Update below: A bill to set THC driving limits was put on hold in lieu of more study -- and more study is indeed taking place under the auspices of the state Commission on Criminal and Juvenile Justice (CCJJ). At 1 p.m. today, the so-called DUID-marijuana working group is meeting, and while some advocates fear its membership will result in the old bill's resurrection, co-chair Sean McAllister says that's not necessarily the case.
"The committee isn't stacked," says McAllister, an attorney and marijuana advocate, "and I don't think anybody on it is going to make a decision they think is contrary to the evidence.
"Problem is," he adds, "the evidence can kind of support any position you want to take."
HB 1261, last year's bill, was designed to set up a THC equivalent of blood-alcohol-content tests that establish impairment for drunk drivers. Opponents argued that such equivalency isn't possible at this point, given the way THC lingers in the bloodstream of MMJ patients. In contrast, alcohol leaves the system much more quickly, making BAC tests more effective for measuring actual driving impairment than its cannabis counterpart, they maintain.
Nonetheless, the measure was okayed by the Colorado House, even though its original sponsor, Representative Claire Levy, admitted to concern that the limit set by the legislation -- 5 nanograms of THC per milliliter of blood -- might actually be too strict. She proposed an amendment changing the level to 8 nanograms, but it was defeated. She ultimately voted in favor of the 5-nanogram mark in order to give the Senate a chance to consider it further.
Around the time the state senate tackled this task, Westword medical marijuana critic William Breathes took a blood test that showed he was nearly triple the proposed limit when sober -- and these results, along with other evidence that raised similar questions about the effectiveness of a 5 nanogram limit, convinced the Senate Judiciary Committee to set the bill aside. But the DUID marijuana working group has been looking at the issue again over the past couple of months -- which came as a surprise to activists such as the Cannabis Therapy Institute's Laura Kriho. She charges the CCJJ wth violating open-meetings laws by not offering adequate public notice about the get-togethers.
McAllister, the working group's co-chairman along with Arapahoe County Sheriff Grayson Robinson, doesn't take a position on this assertion, saying it's the CCJJ's responsibility to comply with all pertinent open-meetings laws. As far as he knows, however, the working group sessions have been public. "I've told everybody in the community that I'm the co-chair of this committee, and people should contact me if they want to participate," he says. Among those who accepted his offer: Michael Elliott, executive director of the Medical Marijuana Industry Group (MMIG), whose organization agreed that there was a need for a THC-driving bill but didn't take an official stand on Levy's measure.
Joining McAllister, Elliott and Robinson on the committee are Christine Flavia of the Division of Behavioral Health, the Colorado Judicial Department's Heather Garwood, Colorado Springs Police Officer Rod Walker, 5th Judicial District DA Mark Hurlbert and Laura Spicer, a drug-addictions counselor. McAllister says Spicer is "on a crusade" to establish a law about marijuana-related driving impairment, for a very personal reason. "Last fall, she said, 'My kid was almost hit by somebody, and the car smelled like marijuana,'" McAllister notes.
As for McAllister, he's serving pro bono, and he portrays his membership as an outgrowth of his co-founding seven years ago of the Colorado Criminal Sentencing Project, in which "a diverse group of lawyers, judges, DAs and defense attorneys" made recommendations about needed law changes. "It was a predecessor of the CCJJ.
"My goal was to reform drug laws, and we had some major reform last year," he continues. "I was appointed under Governor Ritter's administration to the Drug Policy Task Force, and we came up with recommendations to make it a misdemeanor to cultivate up to six plants, to bring hash down to a misdemeanor, and to increase limits for simple possession from one ounce to two ounces. It was nothing revolutionary, but we've made some serious incremental changes already that very few people give me credit for."
Regarding the THC driving limits issue, he says, "Law enforcement got sick of pulling people over and them pulling out their red card and saying, 'I'm legal. Get out of my face.' There was a big pushback -- and patients haven't done themselves any favors by having an antagonistic attitude toward law enforcement."
In the beginning, McAllister saw Levy's bill as among the most progressive THC driving measures in the U.S. "Some states say there can be no THC, some say there can be one or two nanograms. Five would have been the highest there was, and we were told no one could be over five nanograms four to six hours after use." In addition, "I thought we were recommending a presumption that people were clear rather than a per se limit."
As such, McAllister admits to having been "blindsided" by the red-line standard, as well as questions about THC measurement presented to the committee. That's why "I lobbied against the limit before the legislature, and I think the legislature did the right thing by rejecting the limit. The science was rushed, and I have a much more sophisticated understanding about the issue than I did last year. That's why I'm coming down against any kind of per se limit -- and even a rebuttal presumption might be problematic, because the science is not yet clear."
Given the preponderance of law enforcement or state personnel on the working group, McAllister would seem to be in the minority if he sticks by these positions. But he doesn't think the fix is in. While he feels some committee members have made up their minds in favor of a strict limit, he contends that others are open to different possibilities. And even if a majority ultimately comes down on the side of such a standard, he stresses that the working group is only offering a recommendation.
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Ultimately, though, he concedes that "this may come down to a public-policy decision more than a science decision, because the science isn't totally done yet. It may come down to whether people want a standard that may save lives but is overprotective or whether we care more about individual rights and the fear of convicting some people who might be innocent."
Today's meeting takes place from 1 p.m. to 3 p.m. at Division of Criminal Justice, 700 Kipling Street, in the fourth floor meeting room. It is open to the public.
Update, 1:51 p.m. August 24: The aforementioned meeting has been canceled, and activist Laura Kriho says the reason has to do with the issue of open-meetings-law compliance. Get details in our post "Marijuana work group meeting on THC driving limits canceled: Open-meetings-law concerns?"
More from our Marijuana archive: "THC driving test on HDNet shows marijuana impairs, but does it prove anything? (VIDEO)"