Driving-While-Stoned Cases Are a Hazy Area of Colorado Law

Melanie Brinegar woke up one morning in July 2014, took her daily dose of medicine and then headed to work. She never got there.

Police pulled her over for an expired license plate, then noticed an empty dispensary bottle in the back of her car. Brinegar, an employee of RiverRock Wellness who suffers from degenerative disc disease, chronic severe pain and muscle spasms, showed officers her marijuana-industry employee badge — but she also told them she was a medical marijuana patient who’d taken her medicine that morning.

The officers called for backup. Soon there were five cops at the scene, and they administered a roadside sobriety test. After the cops told her that she’d failed — Brinegar says she suffered a spasm while standing on one leg — she was arrested and taken to have her blood drawn.

“I tested at almost four times the legal limit,” Brinegar says. “But in no way was I stoned or impaired.”

Colorado is experiencing a growing traffic problem, and it has nothing to do with your daily commute time.

One of the growing branches on the tree of regulatory issues stemming from legalized marijuana involves what constitutes stoned driving. This state’s roads may not be jammed with the red-eyed motorists that some anti-marijuana groups had predicted, but the courts are seeing an increasing number of cases where lab tests and a defendant’s actual impairment don’t match up.

As Colorado legislators prepared for the country’s first legal recreational marijuana sales in January 2014, they tackled numerous regulatory issues. One of the trickiest involved determining the point at which a driver could be considered under the influence of marijuana. After much discussion, lawmakers decided on a limit of 5 nanograms of THC per milliliter of blood, but switched the per se language of the 2013 bill — which would have made any driver guilty who tested above 5 nanograms — to “permissible inference.” And that’s when things started to get hazy in the courthouse.

By incorporating the words “permissible inference,” the law allows people charged with driving under the influence to try to prove they weren’t actually impaired, even if they tested above the 5-nanogram limit. As a result, many drivers who’ve faced DUIs, DUIDs or DWAIs for marijuana impairment have had their charges reduced and, in some cases, dropped completely.

At the same time, such charges were becoming more common, as law enforcement agents started looking for signs of marijuana use. In 2014, the state saw a 12.2 percent increase in citations for driving under the influence that involved marijuana — although most of those citations also involved alcohol, still the major culprit.

“We realized that we may have a new challenge with studying drivers who are under the influence of marijuana,” says Glenn Davis, highway safety manager for the Colorado Department of Transportation. “It’s not about the THC level. It’s about if law enforcement can prove impairment or not.”

With alcohol, there’s a direct correlation between the amount of alcohol in the bloodstream and a driver’s impairment — but the situation isn’t as clear-cut for cases involving THC, especially for police officers in the field. A recent study by the National Center of Biotechnology Information determined that because THC is fat-soluble, it can leave the bloodstream of occasional users within a couple of hours. “This complicates blood tetrahydrocannabinol (THC) interpretation, owing to rapidly decreasing concentrations immediately after inhalation,” the study said.

In layman’s terms, that means that people who rarely smoke pot will have very high THC levels in their blood right after smoking, but an hour or two down the line — when they could still be impaired — their levels will have dropped drastically, possibly under 5 nanograms.

“It’s not about the THC level. It’s about if law enforcement can prove impairment or not.”

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Since legalization, CDOT has been actively involved in training police to better assess a driver’s impairment from marijuana and other drugs, Davis says, and has also hired more drug-recognition experts — professionals trained to differentiate impairment from drugs other than alcohol — to assist with roadside sobriety testing. In fact, drug-recognition experts have become a hot commodity in law enforcement, with Alaska, Oregon and Washington all putting more emphasis on such programs since recreational marijuana was legalized in those states.

CDOT is also working to educate the public with grants from marijuana tax dollars, Davis says, with efforts like its “Drive High Get a DUI” campaign. That program was introduced right before the 2015 High Times Cannabis Cup, where CDOT set up arcade games at booths decorated with race cars and finish lines, but instead of playing a racing game, players watched a short, Super Nintendo-style video on the dangers of driving stoned before playing Pac-Man and other classics. Today CDOT “End Game” stations are located at ten dispensaries around the state. The department has also pushed other awareness efforts, like its “hotboxing car,” a smoke-filled auto parked outside of popular Denver events.

Have CDOT’s programs been successful? A recent department study showed that marijuana-related DUIs fell by just 1.3 percent from 2014 to 2015 — which some marijuana activists considered a major social victory, because they’d worried that enforcement would explode. Still, another CDOT study found that 55 percent of marijuana users drove within two hours of consuming, and only 51 percent of users thought they could get charged with a DUI for driving stoned.

But making that charge stick is another matter.

In another recent study, conducted by the University of Iowa, participants were given one alcoholic mixed drink or ten minutes to vaporize marijuana, with placebos on both sides; they were then sent through a driving simulator that tested their tendency to weave within lanes, the speed of their weaving, and how often they stayed in the lanes while driving straight. Researchers found that the cannabis users only had impairment in one area (weaving within a lane), while drinkers had impairment in all three.

