Notes on the House Bill 1261 House Judiciary Committee hearings

Notes on the House Bill 1261 House Judiciary Committee hearings:


"Better that ten guilty persons escape than that one innocent suffer,"

Blackstone, 1765


"Better that ten innocent persons suffer, than that one guilty go free."

Colorado Law Enforcement, 2011


The Colorado House Bill 1261 hearings represent a perfect modern case study in prohibitionist thinking.

According to the proponents the science is clear and we just can't take a chance, from the public safety perspective, of letting people under the influence of marijuana ("cognitively slowed and diminished, scientifically just like alcohol"), stay on the road.

Despite that driving under the influence of marijuana is already illegal and people are punished for it, not to mention sued, do we need to make it even easier for prosecutors to get convictions? Why is this? To combat a perception, projected by the Office of National Drug Control Policy, Law Enforcement and the Addiction Treatment Community, that marijuana has recently become more available in Colorado, in part due to the proliferation of medical marijuana licenses:


These notes are not 100% complete but I wanted to get them up asap.


notes on the 3/8/2011 Colorado House Judiciary Committee HB 1261 hearings:


Committee Chairman Bob Gardner "Next up is HB 1261, Reps. Waller and Levy. Let me speak to the audience briefly, this is the 3rd in our MJ legislation trilogy this year, and on the prior 2 occasions there have been instances of public displays in the committee room, whether applause or cheering, let me just say that is not appropriate and I will ask you to refrain from doing so...And the title of the bill and matter about which we will be accepting testimony on is concerning the establishment of a THC blood content threshold for puprose of charging a person with the criminal offense of DUI Per Se..not a hearing on legalization or whether medical marijuana should be changed...I will be using the (timing) lights this afternoon with the exception of some witnesses that are informational or representatives of state or law enforcement"


Claire Levy "This bill comes out of the Commission on Criminal Justice. One of my constituants who you'll hear from brought to me the concerns she working in the District Attorney's office in Boulder...that marijuana use is becoming more accepted it's more prevalent, with MMJ, decriminalization largely of possession, and with that we have to protect public safety on the roads...I admit to being skeptical about whether we could set some kind of scientifically validated limit, so I said let's take it to the drug policy task force of the CCJJ and let them look at the evidence, and given that you have defense attorneys and prosecutors and law enforcement and all sorts of people representing different interests, I wanted them to take a look. Which they did, rather exhaustively, and ultimately recommended the 5ng level. Some folks who appeared in front of the DPTF thought we ought to do a 2ng level and the committee looked at it and decided that since this is a fairly new area for states to get into that we should go with the 5ng limit which some other states have adopted and some literatures seems to support.


So that's the bill, from the DPTF it went to the larger CCJJ, that commission voted to support it, and that brings us here. I will let former prosecutor Rep Waller explain the nut and bolts, and let me just explain exactly what it does, it does establish a per se limit for driving, if you test above that limit you would be guilty of the misdemeanor of dui drugs, the limit is established as a unit of whole blood and the test is for delta 9 THC which is the psychoactive component of cannabinoids and it is measured as a unit of whole blood vs plasma.


I've presented to the committee...I think you should have this, I've got about 45-50 copies for the audience but what I've got here is a chart that shows, one side is smoking, the other is oral consumption, how THC levels are absorbed into the blood stream and dissapate. You need to focus on the dotted line that shows THC, so this graph shows that immediately after smoking you may have up to 150ng per ML of plasma, divide by 2 to get whole blood, but then very quickly it falls to a legal limit, and it's kind of approximate here but translating it to whole blood roughly 1 hour after smoking you'd be under the legal limit, and on the other side, oral ingestion, THC would never rise to the legal limit...that's all the comments I have.


Rep. Waller "I agree with what Rep Levy has told us and I agree I was a bit pessimistic as well but I didn't know that (nanogram testing) could happen but once it went through the DPTF and they assured us they could test the part of THC that renders you under the influence to be driving when we found they could measure that, and that smoking and ingesting would have a close nexus to the time of driving, I became convinced we could establish a THC limit just like for alchol and this was a good idea...


For the nuts and bolts, Rep. Levy said it establishes a per se violation, it does, a per se violation of driving under the influence of marijuana, simply called, driving with an excessive THC limit, just like we have a per se limit for driving under the influence of alcohol, excessive BAC, but this bill also creates a presumption that when you're driving in the state of CO tnd your thc limit is 5ng or greater it creates the presumption you're under the influence of MJ, that is a rebuttable presumption for the charge of DUI, and likewise there's a presumption that you're not under the influence if you're under 5ng, and that's effectively what this bill does.


Now I've heard a lot of discussion, gotten a lot of emails, like I'm sure most of the committee, some folks say well, you're to going to prevent peolpe who are legitimate mmj users from excercising their right to drive, well it's currently against the law to drive under the influence of MJ just like any drug whether it's prescription or illegal...when I was a prosecutor I prosecuted a person for driving under the influence of Ambien. And we got a it's currently against the law to DUI drugs whether prescription or not, we have a duty to protect public safety which is why we create these DUI laws in the first place.


I've also heard some folks say this might be unconstitutional, that because MMJ is provided for in the CO cons that it will be in some way unconstitutional to set a per se limit at 5ng for DUI of THC, well I'd like to point out to you all that alcohol was at one time constitutionally banned in the USA and the privilege to drink alcohol was constitutionally reinstituted. So people could effectively have a constitutional right to drink alcohol in the USA and that hasn't once prevented a state from passing DUI laws and I think that's a pretty analogous issue here.


And I'd like to end with one more area of disagreement I've heard is that this bill might violate the ADA act, once again I'd like to point out that it's already illegal to DUI of any drug that would put you under the influence, whether its prescription or illegal so I don't see the nexus there. So I guess Rep Levy and I would love to take your questions."


Rep. Gardner: "Do I understand this correctly that ingested oral THC just by this chart would never place one above the limit for this bill?"


Rep Levy: "You are reading that chart correctly."


Rep Waller: "I've heard it's much harder to get to the 5ng level, and you'll hear from the toxicologist, but you have to ingest a lot more to get to that level with ingestibles."


Rep Duran: Can you elaborate a bit more on the standard currently used when someone is DUI Marijuana and how that's tested?


