DENVER–The third time may be the charm for a bill that sets a blood limit to determine who’s too baked to drive, which was approved Tuesday by the House Judiciary Committee.
“We can’t kick this can down the road any longer,” said House Minority Leader Mark Waller (R-Colorado Springs), who sponsored the bill with state Rep. Rhonda Fields (D-Aurora). “It’s high time we give law enforcement the tools they need to ensure the safety of our roads.”
Previous efforts to push through similar bills fell short in 2011 and 2012, but this year’s model contains a key difference. Instead of establishing the so-called “per se” rule, which defines as impaired any driver who tests over a certain blood limit, House Bill 1114 uses the “permissive inference” standard.
That means any driver who tests above 5.0 nanograms of delta-9-THC, the psychoactive ingredient in marijuana, per millileter of blood would be considered under the influence–but it wouldn’t be enough for an automatic conviction.
Drivers would be able to argue in court that they were unimpaired based on mitigating factors, such as tolerance or size, even if their blood level tested above the 5.0-nanogram level.
House Judiciary Committee chair Daniel Kagan (D-Cherry Hills Village) said he voted against the two prior bills but that he would support HB 1114 because it gives drivers who may be highly tolerant of marijuana an opportunity to prove they were sober.
“The only question before the jury is, ‘Were you or were you not impaired?’” said Kagan. “And therefore this is a very much fairer process than saying, ‘It’s illegal to drive with five nanograms in your system whether you were impaired or not.’ This is exactly how the system is supposed to work.”
Opponents of the bill, who packed the hearing room, argued that the permissive-inference standard still represents an unfair hurdle for marijuana users, particularly medical-marijuana patients. Anyone who wants to challenge a citation must still submit to a blood test and then take their case to court, a potentially expensive and time-consuming process.
“Most of America does not have the money to go out and pay for attorneys. In order to fight this legislation, you have to get counsel. That’s just the way the system works,” said Jason Warf, director of the Colorado Springs Medical Cannabis Council.
Like Warf, many medical-marijuana users who testified Tuesday said they routinely exceed 5.0 nanograms of delta-9-THC without feeling impaired. They argued that no study has been able to ascertain what constitutes impairment.
“It’s a pretty arbitrary number at five nanograms,” said Warf. “The prosecution still has the rubber stamp when they draw your blood to charge you, and then it’s your burden rather than theirs to prove it and pay for the attorneys to do so.”
The state already has laws against driving under the influence of drugs, which involve a field-sobriety test, a method that the bill’s foes described as much more accurate for determining impairment resulting from marijuana than a blood test.
Several legislators said they were more likely to vote in favor of the bill as a result of the passage in November of Amendment 64, which legalized recreational marijuana use for adults 21 and over.
Not only is the state likely to see an increase in stoned drivers, said lawmakers, but the amendment requires the state to treat marijuana like alcohol. Under state law, any driver whose blood-alcohol content exceeds .08 is considered to be driving under the influence.
“Amendment 64 says we’ll regulate marijuana like alcohol, and we have limits about driving drunk,” said state Rep. Lois Court (D-Denver). “So I think we have to do something because Amendment 64 tell us we have to. We are directed by the constitution to do it.”
State Rep. Bob Gardner (R-Colorado Springs) called it an “outrage” that previous legislatures failed to pass a per-se test for driving under the influence of marijuana.
“I find it the height of hypocrisy perhaps to say that we’re going to treat marijuana like alcohol in Colorado, that’s what we want to do, but oh, by the way, when it comes time to talk about driving under influence, a bunch of people in this chamber and on this committee are unwilling to adopt a per se limit like we do with alcohol,” said Gardner.
Nevertheless, he said he would support HB 1114. “I’m a pragmatist,” Gardner said. “It’s what we can do, and we’re going to get it done.”
The bill, approved by a vote of 11-0, advances to the House Appropriations Committee.