Medical marijuana is Colorado’s most popular pain medicine, but it is also still marijuana, a longtime illegal recreational drug, and so the contours of its use and regulation are shifting fast in the state. Right now, for example, there is no official standard for measuring when someone is driving under the influence of pot. But a Colorado drug task force is weighing how to measure marijuana driving impairment and lawmakers are likely to address the question in the coming legislative session.
The Colorado Commission on Criminal and Juvenile Justice Drug Policy Task Force has voted to recommend that the sate adopt a standard of 5 nanograms of THC/mL whole blood. If you’re stopped by the police while driving and then found to have that level of THC or higher in your blood you will be considered impaired, if the law passes.
The legislature, of course, could ignore the recommendation or raise or lower the legal limit of impairment. Twelve states, in fact, consider any level of THC in the blood to be evidence of impairment.
THC is the active ingredient in marijuana.
Arapahoe County Sheriff Grayson Robinson is a member of the Task Force, and he voted for and supports the 5 nanogram limit.
“We’ve done our research,” he told The Colorado Independent, “and we believe that is a fair and reasonable level.”
Tom Raynes, executive director of the Colorado District Attorneys Council elaborated. He said by setting the limit at 5 nanograms, the Task Force tried to set the limit high enough that someone who has smoked a lot of marijuana but is not currently under the influence would be beneath the limit, while also setting it low enough to catch anyone who has recently consumed the drug.
He and Robinson and others we talked to in law enforcement said there will be no effort to target holders of medical marijuana licenses for prosecution.
“You have to have probable cause to stop a car in the first place,” Raynes said. “That doesn’t change.” Once a car has been pulled over, he said, the officer will still need additional cause to test someone for marijuana. Those causes might include smell, dilluted pupils or a driver who is slow to respond to questions. Often, he said, a roadside sobriety test would be administered to determine if there is a reason to ask for a blood test.
Aaron Smith, executive director of the National Cannabis Industry Association, says any arbitrary limit is inappropriate. “Measuring metabolytes is not the way to go,” he said. “You need to measure impairment.”
He suggested looking at someone’s pupils and administering a roadside sobriety test would be more appropriate that measuring THC levels. “Marijuana can remain in someone’s system for a long time, a month or longer in some cases,” he said. “They are looking for a solution to a problem that doesn’t exist,” he said.
Laura Kriho, spokesperson for the Cannabis Therapy Institute in Denver, says establishing a legal threshold for THC is akin to saying no one with a medical marijuana license can drive a car. “If you are a patient, it is in your blood all the time,” she said. “Many people who ingest marijuana say they never even get high, yet the law would say they are incapable of driving,” she said.
State Rep. Claire Levy, who is on the Task Force with Robinson, agreed with him that the group looked very carefully at the data and tried to pick a number that would protect the public while also not placing an undue burden on legal users. She said she plans to introduce the bill that will establish the 5 nanogram limit.
“We want to make enforcement and prosecution much more objective,” Robinson said. “I think we need a standard that measures intoxication, just as we have with alcohol,” he said. “People say each person is different, and that is true. They said that about the alcohol standard too, but today people understand and accept that limit.”
“This law will not be focused on medical marijuana users,” he said. “The same standards for pulling someone over for a DUI will be in effect for marijuana. Officers will only stop someone if they have probable cause to do so. This isn’t about marijuana. It’s about highway safety,” he said.
The idea that anyone would think law enforcement was targeting medical marijuana, he said, “is outrageous. We focus on driving behavior. We have no way of knowing who the driver is until we make contact with that driver. Those who consume drugs before driving are dangerous.”