Colorado Legislature Wrestles with Presumptive Limits for Driving Under the Influence of Marijuana
Under the current law in Colorado, it is unlawful to drive while impaired or under the influence of marijuana. See C.R.S. section 42-2-1301. Driving under the influence “means driving a motor vehicle or vehicle when a person has consumed alcohol or one or more drugs, or a combination of alcohol and one or more drugs that affects the person to a degree that the person is substantially incapable, either mentally or physically, or both mentally and physically, to exercise clear judgment, sufficient physical control, or due care in the safe operation of a vehicle.” A lesser proof is required to show a person is “driving while ability impaired.” For this charge, it is enough to show that the person’s ability to drive safely was affected “to the slightest degree.”
In cases of drunk driving, Colorado has already established “presumptive” blood alcohol limits – above .05 BAC (for adults) to establish driving while impaired and .08 to establish driving under the influence. Up to now, no “presumptive limits” have been established for marijuana or any other drugs. Instead, the only question for jurors is whether the person’s ability to operate a vehicle was actually affected and if so, how much. No legal presumptions apply other than the basic presumption of innocence.
This could change soon.
In November 2000, Colorado voters approved Amendment 20, which allows the use of marijuana within the state for approved patients with written medical consent. Patients may possess up to two ounces of medical marijuana and, in some cases, more, provided that the prescribing doctor recommends it due to the patient’s specific medical needs. More recently, in November 2102, voters passed Colorado Amendment 64, which was signed into law on December 10, 2012. Under this amendment, the State of Colorado will not prosecute adults for possessing marijuana for personal recreational use provided that the amount is under one ounce and the marijuana is consumed within a private residence. In addition, private, noncommercial cultivation of marijuana is legal for up to six plants a year per person. Nothing in Amendment 20 or 64 allows Colorado residents to drive while impaired or under the influence of marijuana, any more than they could do so while impaired or under the influence of alcohol.
Because of the expected increase in marijuana use and based in part on a recent study that purportedly showed that 13 percent of Colorado traffic fatalities in 2011 were marijuana-related, a bill is pending that would create a new presumptive limit for blood THC (the active ingredient in marijuana) for purposes of driving laws. A copy of Senate Bill 12-117 can be found here.
Under the proposed legislation, a presumptive THC limit of five nanograms per milliliter will be established, and will allow a “permissible inference,” for the jury to conclude that the defendant was “under the influence” of drugs for purposes of the DUI statute. This is just one more hurdle for any DUI attorney in Denver or Colorado to get past.