With recreational use and sales of marijuana now legal, state and local law enforcement agencies are reminding the public that driving under the influence of pot still is against the law.
In May, the Colorado General Assembly passed a controversial measure that sets a threshold for marijuana-impaired-driving arrests. A driver with five or more nanograms of active THC — the psychoactive component of marijuana — per milliliter of blood at the time of impairment testing is likely to be cited on suspicion of DUI. The law states that the 5-nanogram-or-higher level “gives rise to permissible inference that the defendant was under the influence.”
“From the perspective of law enforcement, the legalization of recreational marijuana hasn’t changed the DUI law,” said Col. Scott Hernandez, chief of the Colorado State Patrol. “If you drive high, you will get a DUI. Officers are trained to detect impairment of all substances — including marijuana.”
It also is illegal to consume or display marijuana on any public roadway, to have marijuana in the passenger area of a vehicle in an open container or to have a container of marijuana inside a vehicle with a broken seal, the Colorado Department of Transportation said in a recent statement.
The state has launched a campaign, “The Heat Is On,” to bring attention to the dangers of alcohol and drug-impaired driving. Locally, the Aspen Police Department and Pitkin County Sheriff’s Office are spreading the word about the ills of driving while high at various community events. The topic is expected to come up soon at one or more panel discussions being hosted by the recently formed Valley Marijuana Council.
Pitkin County Sheriff Joe DiSalvo said his department will take a case-by-case, reasonable approach to enforcement. If a motorist seems too pot-impaired to be driving, deputies will investigate the matter just as they would if they suspected alcohol or some other drug were involved, he said.
“There’s going to be a common-sense approach to it just like there is with drinking,” DiSalvo said.
But he also said his department is not out to punish people who use the product safely and responsibly.
“Recently we pulled a guy over, and he had some product in his car. There was no evidence that he was using it, but I think he had just bought it, and the car smelled like marijuana,” DiSalvo said.
“So, what the cop did was ask him to get out of the car so that he could separate the smell of the product and the guy’s behavior. He saw that the guy wasn’t stoned and he was totally capable of driving. So he said, ‘I think you’re OK to drive’ and he let him go. That’s a judgment call by the officer.”
The Sheriff’s Office has a deputy, Levi Borst, who is a certified Drug Recognition Expert. He is the only certified DRE, as they commonly are known in police circles, among upper Roaring Fork Valley police agencies. He routinely assists area law enforcement personnel with impaired-driving investigations.
Borst said that since Amendment 64 went into effect last year, allowing recreational marijuana consumption, he’s not sure how many times he’s made a DUI arrest that involved marijuana.
If a suspect’s blood test shows 5 nanograms (or more) of THC per milliliter, it can be “presumptively inferred that they were under the influence,” Borst said, referencing Colorado law. “That isn’t quite the same thing as having a ‘per se’ limit — in terms of the way alcohol works with the 0.08 level for DUI — but it’s getting closer.”
The lack of a “per se” standard in Colorado means that a defendant is permitted to present evidence at trial rebutting the inference that they were impaired by marijuana, said Aspen attorney Jeffrey Wertz.
Wertz added that in most cases, a driver can refuse to submit to a blood test for THC levels. The exceptions are when a motorist is dead or if he or she is suspected of vehicular assault or vehicular homicide.
Consequences of refusing the test, according to state police, can include a one-year driver’s license revocation and other penalties. Wertz pointed out that some experts believe that more experienced users might show a high THC level even though they are more tolerant of the drug’s effects.
Bill Linn, assistant chief of the Aspen Police Department, said that having an expert on drug recognition in the upper valley is helpful, but all patrol officers are trained to spot the signs of drug and alcohol use.
“It doesn’t take a drug recognition expert to smell the smoke in the car and draw the appropriate conclusion,” he said.
Linn said he could not recall any recent DUI prosecutions involving drugs, including marijuana, stemming from an Aspen Police Department arrest.
“We have had some but not anything lately,” he said.
There are no breath tests for marijuana impairment, Linn noted. Blood and urine tests are available, and Borst said blood gets the most accurate results.
Borst usually takes suspects to a laboratory at Aspen Valley Hospital, but if his investigation is in northwest Pitkin County and the motorist lives downvalley, he sometimes uses Valley View Hospital in Glenwood Springs.
“I’ve had cases where an injured driver had to be airlifted to St. Mary’s in Grand Junction,” he said, “and a state trooper will go there on my behalf to complete that blood draw.”
It’s also possible to get a DWAI (driving while ability impaired) conviction for marijuana impairment while driving — the penalties are not as harsh as they would be for a DUI — but that’s usually the result of a plea agreement, Borst said.
There is no data showing how many DUI cases in the state have involved only marijuana. The state police started recording tallies of stoned-driving cases this year.
Borst said driving under the influence of drugs and alcohol “is always dangerous, and I include marijuana in that.” The state Transportation Department warns that marijuana affects reaction time, short-term memory, hand-eye coordination and perception of time and distance.
“I won’t say one (drug) is better or worse than another,” Borst said. “If you take enough of anything, you can drive yourself into a bad situation.”