DUI could include driving while stoned

Another bill attempts to tax pot
The Colorado Statesman

Marijuana advocates received surprising support on Monday from conservative Sen. Tim Neville, R-Littleton, who awed observers when he voted against a measure that would expand driving under the influence offenses to include the psychoactive ingredient in marijuana.

Neville was the only member of the Senate State, Veterans and Military Affairs Committee to vote against Senate Bill 117, which was ultimately backed by the committee by a vote of 4-1, following nearly seven hours of marathon debate. The bill now heads to appropriations to address a fiscal note of more than $603,000.

Neville, known around the Legislature for his almost libertarian views, said he could not vote for the measure given concerns that legal medical marijuana users could be prosecuted simply because tests show that they have levels of tetrahydrocannabinol (THC) in their systems.

Critics of the bill point out that it can take longer than a month for THC to fully purge itself from a user’s body. They point out that Colorado voters in 2000 amended the state constitution to allow for the use of medical cannabis, and therefore innocent regular users could be charged with a crime when they are really following state laws.

“The reason I voted against DUID ‘per se’ is that it puts a number of law-abiding people, in my opinion, in harm’s way,” Neville told The Colorado Statesman on Wednesday. “From a standpoint, it makes them potential criminals for doing activities that are totally legal.”

SB 117, sponsored by Sen. Steve King, R-Grand Junction, would offer prosecutors a tool in driving under the influence (DUI) cases to charge a driver with a DUID if they have a blood content of 5 nanograms per millimeter or more of THC at the time of the alleged offense, or within two hours after the traffic stop. The bill would expand the existing definition of “DUI per se” in order to offer district attorneys the prosecutorial tool.

Dozens of opponents lined up inside the Old Supreme Court Chambers at the Capitol on Monday to testify against the legislation. The normally boisterous and passionate group of marijuana advocates was subdued, aside from one minor innocent in which a sergeant-at-arms asked one cannabis supporter to leave. Colorado State Patrol calmed the woman, and the incident was determined to be a misunderstanding. The woman was allowed to stay.

The crux of the argument for opponents mirrors that of Neville’s concerns, suggesting that the science behind determining THC impairment is not accurate, and therefore the law would be an unfair burden to legal users.

“What has to be realized… is that there is wide disagreement about per se limits in chronic users,” testified Dr. Paul Bregman, a physician and well-known medical cannabis expert within the Colorado medical marijuana community.

Trade organizations for the cannabis industry also came forward to oppose the measure, arguing that while safety is a priority, so are the liberties of its members and patients.

“We continue to agree that it is not safe to drive impaired by marijuana,” said Mike Elliott, executive director of the Medical Marijuana Industry Group (MMIG). “While MMIG wants to protect our roadways from impaired drivers, we also want to ensure that unimpaired drivers are not wrongly convicted by an unfair standard.”

Patient advocacy groups have also stepped up to oppose the bill, including the Medical Marijuana Assistance Program of America (MMAPA).

“The concern is that the current proposed DUID bill lacks standards that could further discriminate patients who used cannabis as their preferred choice in medicine,” said Vincent Palazzotto, executive director of MMAPA.

Opponents had the support of the state public defender, Doug Wilson, who argued that prosecuting such DUID cases would be incredibly difficult given the fact that the science is still unconfirmed.

“It is going to be a court battle consistently until the courts do in fact accept the science,” he said.

King, however, believes the science is in, and offered a report by Dr. Jan Ramaekers, a Dutch researcher at Maastricht University in The Netherlands, as evidence. Ramaekers found that a THC level of 5 nanograms per milliliter of blood generally causes impairment. But even Ramaekers points out that the research is “experimental.”

“Several studies indicated that crash, culpability or impairment risk increases over 2-5 ng/ml in whole blood,” Ramaekers wrote in a report prepared for King. King had hoped to have Ramaekers testify at the hearing via voice-over-Internet technology, but the technology failed.

Given the research and the proliferation of medical marijuana in Colorado, King, a former police officer, believes Colorado cannot wait to act on expanding DUI offenses to marijuana.

“I think you have enough scientific data to establish a point where people can be driving impaired,” he told the State, Veterans and Military Affairs Committee. King asked that the lawmakers focus on the science over all other issues.

Science is the key to passing the legislation in Colorado considering last year a similar bill failed after concerns were raised that 5 nanograms was an unfair or unverified threshold for expanding the DUI law for marijuana use.

Legalization effort underway

King and other supporters of SB 117 — including the vast majority of the law enforcement community — feel growing concerns over safety and a believed “perversion” of medical marijuana laws could bolster support for the bill this year. Adding to the perceived urgency is a ballot proposal that asks voters to legalize the recreational use of marijuana in Colorado.

Proponents of Amendment 64 kicked off their campaign on Tuesday after the secretary of state validated 90,466 signatures to place the initiative on the November ballot. Proponents only needed 86,105 signatures to place the question on the ballot.

The signature gathering wasn’t totally smooth sailing for proponents as the secretary of state had originally rejected 79,936 signatures, forcing proponents to cure the invalid submissions. But after gathering another 14,151 signatures, proponents were told on Monday that they could proceed with campaigning for Amendment 64.

“We are on the verge of making history by ending the failed policy of marijuana prohibition,” said Betty Aldworth, lead advocate for the Campaign to Regulate Marijuana Like Alcohol.

Amendment 64 would make the personal use, possession of up to one ounce and limited home growing of marijuana up to six plants legal for adults 21 years of age and older. It would also require the Legislature to enact an excise tax of up to 15 percent on the sale of recreational marijuana, which would need to be approved by Colorado voters.

A similar initiative was widely rejected by voters in 2006.

This year, however, advocates have the support of former House Democratic Leader Paul Weissmann who said he is supporting the initiative because the so-called “War on Drugs” is failing. Weissmann encouraged lawmakers to emerge from the shadows to support the initiative, acknowledging that he himself has smoked marijuana.

“Go to your constituents and say, ‘How many of you have smoked marijuana, are you doing OK?’” Weissmann advised his former colleagues. “My guess is they are [doing OK]. We have three presidents now who have admitted that they have smoked marijuana, and they’re presidents — they’re doing OK.”

“We’re at a place in society where we see it’s not an overly harmful thing,” Weissmann continued. “We’re not advocating everybody smoke marijuana… but my guess is that [for] the vast majority of elected officials, their constituency has at least tried it and they’re fine.”

Some proponents began speculating that Neville might also be a high-profile politico to support the legalization of marijuana given his opposition to SB 117. But Neville told The Statesman he has not yet made any decisions.

“Let’s see what happens,” he said. “The constitution works well and we have the petition process… other than that I don’t have any comment.”

A problem, however, that legalization proponents could be facing is a divide within the cannabis community itself. Infighting has led to a proposal for a competing legalization effort that could result in two separate ballot questions asking voters to legalize the recreational use of marijuana.

Proponents for the other proposed campaign, Legalize2012, spearheaded by the Boulder-based Cannabis Therapy Institute, did not return requests for comment. Proponents of Amendment 64 do not believe it is likely that Legalize2012 will gather the necessary signatures to place a second initiative on the ballot.

Peter@coloradostatesman.com