Through data it gathered during the experiment, the study also demonstrated that a THC blood level of 13.1 nanograms was equivalent to the 0.08 blood alcohol limit — 8.1 nanograms higher than the maximum THC limit allowed while driving in Colorado.

That means that habitual marijuana users, such as medical patients, may risk getting charged with a marijuana DUI even when they’re sober. While the legislature was considering the 5-nanogram limit, 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 marijuana for fifteen hours. Breathes tested at 13.5 nanograms — almost triple the now-legal limit. Although the doctor said that he was “in no way incapacitated,” he noted that Breathes’s test results would have made him “incapacitated at a lab level.”

Drug-recognition experts aren’t the only ones who find themselves increasingly in demand in states where recreational marijuana has been legalized. So are attorneys who specialize in impairment cases.

Mary Celeste, who was a Denver County Court judge from 2000 until she retired in 2014, has begun providing expert testimony in marijuana DUI cases; she’s also written for the Drug & Alcohol Testing Agency on current driving-while-stoned laws across the country and helps train drug and highway-safety officials on marijuana toxicology and the challenges of marijuana DUI trials.

“You can’t look at blood and nanograms of THC and conclude if someone is impaired,” Celeste explains. “There’s more things to look at, like individual metabolism rates and THC potency.”

Celeste says it’s becoming harder for prosecutors to prove impairment if the defendant is willing to go to trial. “Obviously, the jurors aren’t buying it,” she notes. “Cops aren’t doing the right, applicable tests to see if drivers are high.”

According to Celeste, states currently approach stoned driving in one of three ways: zero-tolerance, per se set limits, or standard review. In states that take the zero-tolerance route, she says, if a driver has consumed marijuana, he’s guilty of being impaired no matter how much THC is found in his system.

The per se option, which was almost adopted in Colorado, sets a designated limit, and any driver who tests over that limit is considered legally impaired.

Given the status of science on marijuana impairment today, Celeste says, the best option is standard review, which relies on a variety of observational tests done by law enforcement as well as medical tests to determine sobriety.

Celeste testified in a recent case in Boulder County where an eighteen-year-old medical marijuana patient was found not guilty of being under the influence despite testing three times the legal limit. Although the jury let him off because he passed a test administered by a drug-recognition expert and did “fairly well on a roadside test,” Celeste says, she sees a bigger challenge coming to Colorado’s law.

“His attorney challenged the constitutional statute of 5 nanograms, but because the young man was let off, it never went that far,” she says. “But someday, somebody is going to be in the right place at the right time and challenge that constitutional scheme.”

“I think this proves that, regulation-wise, we don't know what the hell we're doing.”

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And on the issue of THC levels, one branch of the federal government actually agrees with Celeste and marijuana activists. The National Highway Safety Administration, which monitors highway and driver safety, doesn’t consider THC levels in blood a legitimate way to measure marijuana’s effects, and states on its website: “It is inadvisable to try and predict effects based on blood THC concentrations alone, and currently impossible to predict specific effects based on THC-COOH concentrations.” (THC-COOH is a component that also lingers in the system but has no psychoactive effect.)

Since many jurors pay attention to additional information regarding impairment rather than reaching verdicts based solely on the 5-nanogram limit, defense attorneys are finding Colorado prosecutors more agreeable to plea deals than they once were. But those deals are still made on a case-by-case basis, says attorney Jay Tiftickjian.

“Prosecutors are scared to take it to trial, because jurors are more receptive to a defendant’s case if it doesn’t involve bad or dangerous driving,” he points out. “If someone gets pulled over driving down the wrong side of the road, that’s another problem, but we don’t typically see those actions in cases that don’t involve alcohol.”

Tiftickjian, who made news in 2014 when he advertised his DUI defense services on rolling papers, says cases of driving while impaired that involve marijuana and no other substance are relatively uncommon, but he still thinks the Colorado Legislature should revisit the 5-nanogram limit. According to CDOT, there were 347 DUID citations in 2015 in which marijuana was the only factor and 665 DUI/DUID citations where marijuana was a contributing factor.

Still, just because it has become harder for prosecutors to prove impairment doesn’t mean that all driving-while-stoned defendants will have an easy day in court.

Melanie Brinegar moved to Colorado specifically for medical marijuana. After she suffered a stroke and almost died from an overdose of pharmaceuticals she’d been prescribed for degenerative disc disease, chronic pain, muscle spasms, depression and general anxiety disorder, she says, she consulted with doctors and wellness specialists and decided to come to Colorado, “a state where cannabis is treated as medicine and not a crime.”

And then she was pulled over in Jefferson County for an expired license plate, arrested and charged with driving under the influence after she told the officers that she’d taken her medicine that morning, as she always did. Two months later, at her first court hearing, it was revealed that tests showed Brinegar’s THC level to be 19 nanograms that day. She decided she needed a lawyer, and consulted the National Organization for the Reform of Marijuana Laws’ listings of marijuana-friendly attorneys. “I was getting quotes of $20,000 to $30,000,” she remembers.