Rep Waller: "I appreciate that question, currently in the state you can be convicted for DUI of drugs or alcohol whether its MJ or some illegal or prescription narcotic, we simply have a charge of DUI and it's up to a prosecutor to prove that you were driving under the influence and the way they do that currently with other drugs is they bring forth evidence that shows you might be under the influence of something like slurred speech, blood shot watery eyes, dialated pupils, even the smell of marijuana might be evidence like the smell of alcohol. What we're doing takes it a step further like we've done with alcohol, that creates a presumptive limit, a limit that says yes we think you're under the influence of mj if your THC content is over 5ng.


Rep. Del Grosso: Currently if someone is pulled over they can refuse a roadside sobriety test, they can do that and you lose your license for a year, I don't see that in here...?


Rep Waller: That's not quite correct, a police officer has to have probable cause to pull you over to affect a stop, and if they don't than anything they gather would be thrown out, but if they have probable cause to affect a stop, then what they have to do is determine if they have probable cause to ask you to take a chemical test, in this case it would be a blood test, you can refuse to do any voluntary roadside sobriety maneuvers and that can't be held against you in any way, but if there enough indicators without those voluntary roadside checks, whether its bad driving, the smell of marijuana, dialated pupils,slurred speech or something like that...if there enough of those factors together they can ask you take a chemical test, and if you refuse to take the test than your license is suspended


Cynthia Burbach, forensic toxicologist CDPHE for 27 years:

expert witness, testified 1300 times on marijuana and driving.


"Drivers under the influence of marijuana are two times more likely to be responsible for a crash and two times as likely to be in a fatal crash."


"Well we know that delta 9 thc based on peer-reviewed scientific literature reduces peripheral vision, lack of coordination and balance, distortion of perception of time, speed, space and reduced ability to judge distances."


"(peer reviewed scientific studies) show 2ng being equivalent to 0.05 (BAC) and 5ng being 0.08 (BAC) as it relates to impairment."


"even with people that are medicinal users they have dimishment of cognitive function 24 hours later and that includes thinking judging and risk taking."


"THC is different from alcohol, the makeup of your body doesn't matter with the levels in the blood. But where it does matter is elimination, THC is lipophilic (fat loving) and can hang out in the fat cells and be eliminated at a much lower weight."



Rep. Del Grosso "so that brings up another question, so when we're going to this nanogram level would a bigger guy like myself stay above this 5ng longer than because I'm a bigger guy?"


Burbach: "No. What matters is the amount you smoke, how you smoke it, the dose. It's dependent on the dose."


"...(alcohol and thc) are similar in the way they affect the body and so the studies are done together as a meta analysis..."


Rep. Mark Waller "Rep. Lee, our witness here is telling you that (we look at impairment) this is a totality of circumstances. So as an old prosecutor when I would prosecute people for DUI I'd look at all the circumstances related to that incident. Did they have bad driving? Bad driving is a certainly indicator of intoxication. Were the speeding? That can be an indicator of intoxication. It's not necessarily an indicator of intoxication, I speed all the time and I don't drink and drive...when you add all the circumstances up together it's "do they equal intoxication". (it could be bad driving) associated with the smell of marijuana. Then it could be having your cognitive abilities impaired...not able to do the cognative impairment tests to the satisfaction of the police officer.


I also know there are some indicators to indicate "ingestation" (sic) of marijuana by looking at the tongue and inside the mouth. That's a tool that law enforcement uses to determine impairment."


Rep. Lee "But by establishing 5 ng/ml doesn't that create a per se presumption of intoxication?"


Burbach "It does."


Rep. Waller "Rep. Lee, it would have been great if you'd been here to hear all the previous testimony we could have saved a bit of time here because a lot of this has been covered most of this has been covered already one of the things you might have missed the witness say also is that based on her experience with over 1300 times she's been qualified as an expert she has told us that again based on the imperical data that 5ng of delta 9 thc in your system is the equivalent, the impairment equivalent of .08. So you have, she's already told us that they're the same sort of impairment characteristics associated with being at .08 BAC and 5ng of delta 9 thc in your system."


Rep. Levy: "I think it's important for people to know that Rep. Lee was presenting a bill when he was out of the room."


"Miss Burbach's testimonies in court have been to link or to validate the test results and to link that to what the scientific literature tells us about impairment. The purpose of this that this would remove that additional step of actually demonstrating that if you're at or above 5ng you are functionally impaired. This would create a presumption that you are. So the question I guess we're trying to put in front of the committe is if that's a scientifically valid conclusion to draw....Boy I've got 4 or 5 inches of materials that I've read and you will hear I think from people who follow in their testimony that there are studies that are all over the map literally on this and one of the reasons for that is that different studies have been measuring different things..some have measured THC as a % of serum...some have based epidemiological studies on metabolites on urine because they didn't test for blood....but I think there are a couple meta-analysis that bring all these together and some language out of one I have in front of me cites a meta-analysis of 60 studies concluded that marijuana causes impairment in every performance area that can reasonable be connected to safe driving of a vehicle..."


"there are studies that try to establish an odds ratio of your risk of an accident with different THC levels in your blood. The results of those anaylsis show 5ng and above equating to an odds-ratio of 6.6 which is a substantial risk of accident. THC positives particularily at higher doses it says are about 2-7 times more likely to responsible for their crash compared to drivers who have not used drugs or alcohol."


"I will tell you there are a dearth of studies that establish this risk"


Rep. Duran: "I'm struggling with whether or not the current standard under the law of looking at the totality of circumstances vs. Putting this into effect, which one is better? And if this bill were to pass how would the 5ng standard be communicated to (mmj) patients, and if you have enough data regarding the potency and amount a patient would what point would they know they've... consumed 5ng. Is there data that we have right now if this passes that we can communicate to patients that says "if you've consumed this amount you're definitely going to be considered under the law as impaired to drive?"


Burbach: "It would be based on a time frame correlating back to scientific literature that it would be reasonable amount of time to wait 4 hours after medicinal use to come back to baseline before operating a motor vehicle."


Rep. Waller: "I don't know how many beers or how many glasses of wine or how many shots of wild turkey it takes to get me to .08 but I can tell you that my standard is 1 is too many and I can tell you that if I'm going to be driving I simply don't drink."


Jill Lamoureux: "I'm the representative of center owners on the CDPHE board...the major concern I have is that the science is difficult to understand. At the Board of Health the standard for adding new conditions to the list is double blind placebo controlled studies."


