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Colorado May Set Limits For Driving After Marijuana Use

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Colorado may set limits for driving after marijuana use

DENVER AND THE WEST

 

By John Ingold

The Denver Post

POSTED: 12/05/2010 01:00:00 AM MST

UPDATED: 12/05/2010 12:05:29 PM MST

 

 

 

As it stands now, a Michigan medical Marihuana Patient can be charged with both Driving with any presence of a controlled substance (any active amount of thc) and Driving While Impaired (the thc directly effects the persons ability to operate the vehicle in a safe manner). Currently in Michigan and in other Medical Marihuana states there is no threshold as what measurement equates to being impaired. It should be noted that a similar law does not exist for prescription medications.

 

This is a hot topic, and I posted this to reflect how one state is beginning to discuss this issue.

First, the any presence of a controlled substance is in direct conflict with the Michigan Medical Marihuana Act. Section 7 prohibits operating a motor vehicle while being under the influence and section 7 (e) trumps any statutes or ordinances that are in conflict with the act itself. I know of several District Courts as well as Circuit Courts that have ruled that the any presence statute either does not and should not apply to patients, but instead if a crime has been committed it must be established by the elements associated with being impaired and driving. While at the same time I picked a jury last Friday, for a client patient of mine who allegedly had 8 nanagrams of THC, in his system and is currently being charged with both any presence and impaired driving. This case is unique and a different venue may not bring about the same liabilities, but the fact is that under current Michigan Law a person can still be charged with both.

 

I patently disagree with the conclusions of a 5 nanograms of thc as being the threshold for impairment. Many federal studies have suggested the number be much higher, like closer to 30 nanograms.

What’s more is that the expert in the case mentioned above has said that the 8 nanograms has absolutely no psychotropic effect on a driver. Also mentioned by those who oppose the Colorado proposals argue correctly that the every patient has a different level of tolerance as well as a different effect from thc. Right now, a person could have 1 nanogram and be subject to 2 different misdemeanor convictions. While I applaud Colorado for starting the discussion of what to do, and how to address the driving issue, I think a more reasonable approach is necessary. First the any presence crime must be found to be null and void in light of the MMMA. And if any legislature is going to address what constitutes impairment, a more realistic standard, one based in science, will be needed to determine what impairment really means.

 

Colorado could soon establish tough new measures to crack down on those who toke and drive.

Under a proposal expected to be introduced at the Capitol early next year, the state would create a threshold for the amount of THC — the psychoactive component of marijuana — drivers could have in their blood. Anyone who is stopped and tests above that limit would be considered to be driving while stoned.

Drivers suspected of being impaired by marijuana or other drugs already have to submit to a blood test or face a suspension of their licenses. But the proposed law would set a standard at which the law would presume a driver impaired by marijuana.

"It will bring some clarity to the issue of whether you are or are not impaired under the influence of marijuana," said state Rep. Claire Levy, a Boulder Democrat who is likely to be one of the proposal's sponsors in the legislature. ". . . There isn't a bright line right now."

State law already bans driving while under the influence of drugs, but law enforcement officials say the law is vague on how they should establish a suspect is high. That — plus the concern that the state's medical-marijuana explosion could lead to more impaired driving — led members of a subgroup of the Colorado Commission on Criminal and Juvenile Justice to examine the issue, said Arapahoe County Sheriff Grayson Robinson, a commission member.

"It became clear to us that marijuana is an area that had not been given due consideration," he said.

Gauging impairment

The proposal, which the full commission endorsed last month, sets the THC threshold at 5 nanograms per milliliter of blood. Robinson said research shows that level is indicative of impairment. Anyone over the threshold would be presumed to be impaired, in the same way any driver with a blood-alcohol content over 0.08 percent is considered to be too drunk to drive.

Sean McAllister, a lawyer who serves on the commission's drug policy subgroup, said the research doesn't take into account the tolerance level of frequent users. He said he worries that the proposal could unfairly affect medical-marijuana patients, who may be able to have higher THC levels without impairment.

