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THC driving limits bill is back, may have votes to pass despite William Breathes's blood test

Morgan Carroll.
Morgan Carroll.

Update: HB 1261, a bill to set THC driving standards, was put on hold by the Senate judiciary committee last month -- and committee chairwoman Senate Morgan Carroll says Westword medical marijuana critic William Breathes's blood test was a factor in the decision.

Now, though, the bill's again moving toward passage, despite Carroll's view that approving it would be "a mistake."

As we noted earlier, the bill, proposed by Representative Claire Levy, establishes a driving-under-the-influence level of 5 nanograms per milliliter of blood. During House debate, Levy tried to change the number to 8 nanograms, but her amendment didn't fly. Breathes's reading while sober was approximately 13.5 nanograms.

After the House passed the 5 nanogram version, the bill went to the Senate judiciary committee, which put a hold on the bill for study. But on Friday, Carroll says, the appropriations committee struck the study language, causing the measure to revert to its original form. Now, the likeliest way to stop the bill would be for the full Senate to reject the appropriations committee report. But all Republicans support HB 1261, and they were joined on Friday by a handful of Democrats, including senators Mary Hodge and Rollie Heath, under heavy lobbying from law-enforcement agencies.

As such, "we've probably lost enough Democrats that I don't see a way to either keep it a study or kill the bill," Carroll believes. That would make Governor John Hickenlooper the last line of defense, and while Carroll hasn't heard if his office has taken a formal position on HB 1261, "to the extent that the Department of Public Safety and law enforcement has been so uniformly behind it, he probably wouldn't veto it," in her opinion.

That's unfortunate from Carroll's perspective. She says Breathes's blood test results "were persuasive for the folks in judiciary. And we all went through and read the research, which ranged from two nanograms to twenty nanograms -- and that's a pretty broad range. That tells me this isn't ready for prime time.

"Frankly, we don't have a clue about what the right level is," she continues. "And even though we read all the research we could get our hands on, the rest of the body is probably not realistically going to have the benefit of that background when they vote. The law-enforcement community is running around counting votes on this, and a lot of people will give a lot of deference to them on a very superficial level. They'll think, we have a limit on alcohol, so we should have one on THC, and not struggle like we did to find science that isn't there to support it."

Many medical marijuana patients are worried that if a 5 nanogram limit passes, they'll never be able to legally drive in the State of Colorado again -- and Carroll concedes that "there is that risk, since this is effectively a forceable blood draw or you lose your license. With alcohol, the metabolism issues are so well understood that you can give people a rule of thumb -- you shouldn't have more than one drink every x-hour if you're male or female. And the members of judiciary kept asking people if there's a way a medical marijuana patient can tell how long after what kind of dosing they'll be okay to drive, and no one can answer that.

"That means patients can't pace themselves. In a lot of bars, they let you do a sample breathalyzer, and if you blow a .08, you'll know, 'When I feel like this, I shouldn't drive.' But patients have no way of knowing what their levels of nanograms are to try and calibrate where they're at. And that means there's a real risk of medical marijuana patients who are not actively high who are going to be presumptively guilty of a crime. That's the worry I have -- and it's probably not going to win the day."

At this point, action by the full Senate is likely to begin either today or tomorrow. Carroll notes that "it's hard to sit by and watch what I think is a mistake get through and get passed, but that happens sometimes. I hope I'm wrong, and maybe some other people will change their votes. But it's not looking good."

Original item, 7 a.m. May 9: Last month, HB 1261, a bill to set THC driving standards, was put on hold shortly after Westword medical marijuana critic William Breathes's blood test showed him nearly triple the proposed limit while sober. But it looks as if the measure is rising again -- and the Cannabis Therapy Institute fears it may be unstoppable.

The bill, proposed by Representative Claire Levy, establishes a driving-under-the-influence level of 5 nanograms per milliliter of blood. During debate in the house, Levy tried to change the number to 8 nanograms, but her amendment didn't fly. Breathes's reading while sober was approximately 13.5 nanograms.

The passage of the bill by the House means it only needs Senate approval -- and, of course, the signature of Governor John Hickenlooper. And while some observers interpreted the Senate's decision to delay a vote on the matter as victory, the Cannabis Therapy Institute's Laura Kriho warned against complacency. In an April 19 post linked above, she told us that HB 1261 "is not dead. It has to go to the appropriations committee, and the original language could come back at any time -- all the way up until May 11."

