THC driving bill: Schedule I and II drug additions broaden rejected measure

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Last April, as we've reported, a bill to set THC driving limits was put on hold by a senate committee -- and a DUID-marijuana working group charged with reconsidering the issue deadlocked over the question of per se standards. Nonetheless, Senator Steve King is sponsoring a new version of the bill, and it passed its first committee on Monday. But would it do more than impact marijuana users? Yes, says Senator Morgan Carroll -- a lot more.

In addition to setting an impairment limit of five nanograms of THC per milliliter of blood, the version of the bill that's currently online also establishes a zero-tolerance standard for any and all Schedule I or Schedule II drugs, which include everything from illicit substances such as heroin (Schedule I) to prescription medication like Seconal (Schedule II). See the complete, eleven-page list of Schedule I-IV drugs below.

We've also included a copy of the bill below -- but here's a key section from its summary.

In any prosecution for a driving under the influence (DUI), driving while ability impaired (DWAI), vehicular assault, or vehicular homicide, if at the time of the commission of the alleged offense, or within two hours thereafter, the defendant's blood, urine, or saliva contains any amount of a schedule I controlled substance, except for tetrahydrocannabinols; a schedule II controlled substance; salvia divinorum; or synthetic cannabinoids, or the defendant's blood contains 5 nanograms or more of delta 9-tetrahydrocannabinol per milliliter in whole blood, such fact gives rise to the permissible inference that the defendant was under the influence of drugs.

The result, says Carroll, who helped lead the charge against the original measure, "is actually a broader bill than the one last year." And she speculates that the additions grew out of criticism leveled against the first version.

"One of the questions that came up last year was the idea that marijuana was being singled out -- that if you're concerned about impairment, shouldn't you be equally concerned about impairment from the variety of other prescription drugs that people take, and not just medical marijuana," Carroll notes. "And I had an advocate for this bill say to me, 'We listened to that and we agreed.'"

However, no standards for Schedule I or Schedule II drugs are included in the bill. Why not? "I don't think there are figures available," Carroll allows. "I just don't think science tells us at what point we have impairment on any of those substances. I don't know if the decision to go with zero tolerance had anything to do with that. Maybe it's just easier to enforce, because if you find anything, you've got a conviction."

The problem with such an approach from Carroll's perspective is that "the law needs to make sure people are actually impaired. It's the same problem as with the five nanograms. Some of these folks may be impaired, and some of them may not be."

Carroll didn't have the opportunity to make these points at the Monday hearing, because rather than bringing the bill to the judiciary committee on which she sits, as happened last year, King funneled it through the veterans and military affairs committee, whose focus seemingly has nothing to do with the measure. The strategy makes sense to Carroll from King's perspective: "I think some of it was vote-counting, because obviously the bill ran into some opposition in judiciary," she suggests. But what rules allow such a tactic?

"The assignment of committees for the House is 100 percent up to the Speaker, and the assignment of committees for the Senate is 100 percent up to the Senate president," Carroll says. "So it's at the discretion of the president to decide what committee hears the bill, and they can consider what the sponsors request, if the constituents in their district are especially interested in the outcome -- any of those things. But it's certainly an unusual assignment."

Now that the bill has received the veterans and military affairs committee's blessing, it heads to appropriations -- and even though implementation is expected to be expensive (estimates range from more than a half-million dollars to $1.2 million), few observers think the measure will get stuck at this stage.

Carroll's take? "I'm told the best chance to stop it is on the Senate floor," she says. "Last year was a long shot. It was supposed to sail through last year, too -- and there's definitely been a doubling-down in an effort to get it through this time. But on the Senate floor, we can really have a debate about whether this bill ultimately passes or not."

Such a conversation will presumably also touch on the impact it may have on plenty of others, including people taking prescription medication who may now be found guilty of driving under the influence of drugs when they're not really impaired.

Look below to see more photos of this week's hearing, as well as a copy of the bill and the list of Schedule I-IV drugs.

Senate Bill 12-117
Controlled Substances List

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More from our Marijuana archive: "THC driving bill may be hard to kill despite iffy science, senator says."

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