Nelson Harvey
Aspen Times Weekly
Aspen, CO Colorado

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December 12, 2012
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Aspen Times Weekly cover story: So, pot is legal? Kinda ...

ASPEN - It feels strange to tell Sheriff Joe DiSalvo that I smoked a bit of pot in high school, almost like admitting impure thoughts to a priest. And yet, as I sit talking with Pitkin County's top cop in his Aspen office, it dawns on me that DiSalvo is hardly offended or surprised.

The recent passage of Amendment 64 by a whopping 75 percent of Pitkin County voters (and nearly 55 percent of voters statewide) made possession of an ounce or less - and cultivation of as many as six marijuana plants - legal in Colorado.

For DiSalvo, the vote was the final step in pot's long, slow transition from a police matter to what he calls a "lifestyle choice."

And lately, DiSalvo has been fond of pointing out that enforcement of a particular "lifestyle" is not his department.

On Monday, Colorado Gov. John Hickenlooper signed Amendment 64 into law. Yet, even before that, DiSalvo had said after the vote, "I think now it would be pointless to arrest someone for a half ounce of weed."

As Coloradans wait to hear whether the federal government will let the amendment stand (marijuana remains illegal under federal law), and as state legislators gear up to make rules governing the sale of recreational marijuana next year, law enforcement officials in Pitkin County are recalibrating their approach to the drug, as well.

Their focus, according to interviews with DiSalvo and Aspen Police Chief Richard Pryor, will shift from private consumption to the public sphere. Smoking in public, for instance, remains illegal, a fact that Pryor believes might surprise some eager users.

"If people start wandering the streets of Aspen and smoking, I suspect our initial contact may be to educate people about what Amendment 64 actually says," he said.

And stoned driving is another area where police will continue to crack down.

"This is about personal choice, but when you take it out on the road, it's not just personal anymore," DiSalvo said.

In 2011, the state toxicology lab detected tetrahydrocannabinol (THC), the mind-altering compound in marijuana, in 1,266 DUI-related blood samples. The 2012 number is on track to equal or exceed that total.

Other than alcohol, marijuana was the most common drug detected by far: It was found in 66 percent of all samples where drugs were present.

But Richard Nedlin, an Aspen-based deputy district attorney for the 9th Judicial District who handles many marijuana cases, says he's never seen someone arrested for a DUI with marijuana alone in their system.

"It's usually marijuana mixed with alcohol," he said.

In all of Pitkin County, including the city of Aspen, there is only one sheriff's deputy -Levi Borst - certified as a "drug recognition expert." DiSalvo said he is planning to send more deputies for training, but for now, police sometimes must wait for Borst to arrive before fully evaluating a suspect.

Borst is trained to detect signs of marijuana use - a driver drifting and swerving is an initial red flag, followed by an inability to pass basic performance tests, such as walking a straight line or standing on one foot.

Failing those tests would likely lead to an arrest, DiSalvo said, followed by a blood test once the suspect is in custody.

Yet Colorado has no official standard for what THC blood level constitutes "intoxication," and the science on that question remains contentious.

A bill proposing a legal limit of 5 nanograms of THC per milliliter of blood for drivers has been defeated three times in the Colorado Legislature. Its main opponents were medical marijuana patients who use the drug frequently and who claim their THC blood levels can exceed the 5-nanogram threshold even if they haven't smoked that day.

THC is stored in fat cells in the body, meaning it can remain in the system for weeks or months after use.

Jordan Lewis is a partner in the Silverpeak Apothecary, a medical marijuana dispensary based in Aspen. He said he's optimistic that lawmakers can identify a THC level that doesn't discriminate against people such as his patients.

"I am confident that a fair standard for driving under the influence can be established in order to prevent impaired motorists from driving," he wrote in an email, "while still protecting the rights of those who chose to use marijuana responsibly."

Lawmakers will take up the issue when they convene in January.

In the meantime, neither Pryor nor DiSalvo expects the passage of Amendment 64 to greatly lighten their enforcement loads because marijuana hasn't been a major police focus in the county for years.

In the city of Aspen and Pitkin County combined, there have been 11 arrests for marijuana possession so far in 2012, according to city and county records. In 2011, there were just four possession arrests, and in 2010 there were 12.

And Nedlin, the deputy district attorney, said he rarely prosecutes people for pot possession because pot is typically found incidentally when officers are investigating other crimes.

Pot's low profile on the law enforcement scene recently is probably due in part to the rise of the medical marijuana industry since its legalization in the year 2000 - there are 723 card-carrying medical marijuana patients in Pitkin County, according to state figures.

"For all intents and purposes, this product has been legal in the state for 12 years," DiSalvo said. "It hasn't punched a hole in our moral fiber."


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The Aspen Times Updated Dec 13, 2012 06:54AM Published Dec 12, 2012 12:20PM Copyright 2012 The Aspen Times. All rights reserved. This material may not be published, broadcast, rewritten or redistributed.