She couldn’t afford that, so Brinegar put her story on the crowdfunding website GoFundMe, which helped her raise around $1,000. She used it to hire defense attorney Colin McCallin, who says that part of the reason he took on Brinegar was because “it was a fascinating case.”

At Brinegar’s request, McCallin turned down a plea bargain. Instead, she went to trial, where McCallin told the jury that when Brinegar was pulled over, she wasn’t weaving or driving erratically; she then performed the roadside sobriety tests in a manner similar to the way people who are totally sober perform.
Last July, a Jefferson County jury acquitted Brinegar.

“It’s kind of funny,” she says. “Someone who wasn’t affiliated with and was even ignored by these weed attorneys beat the state in a pretty high-profile pot case.”

Still, the attorney she did hire remains concerned that the decision in Brinegar’s case may make drivers who consume marijuana feel more invulnerable on the road — where they could still face legal consequences. “Does this mean that there’s been a precedent that has been set, where anyone fitting Melanie’s characteristics could drive under the influence of marijuana?” McCallin says. “The answer is a flat-out no.”

For her part, Brinegar feels that Colorado officials abandoned a legitimate medical marijuana patient. “The state needs to listen to the community,” she says. “These laws are pitting medical patients against the police force. There’s still that divide right now, and we feel unsafe.”

She also thinks that the state needs to make sure DUI/DUID charges involving marijuana are handled the same way from county to county. “I would’ve lost my medical card for two years as part of a plea deal in Jefferson County,” she says. “My friend got three months of probation in Denver.”

If states where marijuana is legal want to tie their driving-while-impaired laws to a number, they need to test a driver sooner, suggests Jeffrey Galinkin, a toxicologist who has worked with the University of Colorado’s toxicology laboratory on marijuana impairment. “When you smoke pot, your THC levels go up very rapidly, but they also get metabolized rapidly, so oftentimes when someone gets back to the station, the levels are too low,” he says. “They’re going to have to develop some degree of roadside testing to get adequate blood levels of marijuana if they want this to work.”

Colorado drivers are allowed to refuse a blood test requested by an officer during a traffic stop, but their license can then be revoked by the state for a year.

So instead, Tiftickjian advises people to exercise their civil rights and just keep their mouths shut while they’re being taken in for a blood test. “People shoot themselves in the foot and tell a police officer that they have smoked or otherwise ingested marijuana within an hour, which is often more damning than the test results themselves,” Tiftickjian says.

According to Galinkin, no current roadside tests can accurately determine if someone is high — but he also acknowledges that roadside blood tests are illegal in Colorado. “I wasn’t for legalization for a variety reasons, but it was mostly because of the lack of regulatory framework,” he says. “I think this proves that, regulation-wise, we don’t know what the hell we’re doing.”

“You can't look at blood and nanograms of THC and conclude if someone is impaired.”

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Coming up with an accurate roadside test for marijuana impairment won’t be easy. Although technology firms are trying to invent an effective THC breathalyzer, they have yet to come close. Lifeloc Technologies, a lab in Wheat Ridge that specializes in alcohol detection and drug screening, recently received a $250,000 grant from the state to develop a breathalyzer that detects only THC.

And many toxicologists believe that trying to come up with a workable marijuana breathalyzer is a waste of time. A Columbia University professor of psychiatry and psychology calls it “a dumb idea.”

Marijuana just doesn’t work like alcohol. Because alcohol dissolves in water, it spreads evenly throughout your bloodstream and breath, so that the amount of alcohol in one part of your body (the saliva in your mouth, for example) is the same as the amount of alcohol in any other part of your body. Because THC dissolves in fat, though, it lingers in the system longer than alcohol, making it harder to connect overall impairment with THC levels in saliva.

Andrea Roth, professor of law at the University of California, Berkeley, recently told NPR that even if a successful marijuana breathalyzer were developed, it wouldn’t immediately be accepted in court. “The 0.08 standard in alcohol is from decades of careful epidemiological research,” she said.

If law enforcement wants to make any progress on dealing with marijuana-related impairment, it needs to stop approaching it like alcohol, says Celeste. “We don’t know that much more about testing for marijuana impairment than we do for other drugs,” she points out. “Other drugs don’t have a set limit. They use standard review and look at all of the circumstances.”

Despite the uncertainties in the legal system, Brinegar isn’t planning to change her medication anytime soon. “I will still use cannabis and drive, but I don’t condone driving impaired,” she says. “I know my limitations and feel that patients know their limits. These types of laws are going to affect individuals with no criminal history, like myself, who could then have a criminal history for the rest of their lives.”
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Thomas Mitchell has written about all things cannabis for Westword since 2014, covering sports, real estate and general news along the way for publications such as the Arizona Republic, Inman and Fox Sports. He's currently the cannabis editor for westword.com.
Contact: Thomas Mitchell