Mar 312011
Authors: Jesse Benn

Imagine a medical marijuana patient spills their coffee on a morning commute and swerves, giving a police officer probable cause to pull them over for intoxicated driving. Under existing law the driver could take a sobriety test, pass, and not risk being charged with a DUI –– if HB 1261 is passed this could all change.

Casey Villa Jr., owner of Generations Natural Medicine, a dispensary in Garden City, Colo., explained how the scenario might play out if the bill is passed into law.
“Now a cop can pull them over, make them take a forced blood test and if they are over this random limit they get a DUI, period,” Villa said.

HB 1261 seeks to limit the amount of THC in a driver’s bloodstream before they are guilty of a DUI per se. The bill has made its way through Colorado’s House and is now waiting on action from the Senate.

Both representatives from Fort Collins, Randy Fischer and John Kefalas, voted for the bill. Kefalas’ office would not comment on his vote, but Fischer took some time to explain his to the Collegian.

“Pretty simple, we have limits on blood alcohol, so it makes sense to have limits on other substances that have potential for impairment,” he said. “So having some reasonable legislation for people driving under the influence of medical marijuana made sense.”

He admitted that the bill does not address ‘other substances that have potential for impairment’ –– like many prescription pain medications that marijuana is used as an alternative to, however.

For Director Scott Greene and Executive Director Brian Vicente of Mile High NORML and Sensible Colorado, the bill comes with a myriad of problems for medical marijuana patients.

“It’s a horrible bill that needs to be reworked completely,” Greene said. “Let’s set limits so patients don’t wake up in the morning passed (the five nanogram limit) the accepted level already.”

Vicente voiced concerns as well, taking specific issue with the ‘per se’ aspect of the bill.

This makes five nanograms the same as the .08 blood alcohol content limit for drivers –– if a driver’s BAC is .08 they are guilty of a DUI per se, regardless of their ability to drive and pass a sobriety test –– the same would be true for drivers with THC levels above the five nanogram limit.

“I think what would make sense is to allow a rebuttable position where patients would be allowed in court to show they were over five nanograms but not impaired,”
Vicente said,“basically not making a zero tolerance policy where five nanograms means guilty.”

Vicente’s suggestion lines up with existing laws for prescription medications. Rob Corry, a medical marijuana attorney, pointed this out in a letter to legislators:

“Drivers using psychoactive opiates such as Oxycontin, Percocet, Methadone, Fentanyl, etc. are able to legally use their doctor-ordered medications while driving if they can compensate for any effects of the medicine such that they are not impaired,” Corry wrote in the letter.

“Many medical marijuana patients, long-term chronic users, can similarly compensate for any effects of marijuana.”

Even the bills co-sponsor Claire Levy put the five nanogram number in question, introducing a last-minute failed amendment that attempted to raise the limit to eight nanograms. Although her amendment failed, Levy still voted yes on the measure.

Levy did not return the Collegian’s e-mails or phone calls.

HB 1261 still has to make its way through the Senate and then pass the Governor’s desk, but CSU’s resident expert on state politics, professor John Straayer, put odds on the bill’s eventual passage.

“The bill has both a Republican and Democratic sponsor in both chambers –– Mark Waller ® and Claire Levy (D) in the House and Steve King ® and Betty Boyd (D) in the Senate –– and that will increase the odds of passage,” he said in an e-mail to the Collegian. “Having said that, one never knows for sure what curious twists and turns may occur.”

Gov. Hickenlooper’s office said it was premature to take a position, so it’s unclear what the bill’s fate would be if it makes it to his desk. But with bipartisan support, the bill will be hard for the governor to veto.

Greene asked that students who want to get involved call their state senators and representatives and eventually the governor.

In the meantime, Vicente’s advice for how to avoid trouble before and after the bill’s passage is simply:
“Don’t smoke marijuana and drive.”

Staff writer Jesse Benn can be reached at

Five nanograms of THC?

  • Equals five nanograms per milliliter of blood
  • Marijuana stays in the bloodstream 12-24 hours after use
  • Only way to measure level per the bill is through a blood test
  • If passed, it will make any driver over five nanograms guilty of a DUI
 Posted by at 4:46 pm

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