On Sixth Attempt in Past three Years, the Colorado Legislature Passes Presumptive Limit Bill for Marijuana.
The Denver Post reports that, after “a torturous journey” through the legislature, the Colorado Senate today passed a version of the so-called “too-high-to-drive” bill, House Bill 13-1325, which sets a legal inference of active THC (the psychoactive element in marijuana) at .05 nanograms per milliliter of blood. At this point, the bill needs only Governor Hickenlooper’s signature to become law – an event almost certain to occur since the governor has been campaigning hard for the measure.
The bill creates a “permissive inference” in the courtroom that anyone driving a vehicle with five or more nanograms per milliliter of blood is guilty of driving under the influence of drugs. Contrary to what the Post reports, and contrary to representations made by many of its proponents, this law is more than a “mere nudge” to juries. It allows the prosecution to legally obtain a conviction for driving under the influence upon proof that the defendant, at the time of driving or within a reasonable time after, had the THC level in question regardless of any other evidence in the case. While it is true that juries (or judges in the case of a trial to the court) are not required to find all defendants guilty in such cases, it more or less shifts the burden of proof to defendants to prove otherwise. As such, the bill eliminates the prosecution’s burden of proof in such cases and transfers it to defendants, who must be prepared to present convincing evidence to persuade the finders of fact that they were not driving under the influence despite the THC level.
Opponents of the Bill also complained that it would unfairly punish medical marijuana patients, who may be expected to have high THC levels many hours or even days after last using marijuana. Such individuals may now have no real choice other than to retain experts to explain to juries how and why the THC levels are misleading in their cases and even then, juries are not bound to accept such testimony.