The second major battle in March took place over House Bill 1261.
This bill was proposed by Boulder Democrat Claire Levy and infamous Colorado Springs Conservative Mark Waller. It gives an automatic DUI to those driving with more than 5 nanograms of active THC per milliliter of human blood. It should be noted that it is ALREADY ILLEGAL to drive under the influence of ANY drug. However, a specific limit that correlates to THC impairment is subjective and arbitrary according to the latest peer reviewed science.
The limit being proposed by the State is not an actual determinant of intoxication or impairment. In fact, the arguably more dangerous pharmaceutical version of marijuana, known as Marinol, has been approved by the FDA and has instructions that patients can drive on the drug “once acclimated to its effects”. Despite the federal stance on driving with THC in one’s system, the State chose a low limit to automatically judge patients as intoxicated and issue a DUI per se. This bill removes the right for a patient to prove in court that their THC blood level did not correlate to impairment at the time of driving, to warrant the charge of DUI.
The problem with the State’s proposed limit is in the report they used to determine the 5 nanograms.
The report concluded that drivers do not pose a crash risk until they reach between 10-20 nanograms of THC per milliliter. They also determined that 18-20 nanograms is the equivalent of a blood-alcohol content (BAC) of .08, the current legal limit in most U.S. states and in Colorado.
I also reminded the House Judiciary Committee to keep in mind that Americans have had cannabis and automobiles for over 50 years without abnormal increases in cannabis related crashes or fatalities. Alcohol still wins this one, and the limit for it is at .08 BAC; the equivalent of 18-20 nanograms per ml according to the report used to determine the 5 nanogram limit in HB 1261.
We all want safe streets, but is the 5ng limit accurate and fair to patients who use their medicine daily? Will it show up in their blood at such a low level even if they haven’t used cannabis within the day? Or over a few hours?
I know this is a touchy subject between individual rights and public safety. As HB 1261 stands, I see the limit as too low and the bill lacking in protective provisions.
This conservative figure would greatly increase the amount of cannabis related imprisonment for patients without appropriately determining actual danger to the public.
There are no limits for other narcotic medications such as vicodin, xanex, Percocet, codine, morphine, cocaine, valium, or Benadryl all of which impair ability with effects similar to those of medical cannabis.
Additionally, patients with conditions like MS, Cancer, and pain are at greatest risk of unfair prosecution when blood limits correlate, but do not effectively determine, a standard of impairment.
Many patients’ conditions leave them susceptible to probable cause clauses within the current construct of police procedure. Specifically, MS patients can shake or have dilated pupils regularly.
By showing their red card to police, are patients increasing their risk of unfair treatment and arrest? Is using one’s constitutional right as a defense self-incriminating if a patient shows an officer their red card?
In Colorado Springs, there have been reports of “random pull-overs” of people leaving cannabis facilities in which the officer asked only for proof of a red card. They did not ask the driver for their license or insurance.
This is already a real threat for constitutionally protected patients that HB 1261 fails to address. There is a lack of provisions in this bill to protect legitimate patients from police powers when determining probable cause. As it stands, the subjective smell of cannabis alone could warrant search and seizure as well as the mandatory blood test from patients. What’s to stop officers from sitting outside a dispensary to find violations and target patients?
Unlike closed-contained alcohol, recently purchased and sealed cannabis has an odor that police can subjectively interpret as probable cause for a blood test and DUI charge.
Just laws should be made taking into consideration the widest understanding of medical compassion possible for patients. In other words, the punishment should fit the crime and the last thing people want to see from their government is compassionless laws that criminalize the medication people CHOOSE to use.
The law does not protect patients sufficiently against unjust probable cause solely on the premise they smell or have marijuana in their possession. It also uses a very low and arbitrary limit to base a DUI on. There should be additional provisions in the bill dictating appropriate police procedure to determine a DUI after a legitimate Red Card license has been presented to an officer.
For example, does the patient have open or recently used cannabis in sight? Can they explain the smell of cannabis as a recent purchase rather than an ASSUMPTION of use?
Unfortunately, the House Judiciary Committee voted to put this through the legislature and this bill is on its way to becoming the first Colorado marijuana DUI bill. Although we cannot argue against setting limits for THC drivers to make safer streets, we can call out the ignorance of scientific fact by Colorado politicians and the failure to protect patients as guaranteed by the Constitution from unfair police targeting and prosecution.
As always, I encourage readers to participate in exercising their power as citizens and voters and to write the Colorado legislature. Let them know about these issues affecting the rights of every Coloradoan and patient.
House Judiciary Comittee:
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