Despite that driving under the influence of marijuana

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The Colorado House Bill 1261 hearings represent a perfect modern case study in prohibitionist thinking.

According to the proponents the science is clear and we just can’t take a chance, from the public safety perspective, of letting people under the influence of marijuana (“cognitively slowed and diminished, scientifically just like alcohol”), stay on the road.

Despite that driving under the influence of marijuana is already illegal and people are punished for it, not to mention sued, do we need to make it even easier for prosecutors to get convictions? Why is this? To combat a perception, projected by the Office of National Drug Control Policy, Law Enforcement and the Addiction Treatment Community, that marijuana has recently become more available in Colorado, in part due to the proliferation of medical marijuana licenses:

These notes are not 100% complete but I wanted to get them up asap.

notes on the 3/8/2011 Colorado House Judiciary Committee HB 1261 hearings:

Committee Chairman Bob Gardner “Next up is HB 1261, Reps. Waller and Levy. Let me speak to the audience briefly, this is the 3rd in our MJ legislation trilogy this year, and on the prior 2 occasions there have been instances of public displays in the committee room, whether applause or cheering, let me just say that is not appropriate and I will ask you to refrain from doing so…And the title of the bill and matter about which we will be accepting testimony on is concerning the establishment of a THC blood content threshold for puprose of charging a person with the criminal offense of DUI Per Se..not a hearing on legalization or whether medical marijuana should be changed…I will be using the (timing) lights this afternoon with the exception of some witnesses that are informational or representatives of state or law enforcement”

Claire Levy “This bill comes out of the Commission on Criminal Justice. One of my constituants who you’ll hear from brought to me the concerns she has…in working in the District Attorney’s office in Boulder…that marijuana use is becoming more accepted it’s more prevalent, with MMJ, decriminalization largely of possession, and with that we have to protect public safety on the roads…I admit to being skeptical about whether we could set some kind of scientifically validated limit, so I said let’s take it to the drug policy task force of the CCJJ and let them look at the evidence, and given that you have defense attorneys and prosecutors and law enforcement and all sorts of people representing different interests, I wanted them to take a look. Which they did, rather exhaustively, and ultimately recommended the 5ng level. Some folks who appeared in front of the DPTF thought we ought to do a 2ng level and the committee looked at it and decided that since this is a fairly new area for states to get into that we should go with the 5ng limit which some other states have adopted and some literatures seems to support.

So that’s the bill, from the DPTF it went to the larger CCJJ, that commission voted to support it, and that brings us here. I will let former prosecutor Rep Waller explain the nut and bolts, and let me just explain exactly what it does, it does establish a per se limit for driving, if you test above that limit you would be guilty of the misdemeanor of dui drugs, the limit is established as a unit of whole blood and the test is for delta 9 THC which is the psychoactive component of cannabinoids and it is measured as a unit of whole blood vs plasma.

I’ve presented to the committee…I think you should have this, I’ve got about 45-50 copies for the audience but what I’ve got here is a chart that shows, one side is smoking, the other is oral consumption, how THC levels are absorbed into the blood stream and dissapate. You need to focus on the dotted line that shows THC, so this graph shows that immediately after smoking you may have up to 150ng per ML of plasma, divide by 2 to get whole blood, but then very quickly it falls to a legal limit, and it’s kind of approximate here but translating it to whole blood roughly 1 hour after smoking you’d be under the legal limit, and on the other side, oral ingestion, THC would never rise to the legal limit…that’s all the comments I have.

Rep. Waller “I agree with what Rep Levy has told us and I agree I was a bit pessimistic as well but I didn’t know that (nanogram testing) could happen but once it went through the DPTF and they assured us they could test the part of THC that renders you under the influence to be driving when we found they could measure that, and that smoking and ingesting would have a close nexus to the time of driving, I became convinced we could establish a THC limit just like for alchol and this was a good idea…

For the nuts and bolts, Rep. Levy said it establishes a per se violation, it does, a per se violation of driving under the influence of marijuana, simply called, driving with an excessive THC limit, just like we have a per se limit for driving under the influence of alcohol, excessive BAC, but this bill also creates a presumption that when you’re driving in the state of CO tnd your thc limit is 5ng or greater it creates the presumption you’re under the influence of MJ, that is a rebuttable presumption for the charge of DUI, and likewise there’s a presumption that you’re not under the influence if you’re under 5ng, and that’s effectively what this bill does.

Now I’ve heard a lot of discussion, gotten a lot of emails, like I’m sure most of the committee, some folks say well, you’re to going to prevent peolpe who are legitimate mmj users from excercising their right to drive, well it’s currently against the law to drive under the influence of MJ just like any drug whether it’s prescription or illegal…when I was a prosecutor I prosecuted a person for driving under the influence of Ambien. And we got a conviction…so it’s currently against the law to DUI drugs whether prescription or not, we have a duty to protect public safety which is why we create these DUI laws in the first place.