“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.”

Comments made by visitors are not representative of The Colorado Observer staff.

One Response to “Preponderance of Evidence” Considered for Driving While High Bill

  1. Del V
    December 11, 2012 at 6:10 pm

    It seems Rep. Steve King is very anxious to pass a Driving While Stoned law. So far, his bills amount to Guilty Until Proven Innocent laws. As the State of Colorado decides how to deal with the peoples’ decision to legalize possession of a plant, proposed “Driving While Stoned” laws may negate the will of the people.

    The problem with the proposed, “Driving while stoned” laws, is that five nanometers of THC can appear long after the driver is no longer impaired, and this may offer a substantial revenue motive for law enforcement:

    “However, heavy marijuana users’ blood can contain detectable amounts of THC even after periods of abstention. In one controlled study, six of 25 participants tested positive for active levels of THC after a full seven days of abstention, with the highest concentration detected being three ng/ml of whole blood.4 In addition, the blood serum of heavy to moderate users may contain more than two ng/mL of THC at 24 or even 48 h
    ours after smoking a single joint, a level that studies have shown does not produce impairment.5.

    This is a particular concern for medical marijuana patients who are using marijuana in compliance with state laws and their doctors’ advice, but who would likely test positive for marijuana while sober. While the Colorado Legislature debated a per se THC limit of five ng/ml, Denver News’ medical marijuana reviewer (and medical marijuana patient), William Breathes, subjected himself to blood draws to test his THC levels. After a 15-hour period of abstinence, Mr. Breathes’ THC levels were still 13.5 ng/ml. According to his physician, Mr. Breathes was in “no way incapacitated” at the time.6 This first-person account demonstrates the very real possibility that medical marijuana patients and other heavy marijuana users could face criminal charges under a per se system even if they are not actually impaired.”


    It may not be as simple as testing the blood for THC, in order to determine impairment. Proposed legislation that is gaining traction is merely offering drivers the opportunity to challenge the allegation that they were impaired. If this sounds like being charged as guilty until proven innocent, it is probably because that is exactly what it is. If this law passes in its current form, marijuana will still be effectively illegal if you drive regularly.


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