final Report. 1993).
Further, daily users of cannabis (such as many of those in Colorado's patient community) may possess residual levels of THC in their blood for periods of time far exceeding any reasonable period of psychomotor impairment. For example, in a recent US government study published in the scientific journal Addiction (Karschner et al. 2009. Do Delta- 9-tetrahydrocannabinol concentrations indicate recent use in chronic cannabis users?), eight out of 23 subjects continued to test positive for the presence of THC in their blood after seven days of monitored abstinence.
SB 117 is unnecessary because law enforcement in Colorado already possesses the legal authority to authorize the collection of THC/blood specimens from suspected DUI drivers and prosecutors routinely use these results as evidence in DUI prosecutions. This evidence, along with additional evidence gathered at the scene (such as the suspect's performance on field sobriety tests and the arresting officer's observations at the scene) provides the state with ample tools to effectively prosecute and convict drivers who engage in DUI marijuana behavior. In fact, over the past four years, Colorado prosecutors have over a 90 percent conviction rate when prosecuting DUI offenses. There is no justifiable need to lower the state's burden of proof in these cases.
Finally, SB 117 would adversely impact state taxpayers. A legislative analysis of the measure estimates that will cost state taxpayers some $1.5 million to implement. That's an additional tax burden on working citizens for a measure that is unnecessary and will do nothing to enhance traffic safety.
Rather than pursuing this costly, poorly drafted legislation, lawmakers who are truly concerned about the threat of impaired motorists ought to consider other proven alternatives. These include:
• Better training for and greater use of Drug Recognition Experts (DREs) to identify drivers under the influence of marijuana or other illicit or licit substances;
• The development of alternate Field Sobriety Tests that are more sensitive and specifically designed to identify motorists impaired by marijuana or other controlled substances;
• Funding for statewide public education efforts targeting younger drivers age 18 to 25 -- as this group is most likely use marijuana or other illicit substances and to have reported driving a motor vehicle shortly after consuming such substances;
• Funding for the development of rapid-response point of collection devices, such as an oral swab test, that will allow an officer to conclude while on the side of the road whether a motorist has recently ingested a controlled substance.
Moving forward with these common sense efforts will ultimately make Colorado's roads and highways safer. Passage of Senate Bill 117 will not.
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More from our Marijuana archive: "Medical marijuana v. recreational use: NORML controversy, Colorado connection."