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Linda Chalat
Linda Chalat
Attorney • (866) 735-1102 Ext 366

Too High to Drive?

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We are two months into the legislative session and there is still tussling over a bill to create strict new standards in Colorado for driving under the influence of drugs including marijuana. Senate Bill 117 has been sent to the Senate Appropriations Committee, which decides whether a bill is worth its cost. In many instances, this is a perfunctory step, but SB 117 carries with it some significant costs for an already over-stretched judicial budget. The state Public Defender's Office estimates the bill will cost the office nearly $600,000 more per year to defend drugged-driving cases.

The bill is needed as SB 117 seeks to define what it means to be too high to drive in Colorado. If passed, it will be illegal to drive with any amount of a Schedule I controlled substance — such as heroin or LSD — in the driver's blood. And, to the disappointment of medical marijuana proponents, it would do the same for an amount of THC — the psychoactive chemical in marijuana — above 5 nanograms per milliliter of blood. The language of the bill creates a "permissible inference" of impairment, lowering the evidentiary demands for prosecutors, in cases where people are caught with any amount of a Schedule II controlled substance in their blood. Examples of Schedule II substances include cocaine and several prescription drugs.

Opponents of the bill, especially medical-marijuana advocates, contend the science of impairment for marijuana is far from conclusive and say the bill will result in sober drivers being convicted. But those supporting the bill argue that most research shows the large majority of people would be impaired at 5 nanograms of THC. They say the bill is needed to stem a tide of drugged driving in Colorado.

The state's forensic toxicologist testified that the number of tests from drugged drivers coming through the state's lab is increasing. In 2009, the state tested 8,625 samples from suspected impaired drivers, according to information provided to lawmakers. Most were tested for alcohol, but there were 791 samples that tested positive for THC, including 222 with more than 5 nanograms. In 2011, the state tested 10,393 samples total, with 2,030 positive for THC. There were 574 with more than 5 nanograms.

The Public Defender's Office doesn't believe the bill will create an increased number of drugged-driving cases. Rather, it argues that the bill would require its attorneys to spend more time preparing a client's defense and more money retesting blood samples and hiring expert witnesses.