This afternoon, Senator Steve King's revival of a THC-driving-limits bill will be the focus of a hearing at the State Capitol. In advance of the debate, attorney Rob Corry has released a letter, on view below, in which he argues against the measure. However, he also floats a compromise idea that he feels could bridge the gap between backers and opponents.
As we've reported, Representative Claire Levy sponsored a bill last year that would have established THC intoxication at five nanograms per milliliter of blood. Levy later decided this standard was too strict, and suggested that an 8 nanogram limit be substituted, but she didn't win the argument. The five nanogram version subsequently passed the Colorado House.
But following a report that Westword medical marijuana critic William Breathes's blood had tested at nearly three times the legal amount while sober, the aforementioned senate judiciary committee shelved the proposal pending future study, and an attempt to resurrect it again in May failed.
Months later, a divided DUID-marijuana working group failed to come to a consensus, with half the members in favor of a per se limit and the other half maintaining that unlike alcohol, THC tends to linger in users for longer periods of time, making it next to impossible to determine actual impairment via a blood test, at least under currently available technology.
Nonetheless, King, who declined earlier interview requests by Westword on this subject, is offering a slightly tweaked variation on the five nanogram limit. And last month, Senator Morgan Carroll told us she thinks it has a good chance of success due in part to legislative maneuvering. King will make his latest presentation in the military and veterans affairs committee -- a strange venue, but one that doesn't include members such as Carroll, who helped undermine the bill last time around.
As for Corry, he urges a "no" vote against what he characterizes as a "one-size-fits-all" approach unsupported by facts. "To my knowledge, there's no evidence" establishing that five nanogram of THC proves intoxication in everyone, "and mountains of evidence to the contrary. Every driver is different, and THC affects people differently. It's a medicine, and there's no other medicine with a per se amount that you can and can't have. If someone is arrested for impaired driving for using Oxycontin, there's no number attached to it. You have to prove the case with actual evidence; you don't get to rig the system.
"There's no argument that if you're at .08 blood alcohol content, you're not intoxicated," he continues. "That argument is off the table unless the test was done improperly or the equipment was defective, which is a hard argument to make. But that doesn't really get to the heart of the matter. If this bill passes, everyone with five nanograms of THC in their system is by law automatically intoxicated, and we know that's not the reality. As your colleague William Breathes demonstrated, five nanograms is an irrational standard."
Be that as it may, Corry would be willing to accept this limit under circumstances he describes in the letter like so:
If the bill cannot be voted down at this stage, at the very least, there should be an amendment that makes the five nanogram level a rebuttable presumption, and gives drivers an affirmative defense to demonstrate to a jury or judge that they were not impaired.
In other words, a five nanogram standard would be put in place but wouldn't spell instant guilt for a defendant. His or her attorney could present evidence intended to show that even though he was over the limit, he was not actually intoxicated.
Such an amendment "would bring a little more clarity," Corry believes. "Right now, the law says it must be proven beyond a reasonable doubt that somebody is intoxicated or impaired. So, under current law, some people under five nanograms are charged and convicted for impairment. But the reverse is also true: There are some people who are over five nanograms but aren't convicted, based on the evidence."
"If the legislation says there's a presumption you're intoxicated at five nanograms, you can introduce evidence to prove otherwise -- and that would be better than the bill passing in its current form. And it might arguably be better than the current system, if the goal is to create certainty and give jurors and prosecutors a little guidance."
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More from our Marijuana archive: "Rob Corry says Chris Bartkowicz medical marijuana bust proof the DEA has gone rogue."