In 2012, Colorado voters passed Amendment 64. This Amendment grants the right to use recreational marijuana in the state. As a result, it is now legal to possess up to one ounce of marijuana and consume marijuana in a non-public setting. The Colorado legislature spent part of the 2013 session creating laws on how to legally purchase and sell legal amounts of marijuana.*
As far as many lawmakers were concerned, creating laws for the legal transfer of marijuana between parties was just one of the public issues that Amendment 64 created. Just like other intoxicating substances, many lawmakers are concerned how the legalization of marijuana will increase the number of stoned drivers on our streets and highways.
For the last few years the Legislature has debated the need of a per se law for THC in motor vehicle drivers. In 2013 the Legislature reached a consensus and passed a bill to create a permissible inference that a person is under the influence if he has five nanograms of THC in his blood system within a reasonable time of driving. Governor John Hickenlooper recently signed the bill into law, amending the DUI/DUID statute. Washington State has recently adopted the same THC standard.
Most marijuana advocates oppose the new law, saying the five nanogram limit is too low. These advocates maintain that marijuana users, especially frequent users such as medical marijuana patients, maintain higher THC levels for longer periods of time, but are not impaired.
To address this concern, the Legislature wrote the law to only allow a “permissible inference” not a “presumption.” This allows those accused of driving with a THC level above five nanograms to present evidence to show they were not physically or mentally impaired to safely operate a motor vehicle. In essence, overcoming the permissive inference with this additional exculpatory evidence. This approach will be critical in winning cases where the THC level is above five nanograms.
Emboldened by the new law, law enforcement officers will likely begin targeting drivers who use marijuana. Upon contact, law enforcement officers will likely be on the lookout for drivers who smell of burnt marijuana. With this bit of evidence, expect an officer to request a sobriety test. Know these physical tests are voluntary and not required by law to be performed. Expect officers to use these tests to build their case against you. If arrested, expect the officer to request a blood test pursuant to the Express Consent Law. At this time there is no Express Consent revocation for THC, however, if you fail to give a blood test, your refusal can cause you to lose your privilege to drive in the State of Colorado for one year.
If you are accused of exceeding the legal limit for THC, it is important to contact an experienced criminal defense attorney. An attorney can review your case and help you achieve the most favorable outcome based on your specific facts.
* It is important to know that the Federal Government still considers marijuana an illegal substance. It is not clear if the U. S. Attorney’s Office will enforce the federal law in the State of Colorado.
