In January, Senator Morgan Carroll told us she feared Senator Steve King's reboot of the THC driving bill would be difficult to kill due to a clever maneuver that avoided her committee -- and the tricks didn't stop there. The measure appeared to die on the Senate floor a short time ago, but it was called back for a second vote and passed by a single vote.
Here's a quick take from Jessica LeRoux, the woman behind Twirling Hippy Confections and an original member of the Department of Revenue's medical marijuana working group:
"Oh, fuck, they recalled the count with a silent vote, and SB 12-117 passes 18 to 17."
The bill would establish a per se THC impairment limit of 5 nanograms per milliliter of blood, with "per se" establishing the sort of bright line that translates to instant guilt in the eyes of the law. Opponents raise questions about the usefulness of the standard, in part because of the proclivity of THC to linger in the system of users. For example, medical marijuana reviewer William Breathes registered at nearly triple that level when sober during a test last year. Such evidence led to the original bill being shelved in lieu of further study.
Carroll touched on some of these issues in what Breathes describes as an impassioned plea for legal sanity. She argued that the 5-nanogram limit is too low for many medical marijuana patients. Moreover, she sees the measure as providing an affirmative defense for driving after using cannabis as long as they're under that number.
"One might think we are debating whether people can drive high in Colorado or not," she said. "I'm pretty sure the vote would be 35 to zero if that were the case, but it's not. There is no question that some people at that 5-nanogram level would be impaired. But the problem is that there are also folks at that level who aren't impaired."
Speaking in favor of the bill, King quoted statistics concerning the number of drivers found to have had THC in their system. But as Breathes points out, these statistics don't specify whether the individuals in question registered over or under 5 nanograms or if the THC in their blood was active -- a key to establishing actual impairment.
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Attorney and former judge Leonard Frieling, who spoke to us in March about what he sees as the astronomical costs associated with the bill, is pleased that a portion of the proposal that would have set a zero-tolerance standard for schedule I and II drugs was stripped out late last week. But that's the only positive he sees.
"Why is it, they think they are smarter than the guys who looked at this last year?" he asks. "Why are they wasting time with this again? It's just incredible."
In his view, the state "doesn't need this at all, because the current law works. And if they really want to focus on the five [nanograms], they can state it as a rebuttable presumption. Take the 'per se' words out of it. That would agree better with the science, which shows that at five, some people may be impaired, but some people are not.
"The correlation between blood alcohol and impaired driving, as I understand the science, is pretty clear: The higher the number, the worse you drive. But that appears not to hold true as cleanly with cannabis. So talking about impaired driving is one thing, but trying to give a number a meaning it doesn't have is something else entirely."
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Now the bill heads to the Republican-controlled House, where the measure is likely to have a great deal of support -- hence LeRoux's note to opponents. "Every MMJ activist needs to be at the ready to get to the Capitol at a moment's notice this coming week," she writes. "Send your e-mails to senators and representatives, tell them not to support SB 12-117."
Frieling's conclusion: "We took a very long look at this last year -- looked at it very carefully. And the ultimate conclusion was, 'We are not going to pass this.' What's changed?"
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More from our Marijuana archive: "CU-Boulder students to fight 4/20 trespassing busts on First Amendment grounds."