There was an article in the Aspen Daily News yesterday on the proposed bill forTHC DUIs in Colorado. Unfortunately, the article was less than clear. One key element to the proposed legislation is that defendants with elevated levels of THC in their bloodstream would be allowed to argue that they were not impaired because they have built up a tolerance to the drug.
The new THC DUI bill, HB 13-1114, sets the level of active THC in the blood at 5 nanograms for every millimeter. The 5-nanogram threshold would not establish DUI per se; it merely gives rise to a “permissible inference” that the person was impaired. The result is that a defendant would be allowed a “permissible defense” that the jury should disregard the chemical test. For example, a person that smokes a lot of marijuana for medicinal or recreational purposes will nearly always have THC in their system. However, that does not necessarily mean they are stoned or unsafe to drive. In short, it would not be a slam dunk for the prosecutor if the defendant has 5 or more nanograms of THC in their bloodstream. This change from previous iterations of a THC DUI bill is a big deal. A copy of the proposed bill can be viewed here.
I emailed the reporter, Doroth Atkins, at the Aspen Daily News and she said that she was aware of the “permissible defense” in the proposed THC DUI bill, but that the editing process stripped out any mention of that aspect. Fair enough. While I understand the attraction to make things simple and easy, I disagree with the decision to simply ignore the “permissible defense” issue in the new THC DUI bill. Lesson here: reporters beware when you tread into writing about proposed legislation and the law.