Russell Hebets July 29, 2015

The Colorado legislature recently enacted a 5 nanogram limit on driving under the influence of marijuana. This law finally passed after many, many previous attempts. Legislative sessions were battlegrounds, with the players being various experts each extolling their limited knowledge on how marijuana effects people, and at what level this affect occurs. The reason that it failed so many times before finally passing is simple, and leads us to our first reason why Colorado law has it wrong.

1.  The science behind stoned driving is not settled.

If you look at the science community in the United States, you will find virtually everything being studied, from fruit fly mating habits to weather patterns is southwest China and their influence on humidity in Manhattan.  However, when you look at peer reviewed marijuana studies, there is a gaping black hole.  Turns out nobody can get funding for studies that study illegal substances.  Also, there’s the little problem of scientists potentially getting thrown in the can for the content of their research.  Marijuana is still illegal federally, so although the legalization of marijuana in several states has increased scientific access to marijuana, we still know astonishingly little about marijuana effects and corresponding THC levels across various users.

2.Colorado law puts the burden in the wrong place.

Most people have heard that defendants who are charged with a crime are innocent until proven guilty.  The 5 nanogram limit that Colorado legislature recently enacted allows a permissive inference to be made that the defendant was impaired by marijuana.  While this wording still allows for someone to contest the charge, it sure makes it a lot harder.  Rather than “innocent until proven guilty,” what the law says is essentially: “prove to the jury that you are innocent.”  This flies in the face of the basis of our criminal justice system which was built on the premise that we would rather see 9 guilty men go free rather than have 1 innocent man unjustly incarcerated.

3.The 5 nanogram limit is arbitrary.

The legislature has essentially said that they believe that there is some likelihood of impairment at 5 nanograms of THC in a person’s blood near the time of driving.  The problem with this is that there is no evidence that 5 nanograms is where this line should be drawn.  We know that people react differently to marijuana, we know that habitual users maintain a higher level of marijuana in their systems for longer periods of time, and we know that there is an element of tolerance in marijuana users.  The new law fails to take any of these factors into consideration and created a one-size fits all approach to driving while stoned.