Dr. Alan Shackelford: "The problem with cannabis is that in fact peer reviewed studies aren't the same as double blinded controlled studies....FDA guidelines for the use of Marinol, which is significantly more psychoactive than botanical cannabis and THC from botanical sources, say that a patient taking marinol may operate a motor vehicle or heavy equipment once he or she is familiar with its effects. So there are no particular nanogram or other blood or serum or plasma levels of Marinol that the FDA in placebo controlled randomized studies has indicated correlate with impairment. And I think that's an important point since marinol has been shown in a number of studies to be particularily impairing."


"There are a variety of studies from the NHTSA that indicate that THC levels do not correlate with impairment. Other studies done in peer-reviewed articles indicate also that THC may be elevated at above 6ng per ml of serum up to 48 hours after use."


"THC and alcohol are vastly different. (With THC) there is no correlation with any sort of enzyme level that one can, as with alcohol, predict a particular degradation or metabolism of alcohol so that a 0.08 BAC can be predicted to decline at a given rate---that is not the case for THC. Accommodation can make someone much more functional with THC at elevated levels than is the case for alcohol."


"The inference that somehow a green tongue is an indication that someone has consumed cannabis is completely unfounded, there is no medical basis for it whatsoever."


Laura Spicer, citizen, mother, substance abuse professional:

"This is my 10 year old son Ben....In April of 2010 Ben and I were riding bikes. We stopped at a sidewalk bike path at at traffic light. When the light turned green and ben started to cross on his bicycle I heard the horrifying screech of car brakes. When I looked up Ben was directly in the path of a driver making a right-hand turn. My heart literally stopped. It felt like that. The driver came within inches of my son. He was so frightened that he fell off his bike into street and ran to the curb leaving his bike in front of the vehicle. I noticed that the driver had his window open so I shouted at the driver "Watch where you're going you nearly killed my son" The driver didn't get out of the car. I approached the driver and instantly smelled marijuana wafting from the car. I was alarmed and I said "you are not driving high are you?" and he waved a profanity with his hand and said "leave me alone I have a licence" meaning, a MMJ card. I countered "you don't have a license to kill!" ...I didn't think to get the license plate. My son will not ride his bike to this day....My son followed the rules that day. He waited for the green light and proceeded with caution. That driver didn't and to me that he was a public safety nightmare. He lacked responsibility and carried an attitude of entitlement to drive because he held a MMJ card. I knew what I witnessed was wrong and I needed to do something about it."


"It didn't take long for me to learn a few important things. There's a difference between recent research and historic research such as the one the doctor referenced from 2004....which actually reflected levels of THC around's reported that we're seeing levels exceeding higher than that."


"I have listened to the claims and concerns of MMJ users who don't believe that they're impaired when they drive or perhaps are uneducated about the science behind the tests recommended today."


"I'm here to discuss pubic safety, mine yours and for gosh sakes our kids"


"I have a real concern about the fact that, in my profession I understand that marijuana is used more often in the daytime perhaps than other drugs like alcohol."


"After much investigation I came to one simple truth. Marijuana impedes the brain, and affects driving skills to an unsafe level, period."


"After 3-4 hours, that's all we're saying."


"Research suggests that those that use marijuana habitually may actually be habitually impaired and perhaps the misperception of not feeling impaired or believeing they've gained tolerance might merely be the experience of being practiced at being under the influence. Remember, impairment to the slightest degree."


Sgt. Craig Simpson, "Drug Recognition Expert" & patrol seargent representing Colorado DREs in support of this bill:


"There are other tests which officers can perform that may help them to make this (impairment) determination tests such as one called "Lack of convergence" which looks to see whether or not a person is able to cross their eyes. Marijuana is a drug that prevents a person from being able to cross their eyes. Interestingly it is the only drug category that doesn't allow a person to cross their eyes and also doesn't allow a person to exhibit a jerkyness of their eye."


"In CoS we have noticed an increase in imparied driving due to marijuana, we've also noticed an increase in daytime marijuana DUI incidents. We need this bill to help bring these numbers back down."


"(this bill) becomes a tool to assist us in the reduction impaired drivers on our roadways."


"The big benefit of of the per-se limit to law enforcement comes in the prosecution of the case. Without per-se limits juries are left with an officer's testimony in order to determine whether or not the impariment exists. A nanogram limit may be discussed but iwhtout a baseline to measure from the significance of the concentration of THC becomes relatively insignificant. With a per-se limit in a concentration of a persons blood, the numbers do become more significant. The juries now have a yardstick by which to measure."


Rep. Lee: "Have you actually read the studies that have done those (impairment) correlations...I might be totally incapable of (performing impariment tests) when I'm completely sober."


Sgt. Simpson: "I have actually read numerous studies from that, they primarily come out of NHTSA... They were performed in the mid 70s, looking for a way to positively test someone to see if they were under the influence."


"In my experience the vast majority of people arrested for DUI of marijuana come back with THC levels significantly higher than the 5ng limit. Most of the people who I'm aware of come back in the 14-17(ng) range so it's significantly higher than that.


Chad Day, Yuma County Sheriff, representing County Sheriffs of Colorado, supporting:


"(this bill) allows us to not have to rely so heavily through the judicial process on just observations, it's just an additional number that we can use that helps to prove and strengthen the observations that our officers on the street have already made."


Mike Violette, Excutive Director of the Colorado State Lodge of the Fraternal Order of Police, supporting, retired officer with over 400 DUI arrests:

"A person may show you their medical marijuana card (during a traffic stop) it also may be indicative that there's a potential (impairment) there along with admissions of the driver."


"(an officer from the Denver PD) told me they have 267 arrests for cannabis in the last 12 months alone."


Christopher Halsor, Colorado District Attorney's council. State's traffic safety resource prosecutor.


"...With our alcohol per se law, and we have these numbers out there. We've heard testimony about the science behind them and why those are recommended, the same thing with alcohol. We have the .05 and the .08. Now surely, when those bills were passed there were likely people that said "hey I can go out and drink and I feel fine! And there's a couple elements to consider in that people who maybe consistently use a substance be it alcohol or be it marijuana maybe they absorb and get used to some of the effects of those things and as a result that can also have the impact on them feeling as though they're capable of driving."


