THC driving limits could cause more innocent people to spend months in jail, attorney says

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On Monday, the Colorado Senate will take up HB 1261, a bill that sets THC driving limits at five nanograms per milliliter of blood -- a level to which many critics object. Indeed, even its sponsor, Representative Claire Levy, now thinks this number may be too strict. But attorney M. Colin Bresee says the problems run much deeper -- including test results that can take months to come back and prosecutors who don't understand them when they do.

As an example, Bresee shares a lab report from the Colorado Department of Public Health and Environment's Laboratory Services Division in regard to a client accused of driving under the influence of marijuana last year. Read it here:

As you can see, the blood sample was collected on September 4, 2010 and received by the lab on September 9. However, the report wasn't issued until November 15 -- more than two months later. And this type of delay is hardly unusual. Bresee notes that for another recent client, the span between collection and the report's appearance was nearly three months.

This could result in enormous hardship for an individual unable to post a DUI bond, which are typically set at around $1,000, Bresee says -- "and if you can't post a bond, you're not getting out of jail."

The document above also illustrates another issue that would be amplified by the passage of a THC driving limits bill, in Bresee's opinion. The results listed under the test name "Blood Cannabinoid Confirmation" read, "Delta-9-THC-COOH 30 ng/ml," which suggest that the driver in question had a THC level six times higher than the proposed intoxication limit. But that's not true, since the THC-COOH reading measures "the amount of THC that is stored in fatty tissue cells, but that isn't active," Bresee says.

Department of heath tests later showed that the amount of active THC in the driver's system (usually listed on forms as "Delta-9-THC," sans the COOH) was six nanograms. And a private test that Bresee says is more accurate than ones the state runs -- its methodology utilizes liquid, not gas, as does the CDPHE's lab -- registered the amount at just 1.5 nanograms.

Confused? So are many prosecutors, Bresee believes. They tend to assume that THC can be measured in the same way as alcohol, not realizing that the substance lingers in the body of a user in ways that will show up on tests but will not impede driving ability. "Here's the analogy I give," he says. "Imagine if someone got pulled over and had to do a blood test for an alcohol DUI, and not only did the test say how much alcohol you had in your system then, but also how much alcohol you've had in the past month. That's what it's like."

In one case set in a small eastern Colorado county, Bresee says it took him more than nine months to make a prosecutor understand the relevance of active versus inactive THC. And he thinks many people accused of driving under the influence of marijuana may have raised the white flag because they didn't register this distinction, either.

"If you didn't know the difference between THC and THC-COOH and your THC-COOH was over the five nanogram limit, you'd probably plead guilty, even if you weren't really impaired," he maintains, adding, "Prosecutors have literally made plea offers without even knowing the test results -- and people may be pleading guilty just to get out of jail, because it takes so long to get a test back."

In regard to the five nanogram limit, Bresee says, "the research I've read so far is very inconclusive. It seems like a convenient, arbitrary line, and the medical community is completely split on the line. So this seems more like politics -- that politicians are just picking a number -- than science.

"We created the medical marijuana laws first, and now we're trying to guess how to deal with it. We put the cart first, and now we're going to buy a horse. And when you get politics involved, I don't think people's constitutional rights are always the first concern."

More from our Marijuana archive: "THC driving limits: William Breathes is still (still!) waiting for blood test results."

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