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Colorado Cannabis DUI Law

Marijuana DUI-D

Driving under the influence of marijuana arrests are on the rise. Adults in Colorado may legally possess small amounts of cannabis products. As a result more people are driving with THC in their blood.   Unlike other medicines or recreational drugs, marijuana metabolites can stay in your body long after use causing a DUI-Drug arrest. This fact combined with the prejudice of many police officers and prosecutors against marijuana can result in baseless prosecutions for "driving under the influence of drugs" (DUID).

Cannabis DUID Levels

One problem with the way marijuana DUIs are handled is that there exists a lack of competent science how marijuana may impair driving. In order to successfully defend in a DUI case involving marijuana, the focus must be on countering prejudices with science fact. The Colorado Legislature has established a blood level at which marijuana impairment may be "inferred."  That means that a jury may assume that a person with more than 5ng/ml of marijuana is intoxicated. The "permissible inference" of intoxication at 5ng/ml functions as a "legal limit" that prosecutors, judges and jurors use to determine guilt. However, the AAA Foundation for Traffic Safety and other authoritative sources have concluded that established "Per Se" marijuana intoxication levels are arbitrary and not based upon science! The AAA study was released in May 2016 "An Evaluation of Data from Drivers Arrested for Driving Under the Influence in Relation to Per Se Limits for Cannabis." The study concluded: "All of the candidate THC concentration thresholds examined would have misclassified a substantial number of driver as impaired who did not demonstrate impairment....Based on this analysis, a quantitative threshold for per se laws for THC following cannabis use cannot be scientifically supported."

A successful Marijuana DUI defense emphasises the individual. Most experience marijuana users, whether medical or recreational users are not "intoxicated" at the low presumptive levels set forth by Colorado. Rather, in the absence of tests scientifically correlating blood cannabinoid levels to driving ability, the emphasis must be on the individual driver's ability to safely operate his or her vehicle."

Cannabis and SFSTs

The National Highway Traffic Safety Administration, (NHTSA), has developed a set of Standard Field Sobriety Tests that police administer to gather evidence to use against drivers in DUI trials. In drug cases these tests are supplemented by Drug Recognition Examinations which were created by the International Association of Chiefs of Police. The tests are supposedly validated to show intoxication by alcohol and common drugs. Prosecutors in North America rely heavily on these tests as proof of inability to drive. Recent studies of these tests on drivers suspected of using cannabis have come up with Recent scientific studies, however, have shown contradictory results when applied to suspected cannabis users.

In Validity of the Standardized Field Sobriety Test, Beirness and Porath-Waller, Traffic Injury Prevention (2014), Canadian researchers examined over two thousand DUI Drug investigations. Their report concluded that of three SFSTs used by Drug Recognition Experts to detect marijuana intoxication, only the "one leg stand" appeared to provide statistically reliable evidence of intoxication. Nonetheless they went on, this result was contradictory in that there was no evidence that the Walk and Turn, also a divided attention test, reliably detected marijuana intoxication. Id.at p130. The bottom line seems to be that current supposed objective methods of detecting and measuring marijuana intoxication are little better than subjective observations of intoxication.

Marijuana and Probation

Many clients who come to us charged with DUID were taking prescription medicines for serious illnesses when stopped by the police. These seriously ill individuals are worried what will happen if they are placed on probation as a result of a DUI conviction. Previously, persons on probation were denied access to medical marijuana even though the Colorado Constitution recognized the legitimate medicinal characteristics of cannabis.  After May 8, 2015 Colorado State courts may no longer discriminate against persons with a valid medical marijuana license without cause. House Bill 15-1267 states in relevant part "...the possession or use of medical marijuana, as authorized pursuant to section 14 of article XVIII of the state constitution, shall not be considered another offense such that its use constitutes a violation of the terms of probation." A sentencing court, or probation officer may not prohibit the use of medical marijuana unless there are specific determination based upon a substance abuse evaluation that such prohibition is "necessary and appropriate." One of the important jobs that we do as DUI attorneys is to present evidence that will insure continued availability of our client's badly needed medicines if a conviction is unavoidable.

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