"(regarding roadsides) people focus solely on the physical aspects of that, as a result if the person can walk in a straight line they say You know what, that person is safe to drive a car. But those roadside manuvers are designed to evaluate the mental elements and what I think we've found with some of the literature on marijuana is it is the cognitive impairment, the mental aspects of it. Now for a person driving who maybe is a medical marijuana user, they take it all the time. Under normal circumstances if it's a regular...if they're driving to their job, and everything goes normal as usual , great! But a lot of times what the scientific literature points to is slowed reaction times, diminished peripheral vision, those other things that often result in, when circumstances whne your driving don't go the way you planned it, something juts out in front of you, a car crosses over into your lane. It's in those circumstances where that diminished capacity comes into play. So you may have users out there that think "Im perfectly able to operate a vehicle but cognitively that's where they're seeing the diminishment. And that's one of the reasons to have the Per Se. It's really no different from someone who consistently drinks alcohol and has built up an excessive tolerance for it. What the literature for alcohol says, same thing! They might be able to walk down a straight line, turn around spin, do all these other things and seem perfectly fine but what's going on in their brain is slowed and diminished."


"There's been discussion of a presumption... Actually the language within it says it's a permissible inference. And what that actually allows if such a case were actually to go to a jury the jury is given instructions that talk about a permissible inference that in effect says "you can accept that number or you don't have to accept that number" it doesn't force the jury to say "yep that person's over 5ng they must be guilty."


Chairman Gardner: "so this per se limit is really a permissive inference rather than a rebuttable presumption."


Halsor: "That's correct."


Chairman Gardner: "so at trial really if one's going really sort of carry the burden of proof you probably do have to have someone come and testify for the prosecution about what that permissive inference level is about...and what it means, I suppose you don't have to have that testimony but you're in great peril of not carrying your burden if you don't."


Halsor: "I think that's a fair assessment."


"My position is grant funded through a grant by NHTSA and as such I have a specific charge in which I'm largely responsible for the education and training to law enforcement and prosecutors on these issues."


Rep Lee: "I'm referring to the bill...I'm reading on page 3 line 8 it says it's a misdemeanor for any person driving a vehicle when the person's thc is 5ng or more at the time or within 2 hours after driving ...that to me is sort of a conclusive presumption not a permissible inference.


Halsor: "The practical manifestation of that law would be the instruction to the jury which would be the permissible inference...that's how I interpret this statute is being written how it would ultimately play out with these cases at trial."


Rep. Lee: "To me the language says "it is a misdemeanor to drive with 5ng"


Halsor: "Rep. Lee if you also look at the statue for DUI per se it will say the exact same thing but in practice in an alcohol related per se charge...the juries receive instructions wtih a permissible the end of the day they will operate the same way."


Mark Hurlbert, 5th district DA, on behalf of the Colorado DA's Council in support:


"Rep Levy talked about this being a CCJJ bill and the drug policy task force and I'm on the DPTF and of course there was a smaller committee that sat down and decided some of the specifics such as the nanogram level and on that committee were defense attorneys, there were prosecutors and there was also a person named Sean McAllister who is a local defense attorney from Breck and also a representative of Sensible Colorado. And every single person agreed to the 5ng level at that committee."


"ultimately we're talking about public safety. And the permissive inference..which comes from the statute on page 4 line 3 where it talks about that in any prosecution for DUI it gives rise to certain presumptions and inferences including the presumption that if the THC is 5ng or more it gives rise to the permissible inference that the defendant was under the influnce of drugs. Which means that they can yes they can rebut that they can say Yes I was not under the influence I was not intoxicated, I could drive."


Rep. Del Grosso: "So this language just mirrors the DUI for alcohol."


Hurlbert: "Yes it does."


Peter Koclanes president, Colorado Trial Lawyers Association in favor.


"A majority of our members are advocates for citizens who've been injured in auto accidents."


"It's clear that more and more persons in Colorado are using marijuana."


"The CTLA respectively believe that our law should be modernized to reflect the realties of marijuana use in our state."


Dr. David S. Timken, Director, Center for Impaired Driving Research and Evaluation. Supporting:


"Certainly when you take a look at the literature, the peer reviewed literatioure, and when it was published, and the reasons why it was published, and the methodology, the latest evidence is very overwhelming."


"There hasn't been a lot of research in Colorado, the great majority was done in the Netherlands."


"I hear anecdotally from colleagues such as Ms. Spicer in the treatment field, the problems is growing and difficulties with people that are in treatment showing up for treatment after having smoked or ingested marijuana and I don't see this problem diminishing until from the highway safety perspective until we get something such as this piece of per se legislation on the books and we are able to enforce that and gather some data and do ongoing research."


Leonard Freiling, criminal defense attorney, in favor with amendments:


"I think that what you're hearing is absolutely inaccurate and Rep. Lee's questions point it out. Per se is not a rebuttable presumption, Per se is not a permissive inference. Per se means if the number is proved you are guilty and you absolutely do not have the opportunity to present evidence of lack of impairment."


"The bill cannot say both per se and permissible inference. It cannot say both per se and permissive presumption. Those are two legally totally different things. And I have personally reached out to people working at dispensaries and patients in an attempt to educate tem to the fact that the latest science is that marijuana causes impariment to driving at some levels. 5 (ng) may well be a rational number at which a case should end up in court. It is not a rational number at which a person should be forbideen from saying "I may have been at 5ng/ml of active THC in whole blood but my driving was not impaired. Per se does not permit that defense, it is simply wrong."


Rep Waller: "Does the proposed legislation read the same way as the current statute for DUI Alchohl?"


Freiling: "It does not, it conflates...we have 2 different charges for DUI, forget impaired, we have DUI Per Se, that's a crime, we have DUI where the people have to prove that you were substantially impaired, there's two different crimes being conflated and you're being told it's one crime and that's not the statute in the state of Colorado. If you're charged with per se you can argue in fact that you weren't at .08 of alcohol, you cannot argue that you weren't impaired."


"You must remove the words "per se" or you will not be doiing what this legislative history, is going to say you think you're doing. The words per se do not mean that. The permissive presumption does mean that, rebuttable presumption does mean that. Per se does not mean that. We've a long history, it's not a close call, it's not subtle law, and I'm not new at this."


"What I've been hearing all afternoon is "Per Se with a rebuttable presumption" and there is no such thing. There's the crime of per se and if it's your intention to make it a crime to have 5ng/ml than the language provides that, but that (bill is) certainly not drafted in such a way that leads one to believe that's the intention of the statute."


"If you want to make both illegal it's the prerogative of the legislature. I'm just trying to make it very clear that what you're doing is not what I hear you think you're doing."


