Marijuana: Would THC driving bill help people busted for alcohol DUIs beat the rap?

At this writing, HB 13-1114, a bill to set THC driving-impairment standards, is being debated by the House judiciary committee -- and it differs substantially from the version that failed twice before. This time, the THC limit is part of wide-ranging legislation that makes changes in the way driving under the influence of alcohol is treated, and the language appears to offer alleged drunk drivers a new way to try to avoid punishment. Details and the bill itself below.

As we've discussed, the bill, co-sponsored by Representative Rhonda Fields (the victim of alleged threats by Franklin Sain over her gun-control advocacy), would establish a cannabis impairment level of five nanograms of THC per milliliter of blood.

This standard has been a subject of much debate among marijuana activists, who point out that THC lingers in a user's system long after many users are sober, creating the prospect of innocent people being convicted. In a gesture toward such criticism, the new bill replaces the previous "per se" definition of the limit -- which would have established guilty under all circumstances for those who tested at five nanograms or above -- with allowances for a "permissible inference" defense. The latter allows individuals to provide evidence that they weren't actually impaired despite the test results.

Here's a key passage from the bill, which is included in its entirety at the bottom of this post:

IF AT SUCH TIME THE DRIVER'S BLOOD CONTAINED FIVE NANOGRAMS OR MORE OF DELTA 9-TETRAHYDROCANNABINOL PER MILLILITER IN WHOLE BLOOD, AS SHOWN BY ANALYSIS OF THE DEFENDANT'S BLOOD, SUCH FACT GIVES RISE TO A PERMISSIBLE INFERENCE THAT THE DEFENDANT WAS UNDER THE INFLUENCE OF ONE OR MORE DRUGS.

Marijuana attorney Rob Corry believes this alteration is an improvement over provisions in the previous bills, but only by a smidgeon. In an interview with Westword, he called the current measure "95 percent bad," as opposed to the previous 100 percent. He makes similar points in a letter sent to legislators that was sent earlier today; it's on view below.

Meanwhile, an aspect of the bill that's gotten little attention since William Breathes's original post on the subject, published in December, is the change it creates in alcohol DUI law. Here's how it's explained in the bill's summary:

Under current law, in any prosecution for vehicular homicide or vehicular assault, if at the time of the commission of the alleged offense, or within a reasonable time thereafter, as shown by analysis of the defendant's blood or breath, there was 0.08 or more grams of alcohol per 100 milliliters of blood, or if there was at such time 0.08 or more grams of alcohol per 210 liters of breath, it is presumed that the defendant was under the influence of alcohol. The bill removes this presumption and states instead that such fact gives rise to a permissible inference that the defendant was under the influence of alcohol.

In other words, people busted for vehicular homicide who had a blood-alcohol content of .08 or above were presumed intoxicated under the previous legislation. But now, such individuals can argue that they weren't actually impaired despite the test, using the same permissible-inference defense inserted to placate critics of the THC standard.

How?

Continue to read more about the proposed change in the driving-under-the-influence law, including the complete bill and a letter from attorney Rob Corry. The explanation is found in another excerpt:

In any prosecution for the offense of DUI per se, the defendant shall be entitled to offer direct and circumstantial evidence to show that there is a disparity between what ANY tests show and other facts so that the trier of fact could infer that the tests were in some way defective or inaccurate. Such evidence may include testimony of nonexpert witnesses relating to the absence of any or all of the common symptoms or signs of intoxication for the purpose of impeachment of the accuracy of the analysis of the person's blood or breath.

Attorney Leonard Frieling, an expert on marijuana law (and a critic of the five nanogram driving standard), says a "nonexpert witness" might be someone who could testify that, for instance, he or she was with the defendant prior to the accident and saw no sign of intoxication or impairment.

Frieling admits to surprise that the change in the alcohol DUI regulations hasn't gotten more attention in the back-and-forths about the bill. But does he think a lot of drunk drivers will suddenly be off the hook in vehicular homicide cases as a result of the change? No.

"The per se laws aren't something DA's tend to use much," he says. "And I don't think they use it because they don't need it. The science on alcohol is much better than it is on cannabis, because alcohol is water soluble and cannabis is fat soluble. So the correlation between the impairment measure with alcohol is very good. If there's .08 blood alcohol content, you're getting a real sense about what's happening in the rest of the body. That's just not the case with THC."

At the same time, Frieling says he's heard no debate about changing alcohol DUIs from per se to permissible inference "in a really, really long time -- maybe never."

Making such a change in a law that's been widely accepted and non-controversial for years is an indication of how badly some legislators want a THC driving standard to pass this time around, whether or not the numbers make sense.

Here's the text of HB 13-1114, followed by the aforementioned Rob Corry letter.

House Bill 13-1114: Marijuana Driving Standards

Rob Corry Letter About Driving Under the Influence of Drugs Bill

More from our Marijuana archive: "THC driving bill, take three: Read draft language of proposed 2013 legislation."