But, he said, he agrees something needs to be done, and he said he advises patients to wait at least four hours after using marijuana before driving.

"No responsible advocate of legalization believes that people should be driving high," McAllister said.

David Kaplan, the state's former top public defender, said he shares concerns over the 5-nanogram level and whether "there was a strong enough correlation on what impact it has on your driving behavior."

Still, Kaplan, who is the vice chairman of the commission, said he supports the process by which the commission came to its proposal.

Other states set limits

If the proposal is adopted, Colorado would not be the first state to set a maximum THC limit for drivers. A number of states have zero-tolerance policies for drivers with THC in their blood. A handful of states, including Pennsylvania, have a 5-nanogram limit for marijuana or its metabolites, according to the National Organization for the Reform of Marijuana Laws, or NORML.

Marijuana advocates and law enforcement officials often clash over how big of a problem stoned driving is.

A report last month from the National Highway Traffic and Safety Administration found that at least one in five drivers who were killed in car crashes in 2009 subsequently tested positive for drugs. THC or some other form of marijuana showed up in 1,085 of the 21,798 drivers killed. In Colorado, THC or some other form of marijuana showed up in 26 of the 312 drivers killed that year.

The commission's proposal will likely be turned into a draft bill and introduced in the legislature during the early part of next year's session, which starts in January. Because it has the backing of the commission, its sponsors are optimistic it will receive a warm reception.

State Rep. Bob Gardner, a Colorado Springs Republican who is the chairman of the House Judiciary Committee, which would likely be first to vote on the proposal, agreed.

"I think there's a lot of support for that idea," he said.

John Ingold: 303-954-1068 or jingold@denverpost.com

 

 

 

Michael A. Komorn

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Correct me if I am wrong,but I was under the impression that the Michigan Supreme Court revamped the cannabinoids that show in your system as not being a controlled substance? I believe there is reference to another driving case where the driver had 10ng/ml(not sure if that is the correct reference for concentration, but the number was 10 nanograms) I believe that case may still be going up the ladder. Wouldn't the supreme court decision squash all of these petty driving cases? Is the key word "active" THC, because once the THC is metabolized is what I am refering to about the Supreme Court(I think?) I am very curious about THC testing procedures and how they establish that you are currently "impaired" just because of a higher level, on another note, in reference to the statistics of deadly crashes, do they prove impairment due to marijuana?, what other substances were in these drivers?, road conditions, yada yada yada etc. I think you see where I am going with my problem with statistics!

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I agree about the statistics, they can be very misleading. For example, how many of the 1,085 drivers killed that tested positive for THC also had elevated blood alcohol levels? I remember having to sit through a safe driving class once that had a section on "stoned driving" and I asked that question, "what percentage of the "stoned drivers" involved in accidents are also drunk?"...they had no answer, it was like "stoned driving" was much worse and trumped "drunk driving" to the point that once they found THC they went into the "drug" catagory and presence of elevated BAC was irrelevant.

 

I'm certainly not advocating driving while impared by anything, but I think drunk drivers are much more of a threat than stoned drivers.

 

Also, I've never been tested, and I don't have a good handle on how the levels rise and fall in your blood but I'm pretty certain I've been over that 5 nanogram level most of my adult life. 5 nanograms seems like a pretty miniscule amount...especially when you consider the tolerance level of long-time and/or heavy users.

 

What's the worst that can happen if you refuse the blood test? If you pass a field sobriety test, they can't demand you take a blood test, correct? Can LEO just take one look at you and demand a blood test, or must they have some grounds to go on? Are they required to give you a field sobriety test prior to requesting a blood test? Where do you go for the blood test, the hospital?

 

I like the idea of establishing a baseline for imparement (so at least we know where we stand) but 5 nanograms seems like WAY too little.

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How can they measure the amount of nanograms of thc? What if a patient is heavy set... wont the thc stick to them more then lets say a skinnier person?

 

Also when its measured, whos to tell how long ago the person smoked? The way i always looked at it was this way.