"(to Rep. Lee) they're 2 different things You've been correct in seeing the disparity."


Corey Donahue, representing current science:


"The report in front of you, the effects of cannabis compared with alcohol and driving was researched by Yale for NIH...and is the most current and thorough report on cannabis and it's effect s on I really don't know why we're discussing this today. The facts backing it, shown by the Federal Government, to be outdated and incorrect. As stated in the report, epidimological studies tried to measure actual risk that a driver will cause an accident on drugs relative to a sober the form of an odds-ratio...The study of 414 injured drivers admitted to a Colorado ER indicated an OR of 1.1 indicating that marijuana use was not associated with increased crash risk responsibility. And a later reanalysis of the Drummer report...was adjusted for age and sex of fatality and the OR for cannabis dropped to 0.6...vs 7.6 for alcohol."


Scott Green, Mile High NORML:


"Setting inappropriate THC levels would needlesssly harm the patients and hinder the judicial system here."


Shan Moore, father:


"How many nanograms is it for him to drive when' he's high on the valium or the xanex and why are you singling out mmj patients with this bill?"


Chariman Gardner: "The purpose today is for you to testify and if sponsors wish to respond they may."


Moore: "It's a prejudice...why are they being prejudiced against MMJ and we'd like to know that."


Rep Waller: Certainly driving under the influecnce of any prescription medication is against the law and a person can be found guilty of DUI...I don't believe we're being prejudicial and current science allows us to create this limit of a correct and appropriate limit that's based on all the evidence we've heard here today."


"Some states actually have created limits for other prescriptions and that may be somethign we want to look at in CO at a later date..."


Moore: "It just seems very prejudiced."


Mark Rose, Nederland:


"I fear the unintended consequences, especially for teens."


"There's already laws on the books to...and it doesn't make sense to make a whole new law with those on the books. And with the state budget in its position I don't see where we have the funds."


"I don't think that no-tolerance is what Colorado's about...what I'm scared of is unintended consequences of young people maybe getting busted for smoking the night before, not getting into the good school and getting the good job."

Rep. Sonnenberg: "The charts we have here show...that after a couple hours almost any way you use it, it drops below the 5ng...can you help me understand the difference."


Rose: "As a patient, there's different types of ingestion that you do. When you use it as an edible or infused product it seems to work more like a prescription the half life takes a lot longer to wear off and stays in your system a lot longer."


Rep. Levy: "I wish we could just test Mr. Rose and it might alleviate his concerns."

Rose: "I'd volunteer!"

Rep Del Grosso?: "Rep. Waller if we have.. no rebuttable presumption or no permissible inference, then effectively the (current) DUI of Drugs would make this zero tolerance would it not? And making it 5ng actually works to the benefit of those whose blood (THC) level drops you have the permissible inference for anyone over 5(ng)...the assumption would be that if the THC is under 5 (ng) than they are not under the influence.


Rose: "I'm against the bill as is but I see a need for it but maybe more study on the proper nanogram level...I think it needs more study."


Max Montrose, patient, representing patients.


"I'm scared to death that I'm going to go to jail for being intoxicated when really I'm sober. If I carry my smoking device in my car and it reeks and I get pulled over..."


Zachary Taylor,


"I would ask the elimination of the per se violation. By making the 5ng inherently illegal it doesn't give the driver the ability to present evidence they're not impaired. It gives law enforcement the ability to unjustly profile medical marijuana patients."


"The safety clause is fallaciously implying to the public that cannabis drivers are a threat to public health...people driving on pharmaceuticals are a much greater risk to society than cannabis users."


Gerald Olsen, patient.


"The whole world is looking at us right now and we are representing who we are as a state and I don't necessarily agree with this nanogramt esting on cannabis patients however I understand that we are in ademocratic society and we need to come with middle ground. Let's not make a knee jerk legislation based on ignorant data irrelevant to what's going on our state...we're leading the world right now and we need substantial data on what's going on that we do within our own state...and create with the plethora of wonderful scientists we have...CU CSU DU...and come up with something that looks like Colorado."


Robert Chase: Colorado Coalition of Patients and Caregivers


"It's very disturbing to hear the amount of inaccurate testimony being presented as science."


"Dr Timken made a claim that the overwhelming preponderance of new evidence indicates some reason to act whereas that is completely false."


"(quoting from a study) NIH 2009 although congnitive studies suggest that cannabis use may lead to unsafe driving, experimental studies have suggested it can have the opposite effect. Epimiological studies have been inconsistent and have not resolved the question...all studies have been inconclusive is the determination reached by other reviewers. Similar disagreement has never existed in the literature on alcohol use and crash risk. There is absolutely no reason to act."


"The citation was the American Journal of Addiction 2009...1 section 3 pages 1855 to 1930, the title is The affect of cannabis compared with alcohol on driving."


Rep Levy: "This study is very informative because...a meta analysis of 60 studies indicates that marijuana causes impairment in every performance area."


"if you can pull out language that proves your...Mr. Chase, Mr Donahue can, but I think if the committee reads the whole report you'll get a pretty good picture."


Chase: "This is quite the opposite of cherry picking our science, I read from the summary."


Mark Simon: "First I don't want to be on the road with any crappy driver"


"It's pretty clear that DUI is already illegal. Ask the capital security detail, they'll tell you, they don't need this law to arrest you if you're impaired."


"There is little to no US science to support this and on prescription drugs we wouldn't accept foreign studies for 1 minute...but on this one we'll accept foreign studies."


"Do we have blood level limits for any other prescription drug, in terms of...that you are impaired if you've used it."


"I listened to your drug recognition expert...look at me! Could I perform any of the tests he suggested?"


"Many of the things he pointed out..eyes move a lot, slur your friend mike has spent 10 days in jail for having cerebral palsy."


"We have 2 instances now in CO of people with disabilities being profiled...pulled over, asked for a list of their medications, and ultimately asked if they possess a MMJ card even though there was no indication....They're looking for something."


"If someone is driving with a hazardous manner...they should get stopped...but to single out a population for using a medication that we don't really have the science in this country to support it it's just bad public policy which is how we handled MMJ from the get-go...presumption, beliefs, misrepresentations, but without the evidence to support it."



Clifford Wagner, patient advocate: "Thanks for everyone who brought up the specific science today."


