On January 31, 2012, Colorado Senator Steve King introduced Senate Bill 12-117 into the state senate, which serves to revive a piece of legislation killed by the exact same senate less than a year ago. The bill proposes expanding the DUI per se definition to include drugs, such as marijuana and other Schedule I controlled substances as listed under C.R.S. § 18-18-203. Currently, in order for a person to be convicted of driving under the influence of drugs or alcohol the prosecution must prove beyond a reasonable doubt that the individual consumed drugs or alcohol, which “affect[ed] the person to a degree that the person [was] 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.” C.R.S. § 42-4-1301(f).
Currently, in prosecutions for driving under the influence of alcohol, the prosecutor is entitled, by statute, to presume that a person was under the influence of alcohol when the person’s chemical test for blood alcohol content (BAC) produces a result of .08 or more. Essentially, this presumption makes a prosecutor’s job easier by allowing the prosecutor to present the BAC result as a clear and concise indicator that the accused was under the influence of alcohol. Additionally, when a person’s BAC is at or above the “per se limit” of .08, the prosecutor may charge the person with the separate charge of “DUI per se,” which carries additional civil sanctions assessed and imposed by the Department of Revenue.
Unlike in prosecutions for driving under the influence of alcohol, a prosecutor may not currently presume that a person is under the influence of drugs simply based on the results of a chemical test. Therefore, a prosecutor must bring forth other bits of evidence to prove the accused was substantially incapable of exercising clear judgment, sufficient physical control, or due care in operating a vehicle. On the flip side, marijuana users, even ones with medical marijuana licenses, can currently be charged with DUI if they have any amount of marijuana in their system while driving. If Senate Bill 12-117 were enacted into law, a prosecutor would be entitled to presume that someone is under the influence of drugs if at least one of the following is true:
- a milliliter of a person’s blood contains five nanograms or more of delta 9-tetrahydrocannabinol (more commonly known as “THC”); or
- a person’s blood, urine, or saliva contains ANY amount of a Schedule I controlled substance other than THC.
Similar to how evidence of BAC operates in a prosecution for driving under the influence of alcohol, the chemical tests for THC or other Schedule I controlled substance will operate to make the prosecution’s job easier.
This isn’t necessarily all bad. With respect to the THC per se limit of five nanograms, one potential positive is that prosecutors might hesitate before charging medical marijuana users with DUI if only THC is present in their blood, and the amount is below the per se limit of five nanograms. However, even if the legislation passes, medical marijuana users will still be wise to refrain from driving after using because the legislation does not prevent the prosecutor from charging someone who is below the per se limit, and there is no accurate way of gauging whether the THC in one’s system exceeds the per se limit without conducting a blood test.