Now, a CTI release declares that the bill "has been revived." How so? On Friday, the release continues, "the Senate Appropriations Committee removed the study language from the bill, reverting to the version of HB1261 that passed the House on March 23... The bill now needs only to be voted on by the full Senate twice... to pass."

What are its odds? CTI quotes an e-mail from Senator Morgan Carroll, the chairwoman of the Senate Judiciary Committee, who wrote, "They pulled out the amendment we put on in judiciary. It is back to the original bill, and it appears we do not have the votes [in the Senate] to kill it."

We've submitted interview requests to Carroll. When and if she responds, we'll update this post. In the meantime, here's the entire Cannabis Therapy Institute release:

THC/DUI Bill Revived

Colorado House Bill 11-1261, the THC/DUI bill, has been revived, with only 3 days left in Colorado's 2011 Legislative session. This is sad news for medical marijuana patients, who will become targets for increased THC/DUI arrests and prosecution and suspension of their drivers licenses.

HB1261 had been amended by the Senate Judiciary Committee on April 18 to create a task force to study whether there was scientific evidence that THC causes impairment. However, on Friday (5/6) the Senate Appropriations Committee removed the study language from the bill, reverting to the version of HB1261 that passed the House on March 23.

Click here for the bill.

The bill now needs only to be voted on by the full Senate twice (Second and Third Readings) to pass. The 2011 Colorado Legislative Session ends at midnight on May 11. All bills will be decided one way or another by this time.

Senator Morgan Carroll (D-Aurora), the chair of the Senate Judiciary Committee who sponsored the study language, confirmed to CTI by email that the original bill was back in play. Senator Morgan Carroll wrote: "It is true. They pulled out the amendment we put on in judiciary, it is back to the original bill, and it appears we do not have the votes (in the Senate) to kill it."

HB1261 seeks to ban patients from driving privileges by setting a limit on THC in the blood that most patients will always exceed. Any driver with an amount of THC over 5 nanograms/milliliter in their blood will be considered impaired and guilty of DUI per se and subject to loss of their driver's license and other criminal penalties. This will greatly impact patients, because many of them will test over that limit due to their chronic use, but not be impaired.

For example, Westword reporter and marijuana patient William Breathes had his blood drawn to prove that a patient would be above the 5ng/mL limit even when sober. His THC blood content, after 16 hours of fasting, was 13.5 nanograms, well over the 5ng limit. Yet he was completely unimpaired.

*Business Owners and Caregivers Unite to Defeat HB1261* The Cannabis Therapy Institute is calling for a phone and email campaign to the General Assembly, lead by every MMC applicant and caregiver in the state, on behalf of their patients. Since this bill is a direct attack on the MMC customer base, CTI hopes that MMC business owners who have stayed out of cannabis politics for the whole year, will use the last three days of the session to mount a last-ditch campaign to defeat this bill. Please copy info@cannabistherapyinstitue.com on any e-mails you or your patients send, so that you can get full credit for participating in the campaign to kill HB1261. Patients support businesses that support patients!

E-mail the General Assembly and ask the to VOTE NO on HB1261 or amend it to the Senate Judiciary Committee version, which asked for a study to prove there was scientific evidence that THC causes impairment.

CONTACT GENERAL ASSEMBLY Click here for spreadsheets and email lists

Make sure you copy info@cannabistherapyinstitute.com on any e-mail correspondence you send or receive.

TALKING POINTS • HB1261 is unfair to medical marijuana patients and will force patients back on prescription medications that do not have nanogram levels and are not routinely tested for by the police. • HB1261 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. • The sponsor of HB1261, Rep. Claire Levy (D-Boulder) admits that she cannot point to one single accident caused solely by marijuana and that the research on setting a nanogram limit as evidence of impairment is "all over the place."

WATCH LIVE ONLINE HB1261 is scheduled for a debate on the floor of the Senate on May 10, starting sometime after 9am. You can watch live video: http://www.coloradochannel.net/

More from our Marijuana archive: "THC driving limits could cause more innocent people to spend months in jail, attorney says."


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