"The definition of Delta-9-THC needs to be put into the bill. The definition in there comes from the FDA controlled substances list. That is far too broad, in my opinion."


"The per se needs to be removed and is unreasonable and the science needs to be reconsidered"


Jessica Lereaux? "The statistics being cited scientifically only represent very small pool of patients, about 6 per study."


"What isn't really mentioned is the drug travels through the body on your body mass index, so your size is not really the indicator because you could be very tall and husky, high muscle to fat's your fat ratio that affects you. And that is going to be unfair."


Rep. Sonnenberg "my apologies for the outburst Iwhen the fat deal...that thing pertains to me!


Lereaux?: "To make the point, it's also going to affect women who have a much higher ratio of fat than every male patient because we have a higher ratio of fat to muscle."


"...based on population 5,000,000 not counting children, with 120,000 patients which is less than 3% of the state...we're designing this bill to affect less than 3% of our population. Anyone else with even 1 nanogram is in violation, if not a patient. So this only affects patients."


"Also...the study of edibles is 27 years old. 27 years ago there weren't a legal patient in the entire US...the other study is 19 years old."


"Also this overlooks acknowledging the driving impairment from chronic pain and some patients might be safer drivers with a medication prescribed by your doctor that you were accustomed to."


"Additionally I want to note that the officer from Colorado Springs said that the average field rate was between 14-17%(ng) on people...driving so erratically that they were a danger. That's a lot higher than 5ng."


Michael Marcella, member CDPHE Medical Marijuana Advisory Committee:


"...I believe a lot of the testimony has been one sided and skewed toward the lower limit of 5ng...and Dr. Shackleford should be a consultant with the state on matters related to cannabis. I believe his assertion that 8-11ng is a more acceptable level. I also agree with some of the testimony that we don't need this law....if an officer sees you swerving, going over the yellow lines, his testimony alone is enough without testing to have you arrested and convicted...(depending on their dose)I don't believe MMJ patients should be (forcibly) home-bound...what the convictions will be under this law will be a lot (harsher) than for drunk driving"


Paul Saurini, philosopher, proud marijuana user:


"I like it. I like the impact it's had on my mind, philosophically intellectually and (Marijuana) has enriched my life and my inter-relationships and...I'm very proud and not ashamed in the slightest."


"Who could argue with public safety...we want people to be safe and not get hurt. It's a big responsiblity to drive a car...many possible distractions that can end up in the worst possible scenario....really we can sit here and think up a million reasons for distractions or why we might not be at our absolute best...if we're not going to legislate against all of these things than why do we single out marijuana."


"I take my life seriously, I have a family and I take my responsibilities seriously...(comparison to alcohol) I know that it's a much more inebriating drug, you're much more impaired on alcohol...and the influence of marijuana isn't the same thing at all...This is not consistent with personal liberty."


Robert Mittan: patient, advocate, caregiver


"I could safely guarantee you that I have half a million miles driven with no accidents or tickets other than speeding where I've had at least 5ng in my system. This bill is basically going to eliminate me from ever driving again."


"I'm chronically ill and dying and I challenge you on the 5ng level...let's do some real testing."


"It's not requiring probable cause, it's per se. I'm wiped out."

"I challenge you guys to do some real testing with real patients here in Colorado."


Laura Kriho, Cannabis Therapy Institute:


"Rep. Levy (my rep) has been unable to provide (despite repeated requests) proof of a single instance of a stoned driver being a problem...despite living in Boulder for 25 years she can't point to one case....The study that she produced that talks about NG limits and how they peter out over time, specificaally ingestible mj...the study was from 1984 of 6 people and their oral does was 15mg...the average oral dose is about 10x that...People that ingest cannabis can't stop. You can't stop taking your medicine. You need that to live in some cases, literally."


"The part that concerns me the most is the forced blood draw. There is no other crime in the state of CO where you can be forced to give your blood to the gov. When you're pulled over for Alcohol you have a choice between blood or urine and that choice is going to be taken from patients...clearly we see this as a witch hunt on mmj patients."


"Marinol has been approved by the FDA as a schedule 3 substance...The warning on Marinol doesn't say don't drive, the FDA has deemed it appropriate to drive, all it says on the package is " not operate a motor vehicle until you see how it affects you." Clearly the FDA has done more research and concluded that it's ok to drive under the influence of marinol."


"The profile for a mmj user, LE they may not want to admit this, is someone that drives 5mph under the limit and obeys all the traffic laws. Maybe that's why we can't find the carnage on the highway. If the LE testified that there was an increase, a supposed increase due to MMJ use, where are all the dead bodies? Rep Levy can't point to one accident let alone a dead body."


"Patients respectfully ask you to kill this bill."


Kathleen Chippi, representing patient and caregiver rights litigation project,


"I want to remind everyone that the CO Constitution (A20) says all criminal penalties are removed from MMJ patients. You're trying to create more criminal penalties for patients with this language...we can't compare this with alcohol because alcohol is not a constitutional is legal like pharmaceuticals but not in the constitution...we do have a right to medical use and medical use is defined in the CO Cons as "transportation".


"Claire said she wrote this bill to prepare for full legalization...sounds like she is more concerned about full legalization for 18 year olds recreational use than use as medication."


"I'd also like to ask that if this passes, a blood test be added for the general assembly on the mornings of votes so the rest of us can understand what substances you all are under (the influence of) when you're voting."


"What happens after the person has been tested, removed from their daily experience, taken to the hospital in handcuffs, tested with a blood they have to wait weeks? Are they allowed to drive away? Do they go to the police station and sit for 24 hours? What is the appropriate time? What happens to that person in those 2 weeks?"


"...This sounds like 1937 reefer madness rehashed right here in the Colorado State building and it's very frightning."


Shar from Idledale, licensed educator, representatives for Moms for Marijuana Int'l:

"One of the premise for MfM is to keep our loved ones out of jail...not just patients but also innocent people who may be just driving. I agree with Mr. Lee that I couldn't even pass the stand on one leg test...that would absolutely make me throw up. I've also been a jury forman and I've seen what happens in court and juries and I would urge you if you do pass this to take the Per Se out because people should have the right to defend themselves and have it proven beyond a doubt that they're guilty or not."


"Also regarding profiling, and the 3% or less of Coloradans who may be affected...Women and people with more body fat may be more susceptible to testing at the 5ng level."


