Colorado’s House Committee on Business Affairs and Labor yesterday approved HB19-1230, a bill creating “Marijuana Hospitality Establishments” so purchasers of “legal” marijuana would have public places to consume their drug of choice.
Patrons driving home after consuming marijuana at a hospitality establishment could be impaired. If that impairment is caused by inhaled THC, almost half of those drivers can be arrested, prosecuted and convicted of DUI. But if their impairment was caused by THC edibles, their conviction is very unlikely under Colorado’s 5 ng permissible inference law. Here’s why.
Blood levels of THC spike very quickly after starting to smoke pot and decline almost as quickly, leaving only marijuana’s non-psychoactive metabolite detectable in blood after a few hours or so. But blood THC levels from edibles as shown by the blue line do not behave that way at all.
A 2017 study showed that blood THC levels don’t rise above 1 ng after consuming the 10 mg dose, and don’t even rise above 3 ng after consuming five times that dose. Would these people be successfully prosecuted after a DUI arrest? The answer is no. Not under current Colorado law.
The bill as introduced limited the sale of edibles at a “Hospitality Establishment” to no more than 10 mg. The committee amended the bill to remove those limits.
DCJ’s 2018 report found that DUI convictions were uniformly higher for alcohol than for THC. Only 1 out of 7 Drivers who tested below Colorado’s 5 ng limit were convicted of DUI. Now lest you think that was because these drivers were not impaired, I call your attention to the fact that over 90% of those drivers were found guilty of DWAI, so they were indeed impaired. Officers can and do identify THC impairment. Prosecutors are doing their job. The law isn’t.
Until Colorado changes its scientifically-invalid, prosecutorially-ineffective and judicially unsound 5 ng THC permissible inference law, it is irresponsible to pass HB 1230. Doing so would desecrate the graves of victims killed by drivers who were determined by experts to be THC-impaired, yet escaped DUI conviction because they tested below 5 ng. DUID victims believe this is morally reprehensible.