 

If im driving stoned, and i disobey a traffic law infront of leo i will get pulled over. If they smell MJ or think im under the influence, they would check to see if im impaired? similar to drunken driving?

 

But if im driving correct, and i get pulled over for lets say a broken tail light, and theres no smell in the car, how can he just assume im stoned? Without any paraphernalia or mmj visible or in the car?

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I'm certainly not advocating driving while impared by anything, but I think drunk drivers are much more of a threat than stoned drivers.

 

I agree with you, ECCG, but we need to also consider that young drivers (the most accident prone, by far) become embolden under the influence of alcohol and "getting high" while intoxicated isn't going to reduce the likelihood of an accident when getting behind the wheel of an automobile, I think it's safe to assume. So drunk drivers are more of a threat than "stoned" drivers, but teenage drunk and stoned drivers are a pretty scary thought, eh? Isn't that right, Moms?

 

Driving while impaired or reckless driving may be applied to texting (multitasking), driving while applying makeup or watching videos, and so on. Just the dropping of a lit cigarette butt can cause multi-car crashes and death on the interstate. You can't legislate stupid.

 

Distraction is probably the biggest cause of accidents. I know for me, driving during the first half hour of ingesting a healthy dose of cannabis is undesirable because it requires work to mediate concentration - the effects of the THC fuel creativity and imagination which you could say is the far side of your world of consciousness, the polar opposite of which would be those areas of the brain responsible for such things as mathematics - and driving.

 

But I'm certainly able to still drive safely in a heighten state of controlled THC consciousness because I am learned.

 

Andrew Weil described this learned and naive distinction back in the sixties and seventies with regards to driving under the influence, as it were, of cannabis.

 

Something you hear often in political forum discussions from conservatives who tried cannabis in college or whatever, is the claim that all cannabis ever did for them was make them stupid and so now all lefties that smoke "pot" are stupid, and so on. They see medical cannabis as a Trojan Horse and it's proponents as barbarians at the gates.

 

They never treated a condition with cannabis and so never accumulated enough cannabinoids over a period of time needed to fully adapt to the different therapeutic levels of consciousness that THC presents or has to offer. And therein adding to the perplexity involved in distinguishing between the many variables inherent in it's design.

 

Testing response and coordination skills such as those used in driving will produce different results when administered to a cannabis naive subject compared to a cannabis learned subject. Effects of high levels of THC on the cannabis naive subject is likely to produce some anxiety and confusion that the learned subject is already accustomed to and has learned to function with. So what levels of impairment might be distinguishable at various levels of measurable THC in the system at a specific time after ingestion is still an ambiguous assumption because of such variables as naive and learned and also the particular cannabis plant characteristics involved as well as the health or mental state of the subject to begin with.

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Correct me if I am wrong,but I was under the impression that the Michigan Supreme Court revamped the cannabinoids that show in your system as not being a controlled substance? I believe there is reference to another driving case where the driver had 10ng/ml(not sure if that is the correct reference for concentration, but the number was 10 nanograms) I believe that case may still be going up the ladder. Wouldn't the supreme court decision squash all of these petty driving cases? Is the key word "active" THC, because once the THC is metabolized is what I am refering to about the Supreme Court(I think?) I am very curious about THC testing procedures and how they establish that you are currently "impaired" just because of a higher level, on another note, in reference to the statistics of deadly crashes, do they prove impairment due to marijuana?, what other substances were in these drivers?, road conditions, yada yada yada etc. I think you see where I am going with my problem with statistics!

yes you are correct the Michigan Sc just this year over turned a conviction.... basically he was found to have it in his system despite the fact all the cops on scene said he was sober.... having in your system no longer means under the influence or so says the big courts

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Statistics are a lot like paint.....you can use them to show whatever picture you want to.

 

Out of the 1,085 killed how many were wearing jeans at the time? Lets say 500. Ok so 500 were wearing jeans at the time, but does this fact show that wearing jeans was a factor in the death of this 500. No it does not.

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