You might believe that days after medicating, medical marijuana patients would be able to drive a vehicle without fear of a DUI. However, if House Bill 1261 — which sets a limit of 5 nanograms of THC per milliliter of blood — passes in both chambers of the state Legislature, patients could face charges if pulled over and an officer suspects impairment.
Unlike alcohol testing, which can be measured using a Breathalyzer, the only way to measure THC levels is through a blood draw.
"A person can refuse a blood test," says bill co-sponsor Mark Waller, R-Colorado Springs. "Constitutionally, they don't have to take that test if they don't want to. The remedy in that circumstance is the suspension of a driver's license — not the right to drive, but the privilege to drive."
Rep. Claire Levy, D-Boulder, the bill's other sponsor, says she's just trying to get ahead of the ball: "As part of legalizing marijuana use and possession, we have to make sure we have the safeguard in place. It's part of bringing marijuana use into a court-regulated environment."
However, at the suggested level, the bill unfairly targets MMJ-card carriers, says Audrey Hatfield, president of the Colorado Springs-based Coloradans 4 Cannabis Patient Rights.
"Marijuana stays in the system for 30 to 45 days," Hatfield says. "Certainly people shouldn't be out driving around if they just finished smoking a joint, but at the limit amount that they're trying to go for — I think anybody could test for over 5 nanograms because of how it stays in your system."
Shortly before the House passed the bill in March, Levy moved to change the limit to 8 nanograms. The amendment was killed after vehement opposition from Waller and Colorado Springs Rep. Bob Gardner, who went so far as to change the bill's title to include the original limit, in an attempt to make it harder to change later.
"When we had committee testimony of the bill, the marijuana patient community said they would feel more comfortable with that level because the scientific research wasn't based on users of high-potency medical marijuana," Levy says of her attempt. "They felt it was geared toward recreational use."
Waller explains his opposition to an increased limit this way: "That's what experts tell us is the right number. We went to the Criminal Justice Committee, which is made up of experts, including attorneys, the state public defender, DAs and members of the cabinet," he says. "After evidence-based research, the drug policy task force came up with 5 nanograms as the right level."
Hatfield and others opposed to the bill don't think enough research has been done on different types of marijuana treatment, such as ointments, joints and edibles, and factors such as the frequency of ingestion, weight and age.
"Because it's fat-soluble, if someone overweight gets stopped and the last time they medicated was a week before, they're probably going to test over 5 nanograms," says Hatfield, adding she fears that the limit may drive many MMJ patients back to their original prescription drugs.
In response to a question about how many accidents have been caused by MMJ patients, Waller cites a toxicologist who testified to three vehicular deaths involving medical marijuana. He says he'd be open to similar legislation limiting driving while under the influence of prescription drugs if similar numbers appear.
Levy, for her part, does not name any specific instances of vehicle accidents involving medical marijuana. "What I'm going on," she says, "is just the general reports from law enforcement that they're seeing an increase in people driving under the influence."
Ultimately, says Hatfield, the bill doesn't stand up under its own weight.
"The evidence that's been presented isn't to my standards," she says. "They need to do research in Colorado, related to Colorado, rather than rush into something."