"As an educator I have a really hard time when people throw things out there, I consider it heresay, to put this out there without backing it up with references and sources or even a bibilography... Otherwise it's really heresay and has no relevance for making a law."


"We should keep innocent people from suffering from having their blood drawn...I've been pulled over for turning around in an empty parking lot before...that was his probable cause. We could have dialated eyes for other reasons, slurred speech. My speech is probably slurred right now and I've had nothing but tea."


"If you do vote for this take the Per Se out."


Lauren Davis, defense attorney and former prosecutor:


'I have substantial concerns about this 5ng limit, as a trial attorney who has substantial experience I would argue the current law is sufficient and allows the prosecutor to exercise appropriate discretion to look at the real the driver's performance imparied as demonstrated by their driving. I believe this proposal is based on a lack of understanding of the practical realities of DUI prosecution and the awful consequences that will flow from the individuals prosecuted under a per se law...if you're going to pass this per se limit (and I believe you are) please look at a higher limit. I don't believe this presumption of 5ng is an absolute, with respect to Ms. Burbach and other individuals here....substantial amounts of conflicting evidence...and statements from NHTSA that say a single blood test does not accurately reflect actual intoxication...concluded that it's inadvisable to predict effects of impairment based on blood concentration alone....depends on the individual and frequency of use, and heavy users have lingering effects (in their blood)."


"...the reality of probable cause in the courtroom is that probable cause is the officer's belief that you violated the law, this is how the traffic stop unfolds...but the stop and charges for DUI or DUI d often isn't necessarily precipitated by bad driving. It could also be a speeding or a defective taillight. But in Colorado the courts say the odor of marijuana, not alone, but taken with bloodshot eyes or red eyes, dialated pupils, add the odor plus any one of those effects and the judge will find that is probable cause which entitles an officer to force a blood draw from an individual."


"If you are going to pass a per se law, I'd urge you to require all testing be done by a state or county lab. For example Jefferson County has a contract with a private lab...I have a case, the defendant was charged with DUI-d, found with 8ng in his system. He is a patient, said he hadn't smoked in 12 hours. He had to spend thousands of dollars on independent testing and what they found was that the results from the independent lab were scientifically unreliable but that the prosecution was relying on a level over 5ng "indendent" test showed 1.8ng and the state lab showed 8ng...under a per se law every defendant is going to be forced to spend 10s of thousands of dollars to defend themselves."


"The 5ng limit is gonig to shift the burden to the defendent to prove their innocence which is not what the system is supposed to be...the current system the prosecutor can charge DUI-D and the jury can look at the factors that go into why the LE thinks the person is impaired, including bad driving, odor of marijuana, and the ng level becomes just one factor...under the per se system, it turns to the defendant to spend 10s of thousands of dollars to rebut that."


Nick King, association of cannabis trades for CO, member of the DOR advisory committee, owner of alpine herbal wellness:


"We've heard a former judge and several lawyers express concern with the per se...whether it means if I'm charged with having 5ng is that automatically then, guilty...there's no defense...does anybody here really know?"

"If this law is needed I'd suggest rather than having 5ng being the basic limit that we use that as the DWAI with 8ng for the DUI so there is some kind of spread...this would follow the alcohol rules."


"I'd like to give the committe a white paper that we have prepared that identifies a lot of research that has been done...we suggest a 2 year sunset review of this law so we can revisit this in the light of new data so it's not set in stone."


Robin Hackett, patient:


"I have reduced from 120 perocets monthy down to 4 or 5 thanks to MMJ...What I don't know from my what nanograms I'm at when I don't feel impaired. I would hate to go to prison just trying to get through each day...and to find out someone had a suspicion. If I were to get pulled over my purse smells like marijuana...this would be probable cause to request a blood test. Right now I don't feel impaired but what level am I at?"


Clark Young, representing patient advocacy as a patient:


"I'm not a doctor but I studied biochem for 2 years before I got my BA in Business Administration...this chart is clearly outdated first of all."


"Despite repeated requests from Rep Levy she hasn't provided one case where marijuana was the sole cause of a traffic accident...the NHTSA released a 2004 study that shows that chronic users normally average a much higher concentration than 5ng and this doesn't necessarily cause impairment."


"According to Dr. Melamede, infrequent users may have a lower level than 5ng and be more impaired than frequent users with higher levels..."


Miguel Lopez, with Denver 420 Rally, representing 50,000 constituents of my own.


"Mr. Waller said earlier that this is not prejudicial, but targeting, profiling, it is prejudicial. The community is coming to me and telling me that this is biased...I want to ask you folks if you are scientists and researchers?"


"This is a constitutional medicine and there is no other medicine that has been targeted like this community has, speaking as an openly gay chicano, for you to sit here and say that this is not prejudicial and targeting, this is as much as a lie like Sonnenberg's that I spit in Kara's face and was kicked out of here...I want to note that there is a peace pipe with our forefather's smoking up there...and I want to ask you folks what experience you have with MMJ...and I want to note that the state patrol, some of them have been very unprofessional about (us) wearing political statements."


"(Takes out needle) I want to ask you if you have ever felt this every time it's happened to you when you've been targeted or profiled?"


SA Shutlz: "...I brought some brownies, cosmic brownies I bought at wal-mart..."


"I believe there is bias, hate crimes involved. I did my blood test on the 8th of this month and it's much higher than the limits you're setting."


"I don't use tetrahydracannabinol, I use cannibidial and cannigerol(?)"


"5ng will never ever ever work for me as a patient. My cardiologist recommends I eat marijauan if I have to use it...this was in 2000 when I had my first myocardial infection(?)"


"I petitioned the supreme court on Jan 5th of this year for constitutional rights taken from me, they denied me. On Jan 6th the City of Thornton destroyed my medicine with no conviction. On Jan 7th I was charged by the county with child abuse for growing my medicine at home in a locked closet."


Rico Colibri, ACT4CO, worked with DOR rule making panel,


"This issue is like global warming, whatever side you're on you can find data to support your position..."


"Essentially, the paper Mr. King has given you has about 48 citations from published studies that support the notion that 1st there are latent THC levels...if you're a chronic user, about a joint a day, you can have a latent base level of 3ng with no impairment."


"I think we're forgetting that this law is for the rest of Colorado adults not just the patients and I'd like to see some protection in the language for medical users taking into account elevated high as 35. So essentially we were trying to propose 2 limits—one was a 5ng equating to .05bac and then 8ng as .08bac...and they actually (in Washington) went to the 8 level because of the latent what we're suggesting is a 2-tiered model that reflects alcohol...and the sunset provision was a good idea...and having some sort of rebuttable defense would be nice."


