Medical Marijuana Patients and the Felony DUI

DUI Check PointToday I testified in opposition to the proposed Felony DUI Bill (HB1043) when it was heard by the House Judiciary Committee in Colorado. Many of those who testified before me were victims of drunk driving accidents. It was clear that alcohol was the real problem, not cannabis.

In 2013, after a lengthy battle requiring three separate attempts, the DUI for THC law was finally passed.  It established a 5 nano gram limit for  THC in whole blood for a charge of Driving Under the Influence (DUI). Using “permissive inference” rather than “per se”, this version of the bill was a little better than previous years.

In Colorado, alcohol has a .08 blood limit to establish Driving Under the Influence. This limit was reached after years of science and has been adjusted along the way. This is a “per se” limit, meaning that if you’re over .08 you’re impaired, period.

THC has a 5 ng limit in whole blood to establish DUI. This limit does not have much research to support it, and most experts agree that there is little, if any, relationship between THC blood levels and impairment. But we’re stuck with that limit anyway. After Amendment 64 passed, the Legislature felt they had to do something. “You said ‘like alcohol,'” they would tell me, even though “like alcohol” was never meant to apply to medicine for patients.

Waiting to testify against the Felony DUI Bill.

Waiting to testify against the Felony DUI Bill.

When the DUI THC bill finally passed, several legislators told me that they didn’t know if 5 ng was the right number, but they felt they had to do something. They were much more comfortable now that it was permissive inference rather than per se. They’d leave it to the courts to sort it out. Of course, that gave no consideration to the fact that mounting an effective defense against DUI costs somewhere around $10,000, which would be especially difficult for already economically disadvantaged patients to afford.

When convicted of a DUI, even if THC is the only drug “on board,” you’re required to install an interlock device for alcohol at your expense. And while on probation, patients can be denied access to cannabis even if it’s the only medication that’s effective. We hope to fix that problem with an upcoming piece of legislation.

Medical marijuana patients are most vulnerable because they’re likely to be over 5 ng with no impairment. However, their condition may make it difficult to pass a roadside test, especially if they have pain, tremors or spasms.

And now, with no concrete science to back it up, patients that can’t afford to mount an effective defense can be charged with a felony. Lovely.

Essentially, this was my testimony (from my notes):

DUI no longer applies only to alcohol.

We may be one of only 5 states without a felony DUI, but we are also one of 23 states with a medical marijuana law.

When the DUI for THC bill passed in 2013, I was told by several legislators (many who sit on this committee) that they weren’t certain that 5 nano grams was the right number, but they were willing to let the courts sort it out.

Today, this cavalier attitude has the potential to not only charge innocent patients with DUI, but if they can’t afford to mount a defense, charge them with a felony. It’s bad enough that patients are force to pay for and install an interlock device for alcohol even if alcohol wasn’t involved, and patients already risk losing access to medical marijuana on probation even if that’s the only medicine that works, now you want to charge them with a felony.

The 5 nano gram THC driving limit was approved in 2013, and it hasn’t been without it’s challenges. But we’d better be damned sure we’ve got the science right and the number right before we start charging people with felonies.

I ask you to make an exception for THC, especially for patients, until we have more science to substantiate it.

Unfortunately, the bill passed out of committee unanimously this evening. It has a pretty hefty fiscal note, at a whopping $42 million over 5 years estimated for the additional offenders. This is at a time when we’re refunding retail marijuana tax revenue while schools and infrastructure crumble.

Next stop: House Appropriations Committee.



Categories: Colorado, Driving, Law Enforcement, Patients, Policy & Politics, War on Drugs

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  1. UPDATE: Medical marijuana at the half-way point | Cannabis Patients Alliance

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