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Marijuana DUIs & What We Can Learn from Colorado

Colorado was the first state in the U.S. to legalize marijuana for recreational use, and although driving while stoned was an issue prior to Amendment 64, law enforcement saw a greater need after the law's passage to enact legislation that would prevent people from driving under the influence of marijuana.

Enter House Bill 1114 – a bill signed into law that makes it illegal for drivers to have five nanograms of THC in their bloodstream. Attempts to put a limit on marijuana in the bloodstream have failed in the past, but experts speculate that the legalization of recreational marijuana made a measure like this necessary.

In California, it is illegal to drive under the influence of any drug, intoxicating liquor, or a combination of both. California law does not specify a threshold at which point drugs in your bloodstream is illegal (such as the 5 nanogram threshold in Colorado). Anyone caught with a drug, such as marijuana, in their bloodstream while driving can be arrested and charged with DUI.

Although a limit on THC concentration is a step in the right direction, many experts still worry that this threshold is ambiguous. Unlike alcohol in the bloodstream, marijuana concentration is not affected by a person's:

  • Body type
  • Weight
  • How many hits they took

Marijuana's varying effects on people make it difficult to say at what concentration a driver is considered impaired.

The problem with THC concentration limits is that there is no blood THC level that consistently correlates with impairment, and consequently, blood tests are unreliable at best to determine who is driving under the influence.

One positive trait about Colorado's 5 nanogram limit is that it is not a per se law. Per se laws presume someone's guilt based on chemical (breath, blood, or urine) test evidence. Anyone arrested for marijuana DUI in Colorado, for example, is not presumed to be guilty and has the right to contest the accusation.

California's cannabis laws are effect-based, which means that rather than presuming guilt – and unlike Colorado's permissive inference laws, a DUI charge can only be substantiated if evidence shows that marijuana was recently ingested. In many states, drivers can be charged with drugged driving weeks after they ingested marijuana because THC stays in the bloodstream for so long.

The White House has recommended that all states pass zero tolerance, per se marijuana laws. If every state were to take that suggestion, any trace of cannabis would constitute a DUI charge, and all those arrested would be presumed guilty. Colorado seems to be moving in the right direction with their marijuana laws, because not all marijuana use has the same effect.