The surge of medical marijuana use in Colorado has started another debate in the state Legislature: What constitutes driving while high?
Lawmakers are considering setting a DUI blood-content threshold for marijuana that would make Colorado one of three states with such a provision in statute – and one of the most liberal, according to Rep. Claire Levy, one of the bill’s sponsors.
Under the proposal, drivers who test positive for 5 nanograms or more of THC, the psychoactive ingredient in marijuana, would be considered too impaired to drive if the substance is present in their blood at the time they’re pulled over or within two hours.
Levy, a Democrat from Boulder, said she’s gotten resistance from medical marijuana advocates who fear it will restrict patients from using the drug.
“What I’ve tried to assure the patient advocates is that we’re not talking about sobriety checkpoints, we’re not talking about dragnets and massive stops,” she said. “They’re not going to be stopped if they’re driving appropriately.”
While it’s already illegal to drive while impaired by drugs, states have taken different approaches to the issue. Twelve states, including Arizona, Michigan, Illinois, Iowa, and Rhode Island, have a zero-tolerance policy for driving with any presence of an illegal substance, said Anne Teigen, policy specialist at the National Conference of State Legislatures. Minnesota has the same policy but exempts marijuana.
Nevada, which is among the 16 states that allow medical marijuana, and Ohio and have a 2 nanogram THC limit for driving. Pennsylvania has a 5 nanogram limit, but that’s a state Health Department guideline, which can be introduced in driving violation cases, Teigen said.
Don Christensen, the executive director of the County Sheriffs of Colorado, which supports the 5 nanogram THC blood-content benchmark, said he thinks it’s a fair way for law enforcement and the public to know how much marijuana you can consume while legally being able to drive – just as there’s a limit with alcohol.
“I think it’s fair to tell them the rules to be played by,” he said.
Levy said the amount of marijuana needed to reach the 5 nanogram threshold is hard to quantify, but from what she’s been told, “You would have to have smoked some very potent marijuana and immediately be stopped and have your blood tested in order to achieve that 5-nanogram level.”
According to the National Highway Traffic Safety Administration, peak THC concentrations are present during the act of smoking and they generally fall to less than 5 nanograms within three hours.
Pot activists, including the National Organization for the Reform of Marijuana Laws, say they hope marijuana DUIs are not based solely on the amount of the drug that is found in someone’s system, but rather on the totality of the case, such as how the person was driving and other observations an officer makes.
They argue that medical users of the drug may have higher tolerance levels which would allow them to drive or still have trace levels of THC long after they’ve smoked the drug. Some also worry that medical users may be unfairly targeted.
“My only concern is that, because medical marijuana is controversial, that we’re entering a new phase of not racial profiling but medical profiling,” said Sean McAllister, an attorney at Denver’s Cannabis Law Center. McAllister was on a state panel that recommended the 5-nanogram standard, which he said is a fair judge of impairment for most users.
Not all marijuana advocates agree.
“We’re concerned the nanogram limit is too low because most medical marijuana patients are going to have higher levels in their bloodstream because of their continued use of medical cannabis,” said Laura Kriho, a spokeswoman with the Cannabis Therapy Institute in Colorado.
Rep. Mark Waller, a Republican who is sponsoring House Bill 1261 with Rep. Levy, said their proposal is meant to set a THC-blood level at which someone is presumed to be too impaired to drive.
“It’s a rebuttable presumption, though,” said Waller, adding that drivers won’t be automatically guilty of a DUI and will still get a chance to argue their case.
The bill is yet to come before a committee for a hearing, but Levy said she’s already getting a lot of comments from medical marijuana users.
“I’m getting a lot of pushback, a lot of concern that this will hinder the ability of medical marijuana patients to make use of their medicine,” Levy said. She said the bill is about safety, not targeting people who use pot for medical purposes.
“I’m very supportive of medicinal use of marijuana,” Levy said. “You just can’t allow people to be driving when they’re high.”