THC Presumptive Inference—Too Presumptuous?

On May 7, 2013, the Colorado Senate gave the final votes needed to pass marijuana legislation that will create a presumptive inference when a driver has 5 nanograms or more of Delta-9 THC per milliliter of whole blood. This bill will allow juries to infer that in a DUI case, a blood test result that shows 5 or more nanograms of THC equates to impairment.

The Colorado legislature has not provided much reasoning why they believe 5 nanograms is the appropriate presumptive inference limit. Furthermore, as most experienced Colorado DUI defense attorneys would agree, the science involved in determining whether the average person is impaired at 5 nanograms is complex and produces inconsistent answers. For instance, the THC legislation does not distinguish between inactive metabolites of THC and active THC. Therefore, a heavy medical marijuana user who has not been using prior to driving could presumably be considered impaired based on the arbitrary 5 nanogram marker even though they were not impaired by THC, but because some blood test produces a number greater than 5. Additionally, there are no consistent or reliable studies available on whether 5 nanograms is an appropriate impairment marker. In fact, as one CNN study has shown, 5 nanograms is likely too low of a limit.

Regardless of whether DUI lawyers believe the limit is appropriate, the legislature has spoken, and 5 nanograms will now be a marker for impairment. Therefore, if you are currently a medical marijuana user, or a recreational user under Amendment 64, then be aware that you are taking a risk every time you drive. The amount of time the body takes to eliminate active or inactive THC depends on the user’s frequency of use and various other variables. Therefore, there is no accurate way to predict how long it will take before a marijuana user is safe to drive after use.

If you are accused of DUI based on marijuana, do not hesitate to contact an experienced Denver DUI lawyer who can help you navigate the complexities of the criminal process.

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