"Earlier they kept citing Dr. Franjo Grotenhermen...he's told me that latent levels can be 2-4ng in whole blood...and he is the most cited worldwide...if you read the entire paper the number 1 factors that affect THC when you drive is when it's coupled with alcohol and the age of the the end of the day I think the 5 and 8ng level, that dual model, is fair to protect medical users who might have elevated counts."


Jake Brown, the Releaf Center in Denver. Supporting with reservations.


"We agree a 8ng level would make the most sense...Sgt simpson said earlier the vast majority of DUI-D cases they see for marijuana had a 14-17ng level."


"...even with 100000 new patients we just aren't seeing the kind of impacts the studies would suggest."


"Delta 9 THC is just one part of the cannabis plant, that in some examples we're actively trying to breed out in favor of CBD, CBN...the state toxicologist didn't mention any of these, our big concern is patients that might choose some of these other compounds...we don't want these people falsely targeted, people wasting money, opening people up to lawsuits."


Ann Toney, attorney practicing 27 years, half as prosecutor, half as defense.


"I stayed here today for 1 reason, 1 message I want to give you...I don't see an issue with the per se being a big deal...but here's what happens with your constituants. They contact me and say "what can we do this is crazy", and I say contact your legislator, and they're not going to do that because what happens is they get charged with DuiD and you go to have all the players going to make sure justice is done, and then the case gets dismissed because of a very real reason, something they shouldn't have been charged to begin with. I have one case where the officer testified at the DMV hearing that he didn't think the patient had been smoking pot but he arrested him because he smelled it. So things happen in cases, the DA offer a careless, or a reckless, not all the time but in a significant number. So what's going to happen in Colorado is that if with this law you have 5ng you're going to lose your license, period, at the adminstrative level of the DMV. I've been reading it, and it doesn't say...just make sure section 5 says you won't get revoked for 5ng, but how I read it...the interlock doesn't if it's true they're not going to get revoked for 5ng, great....with alcohol you have a lot of of people choosing the intoxilizer instead of blood, but with this I expect a lot of crazy stuff going on...some people having an issue with needles, deathyl afraid of needles. Some research I did...there is a way to test orally, as effective as would be nice to offer an alternative to blood.


Rep Levy: ..The way the bill was supposed to have read was that there is not an administrative revocation.


Toney: "now we have a history making, thank you."


Mike Elliot, executive director MMIG


"For the last 2 years we (the MMIG) has welcomed sensible regulations and the responsibility that comes with it. We undestand the concerns about driving under the influence of marijuana, medical or otherwise...We are pleased to support the concepts of this bill. As responsible business owners we want to insure our patients are safe drivers. We are the first line of education for these patients and we look forward to providing the best information possible about safely consuming their medication and driving responsibly. Any state DUI standards should be measurable and based on sound has been discussed here today there's a lack of research on this issue, particularily concernign edibles and appropriate time frames for safe consumption and impairment. MMIG members are committed to pursuing the science that can enhance what we already know by the limited studies avaialbla and we look forward to working with the sponsors, the legislature, and the regulators to enhance the laws surrounding this issue."


Rep. Lee "Do you have reservations about this bill, are you making recommendations concerning this bill?"


Elliot: "Right now it is really the research that we'd like to see developed further."


Rep Waller: "We'd like to call Miss Burbach back up to make some clarifying comments. And Mr. Raynes"


Burbach: "The studies I have read reference, It hink there's a misunderstanding, these are new studies that have been presented at the conferences I go to and the societies I belong is not just the european studies but Dr Marilyn Heustis' studies and the ones she continuously does daily for NIDA and continually doing them as we speak...she is near publsihing a recent study...she has taken into account medicinal users and the conclusions ahve been the we know in science there are always outliers...there was 1 woman (who smoked 40 blunts a day) with a residual of 7ng....listening to her (Marilyn) talk about her studies and she felt this was a very fair number (5ng) I consulted with her because she's the leading authority, actually talked to Dr. Jan Raemaker who gave us permission to copy his study."


"Regarding traffic accidents and THC, I have been involved in testimony with regards to fatals with THC levels in blood around 5ng, most recently an adams county case with a person wtih 5ng and was accused of homicide and that outcome was a conviction of vehicular assault. During that testimony the jury wanted information on that number and how it correlated to impairment. There are other cases coming through the system, fatals with regard to THC and cases wth THC with other drugs that will require my testimony in the the science is there, based on the conferences I go to with the leading experts who present the data to scientists that do what I do in the state of wisc, ca, or, the consensus is the same that this is a very fair number and they think it should be even lower. I think what happens is people look at these studies and most of them use the plasma must convert...and over and over again the studies reference the nubmer should be below 5...there was a gentlemen who talked about a german scientist...he recommended a 1ng level in Germany...I think there is a lot of the labs we've had a 100% increase in sample load THC tests and a huge backlog and a lot of those tests we have an undetectable level because the officer doesn't get blood drawn in a quick manner...the highest we've seen was a 67 but it was with an admission of smoking prior to getting in the car and a very quick sample...the majority of our samples, we've gone from 60 to 600 samples a month...the typical numbers fall around 8-12, a lot at 5, a lot below that."


Raynes: "You've heard everything you need to hear, it boils down to a few simple categories. Consider the science, consider the law, and those 2 things come together with common sense its a good bill. As to the science you've heard that all day long and I think Miss Burbach has put to rest any of the misapplications of some studies and made a clear argument for what the science really is...Mr Shacklefords study was from 2004 with 11% THC...not very persuasive."


"Ms. Toney said what I was going to say...we've copied the alcohol provision will hold up. Ms Toney worked for me in the 7th district...there's nothing new here. We've got good science, good law...the issue is who do you want behind the wheel of the greatest killing machines on the planet, a car...and if we have a scientific way to say that at this point in their blood they should not be driving...this helps you affectuate that. Good science, good law, good common sense, good bill.


Rep. Lee "how do we address the patients who might have a higher do we address that they might be per se guilty."


Raynes: "They have to make a decision, fundamentally they have to make a decision like anyone under the influence of a controlled substance...presuming they get the same kind of advice from those giving them the medicine...patients will know they shouldn't be behind the wheel within 2 hours of taking their medicine."