“Preponderance of Evidence” Considered for Driving While High Bill

December 10, 2012

State lawmakers will consider drug DUI legislation this year

DENVER– Amendment 64 proponents are euphoric over statewide voters’ nod to legalize marijuana – but sobering legislation is on the horizon. State Senator Steve King (R-Grand Junction) said he plans to introduce a new drug DUI bill in January – but it may have a new legal twist.

The bill, he said, may be based on “preponderance of evidence.”

If so, it would eliminate the per se standard in King’s previous bills and a new one that’s listed on Colorado Transportation Legislation Review Committee’s list of bills in 2013.

King said he has been working on the bill with Colorado Commission on Criminal & Juvenile Justice which recently advocated the switch from the per se standard to preponderance of evidence.

“Preponderance of the evidence” is a measure of proof that is less than reasonable doubt, and clear and convincing evidence, but greater than probable cause. The evidence in court is based largely on the testimony, reports and observations of law enforcement officers.

King’s past bills, which failed, set a per se standard to determine impairment as “more than 5 nanograms of delta 9-tetrahydrocannabinol (THC) per milliliter of blood.”

Those bills were mired in debate over the scientific studies of THC, he said, and a misunderstanding that THC indicated levels of drug intoxication. Only Delta 9-THC– not THC– in marijuana can cause intoxication and dissipates over several hours.

“You don’t stay high all the time,” said King. “You slowly come down from being high.”

Because voters passed Amendment 64, 55 to 45 percent, in November, King said the increased number of recreational users will result in much greater numbers of drug-impaired drivers.  A new DUI bill, he hopes, “will bring sanity” and save lives that could be lost in more traffic accidents.

Colorado and Washington became the first two states to legalize recreational marijuana.  Thursday, Washington residents were free to light up, however, the voter-approved Initiative 502 includes a DUI per se limit of 5 nanograms of THC per milliliter.

Another 14 states have legalized medical marijuana, but none are immune to federal law that criminalizes cannabis as a Scheduled I drug, along with LSD and heroin, under The Controlled Substances Act.

Despite numerous petitions over four decades and legislation introduced last year by Reps. Ron Paul (R-Texas) and Barney Frank (D-Massachusetts) to decriminalize cannabis, it still is listed under the most dangerous drugs.

Without the per se limits, King’s new bill may eliminate hours and hours of debate over the merit of conflicting studies. But, the “preponderance of evidence” basis also promises lengthy dialogue.

Regardless of the standard for drug DUI, law enforcement officers can stop a driver for probable cause that can range from failing to signal a lane change to erratic driving.

California’s drug DUI law, based on “preponderance of evidence,” is described by some attorneys as a low threshold to prove because it assumes the charge would not have been made without justification.

Others argue that the standard is superseded in court by the need to provide proof beyond a reasonable doubt – the highest standard – in order to win a criminal conviction.

According to Darrell York, a California criminal defense attorney and former policeman, the arresting officer makes assessments of the driver’s physical appearance, dilated pupils, lack of physical coordination, slurred speech, slow responses – and the smell of cannabis.

In court, the officers testify about those observations, the defendant’s performance on a roadside sobriety test and the results of a blood or urine test administered to measure marijuana in the bloodstream.

“THC (high) effects last only a few hours,” York said in a website interview. “THC itself can remain in your body for days, weeks or even months. It is virtually impossible (for a test) to detect when you actually used marijuana.”

Michael Scaffidi, aRiversideattorney and former police officer, declared, “People are routinely wrongly prosecuted for California DUI marijuana… simply having marijuana in your system doesn’t make you guilty of driving under the influence.”

In Washington, the legalization of marijuana was celebrated Thursday, but it was also lamented among lawyers who think the per se standard of THC levels is arbitrary.

“People would likely register the 5 nanograms level or higher even several hours after marijuana consumption,” said Tim Milios, a Seattle attorney, in a statement.

“It’s one thing to tell a recreational drug user that there is no tolerance for driving after consumption of the drug. It’s another thing entirely to take the keys out of the hand of one who relies on prescription medication regardless of impairment or lack thereof,” said Milios.

“People get stopped, arrested and charged for DUI, even when they are not impaired,” he said. “Often times, the initial stop has nothing to do with impaired driving but then turns into a DUI investigation after the odor of an intoxicant is discovered.”

Whether people use marijuana or alcohol, Milios said his advice is don’t drive – “you’re testing fate.”

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