Marijuana: THC driving bill fails for third year -- but will it rise from the dead again?

Earlier this month, the latest version of a THC driving bill that had failed the past two years seemed to be on a steady march to passage despite e-mail protests and petitions.

But no: Yesterday, the Senate Judiciary Committee voted 4-1 to squash the measure again.

Why? One advocate believes the legislation was doomed by the killer combo of persistent critics and a U.S. Supreme Court ruling of a few days ago.

As we've reported, driving while stoned is currently illegal under Colorado law. But unlike in the case of alcohol, there's no number at which a marijuana-using driver is considered to be officially impaired -- and cannabis activists see that as a good thing, since the science on the subject is infinitely less certain than it is in the case of booze. Nonetheless, the medical marijuana industry boom caused assorted legislators to believe one was needed anyhow.

Legislation from 2011 and 2012 would have established THC intoxication at five nanograms per milliliter of blood and made this standard per se -- meaning that a test registering five nanograms or more would be seen as irrefutable proof of intoxication. In response, critics argued that because THC tends to linger in users for longer periods of time, it's next to impossible to determine actual impairment via a blood test, at least under presently available technology.

This year, the five nanogram limit was still part of the legislation, known as HB 1114, but the per se language vanished from the measure, sponsored by Representative Rhonda Fields. Instead, the text referred to "permissible inference," which would allow people who register at five nanograms or above to present other evidence in court to prove that they weren't actually impaired, rather than being considered guilty as a result of the test reading.

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Marijuana attorney Rob Corry saw this change as only a slight improvement over the previous legislation, making the new proposal 95 percent bad as opposed to 100 percent.

Fields, however, considered the standard to be necessary given what's thought to be increased marijuana use in the area due to previously existing medical marijuana laws and the signing of Amendment 64, which allows adults 21 and over to use and possess small amounts of cannabis recreationally in Colorado. Moreover, in an interview earlier this month, she expressed confidence that innocent people wouldn't be convicted as a result of the limit.

"The bill looks for active THC in the system, not inactive THC," she told us. "If someone is a chronic user, like medical marijuana patients who use it as part of their treatment, we won't be looking at something that's residue. We'll only be looking at the active THC level."

These arguments helped the bill win approval in the House, and since a number of major marijuana industry groups had lifted their objections to the bill after the permissible inference addition, most observers expected the legislation to also get over the hump in the Senate, where it had stumbled the past two years. Instead, Senator Steve King, a co-sponsor of the measure, was the only member of the five-person Senate Judiciary Committee to vote in its favor -- a far easier win for opponents than in the previous two victories.

The size of the defeat resulted from "a combination of things," says attorney and marijuana-reform advocate Warren Edson. "I don't want to sound Pollyanna-ish, but there were a dedicated bunch of activists who were pretty persistent even when it looked so certain that the bill was going to get through. They kept plugging away and organizing and having people write their legislators."

The other key, in his view, was "a Supreme Court case that talked about requiring a court order for a blood test."

Continue for more about the THC driving bill's defeat, including the complete U.S. Supreme Court ruling. The case in question, known as Missouri v. McNeely, revolved around one Thomas McNeely, who was pulled over for speeding and then forced to take a blood test for possible alcohol intoxication even after he'd refused to give his consent. In an unsigned opinion, a majority of the Supreme Court justices maintained that the reasons for not waiting for a warrant before administering the test didn't hold water.

"Warrantless intrusions of the body are not to be undertaken lightly," the opinion states.

This ruling complicated the THC driving bill, which called for blood testing to determine whether a driver had exceeded the proposed five nanogram per milliliter limit, and prompted new arguments about how it did and didn't apply. For example, Edson allows, "Senator King said our driving implied-consent laws included blood tests."

As Edson explains, "our implied-consent law in Colorado says that if you refuse to take a breath test, you lose your license for a year. And King was saying similarly that by signing up to be a driver in Colorado, you're agreeing to give officers the ability to give you a roadside blood test without a warrant.

"That argument didn't work well with the other legislators," Edson goes on. "There were discussions about e-warrants -- a warrant the cop could get sent to him on the side of the road. But there was lots of testimony yesterday about how those could take hours to get" in addition to the days, or even longer, before blood-test results came back.

Edson doesn't know which of these factors tipped the balance against the bill, but he's pleased that it's gone down in flames again. In his view, the permissible-inference change that seemed to mute objections from many marijuana-industry groups was "bogus. At least you could argue in some capacity that your client wasn't actually intoxicated, but it's hard to imagine what rare circumstance that would be successful in. It just wasn't appropriate justice -- and on top of that, setting a non-scientific five nanogram standard as Colorado's level of intoxication would have flowed down to everything from family court fights to social-services cases. It was the equivalent of punishing people for having two glasses of wine every night."

In Edson's view, the THC driving bill concept shouldn't be resurrected "until we get technology that actually tells us whether or not an individual is intoxicated -- because why should we be enacting laws that incarcerate and punish people who aren't? That's what they were proposing."

At the same time, however, he expects that such legislation will rise from the dead again next year. "As long as Coloradans keep electing people like Senator King," he says, "this is going to keep rearing its ugly head despite its total lack of a scientific basis."

Here's the U.S. Supreme Court ruling about blood testing and warrants.

U.S. Supreme Court Ruling: Missouri v. McNeely

More from our Marijuana archive: "Marijuana: THC driving bill reaches senate committee next week -- right after 4/20."

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