Bill Would Give Cops More Discretion in Marijuana DUI Arrests

A bill introduced in the Colorado Legislature would give law enforcement more leeway when charging drivers with marijuana and drug DUIs, and some cannabis activists aren't happy about it.

State Representative Dylan Roberts says he supports Colorado's cannabis industry, but when he's not working at the Capitol, Roberts is a deputy district attorney in Eagle County, where he says he's prosecuted hundreds of DUIs. His prosecutorial experience and conversations with parents who've lost children to impaired drivers led him to introduce House Bill 1146, a piece of legislation that would allow police to arrest drivers "for the presumption that a driver is under the influence of marijuana."

If passed, the bill would add a new traffic offense to state law: tandem DUI per se. Police could arrest drivers if there is "evidence to believe that a driver had consumed alcohol or drugs, that the driver was substantially incapable of safely operating a vehicle, and that the driver had any measurable amount of a drug in his or her blood or oral fluid."

Colorado's current limit for THC in a driver's blood, 5 nanograms, would be repealed if the legislation passes. According to the bill's language, if a driver is determined to be impaired by a police officer and has a measurable amount of a drug or controlled substance other than alcohol in his blood or oral fluid at the time of driving or within four hours after driving, the driver could be charged with a DUI.

"The 5 nanogram number is scientifically dubious, and not on the same level [of accuracy] as a 0.08 alcohol limit for drivers," Roberts says. "Someone who's a habitual user could be totally fine to drive at or above 5 nanograms, while someone who doesn't use it a lot could be really impaired at 3 nanograms."

Roberts has a point: We've covered how the nanograms of THC in a driver's blood does not necessarily indicate impairment. In 2011, William Breathes, Westword’s then-pot critic and a habitual medical marijuana user, had his blood tested by a doctor after he’d abstained from cannabis for fifteen hours. Breathes tested at 13.5 nanograms — almost triple the now-legal limit. Although the doctor said that Breathes was “in no way incapacitated,” he noted that his test results would have made him “incapacitated at a lab level.”

Roberts believes that giving police officers more discretion would actually help cannabis users. "For people who use recreational and medical marijuana, this will be a law that is more fair," he says. "First of all, the officer can't even arrest them or ask for a blood test unless they have probable cause that the driver is impaired. Then, the prosecution would have to prove that impairment with behavior and roadside testing, instead of numbers that don't mean the same from person to person."

State Representative Dylan Roberts - COLORADO GENERAL ASSEMBLY
State Representative Dylan Roberts
Colorado General Assembly
Not everyone is so trusting of law enforcement, however. Larissa Bolivar, a cannabis business consultant and executive director of the Cannabis Consumer Coalition, thinks that the new bill would put more of an onus on the accused, who might not be able to afford proper drug testing and legal representation to prove that they were not impaired.

"The biggest issue I see so far in this bill is a defendant being able to provide affirmative defense to show that he or she had not consumed drugs or alcohol between the time they were stopped and the blood or oral sample was taken," Bolivar explains. "This will negatively impact people of color and poor people, as they may not be able to afford the attorney fees associated with defending such a case."

Bolivar also worries about the bill opening the door to abusive tactics by police, giving officers discretion over forms of perceived impairment other than cannabis consumption. "The bill also gives too much power to law enforcement over determining intoxication," she says. "There could be a variety of substances impacting driving, including over-the-counter allergy medications."

One cannabis industry representative calls the proposal "the 'Put soccer moms and tourists in jail' bill of 2019," and wonders how the state will pay for drug-impairment training for officers and increased blood tests associated with the bill.

"This means that Mom and Dad, who happened to take a couple hits off a pre-roll at a party a few nights back, could be picking up their kid at school a few days later, accidentally run a stop sign or make an unlawful turn, get pulled over, wind up giving blood, and then get charged with a DUI because THC was still in their system from a party a few nights ago," the industry representative says.

Roberts says he talked with fellow lawmakers and cannabis-industry stakeholders before introducing the bill on January 29, and received a "good and interested response" from both sides. The state rep says he's open to feedback and possible amendments, and will hold a public meeting on Friday, February 1, from 1:30 to 2:30 p.m. in room 107 of the State Capitol.

"I want to make any amendments that will get different stakeholders on board," he says. "Obviously, I don't want to change the intent of the bill, which is to make our roads safer, but I'm willing to hear everyone."

The bill is likely to go in front of the House Judiciary Committee in mid- to late-February, he notes.

Since recreational cannabis sales began in 2014, Colorado has been the subject of national scrutiny to determine pot legalization's effects on numbers of impaired drivers. Because five years ago the state didn't have baseline data about stoned driving, such as DUI cases that only involved cannabis and active THC (evidence of recent pot consumption as opposed to THC that's been in your system for days or weeks), statistics are still being gathered.

According to the Colorado Department of Transportation, deaths involving at least one driver over the legal limit for pot impairment went down from 2016 to 2017, but fatalities are up during the same period for those testing positive for any amount of THC.