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As of January, 2014, residents of Colorado that are 21 years of age or older are allowed to purchase up to one ounce of Marijuana. Visitors from out of state are allowed to purchase up to one-quarter ounce. Residents are also allowed to grow up to six marijuana plants. Colorado’s Driving Under the Influence laws have evolved to make it possible to prosecute Marijuana DUI cases. The fact that marijuana is now legal in Colorado doesn’t mean you can smoke marijuana or consume THC in other forms and then get behind the wheel without worrying about a DUI.
Denver police will now be asking those suspected of driving under the influence of marijuana to submit to take a blood test, as there is no breath test for the presence of marijuana in the blood. The legal limit has been set at 5 nanograms of THC in the blood of the driving suspect. A blood level of 5 nanograms of THC or higher does not constitute “DUI Per Se,” meaning that such a test result does not automatically mean a jury should reach a guilty verdict. The defendant has the right to rebut this conclusion, and offer evidence that that there was no impaired driving as a result of marijuana consumption. However, the prosecution has the advantage of their being a presumption of guilt with a test result of 5 nanograms or higher.
This has set the stage for complicated legal battles around what most experts would agree is a fictitious blood THC limit. The Colorado State Legislature would like to make the prosecution of these offenses black and white, as with alcohol cases. The problem with this approach is that marijuana and alcohol act very differently in a person’s body. Alcohol increases in the blood stream when it is consumed, then disappears relatively quickly from the blood stream – in a manner consistent with the impairment effects of alcohol. In other words, when the blood alcohol level decreases, the impairment effects decrease with it. Marijuana is precisely the opposite. After consuming marijuana, the blood level of THC increases, but the person’s blood will test positive for elevated levels long after the impairment effects have worn off. In fact, for regular pot users, they would test at elevated levels long after any psychoactive effects of the drug have worn off – even days or weeks later. This means that even if you haven’t consumed marijuana for days, you could still be convicted of a DUI based on officer observations of your driving, and the fact that you have more than 5 nanograms of THC in your blood. This is true even if you aren’t at all impaired or actively under the influence of anything.
THC, the active ingredient in marijuana, is a fat-soluble substance. For this reason, it is not excreted from the body very quickly. It remains dissolved in the fatty tissues of the human body, and blood, for an extended period of time. This is why drug tests for THC can show positive results for weeks after the person last used the drug. Conversely, alcohol levels will reach zero, usually within several hours of use, depending on the amount that was consumed.
Driving tests have shown that regular marijuana users that tested with 15 nanograms of THC in their blood, three times the legal driving limit, had no trouble driving whatsoever. Yet, when a marijuana DUI case now goes to trial, the defendant will face an unfair “presumption” of guilt based on a blood test result that has no actual meaning. The defendant will likely testify that they are regular pot users, to explain why they had elevated blood THC levels, yet were not under the influence at the time they were arrested. The use of expert witnesses has become essential in order to educate juries that the blood limit of 5 nanograms has no meaning in a case where the defendant regularly uses marijuana.
Without an expert witness testifying on your behalf in a marijuana DUI case, you could find yourself facing a conviction when you absolutely were not impaired and were capable of safely driving. An expert witness can explain to the judge and/or jury that a person can have THC in their bloodstream but not be actively under the influence of marijuana. When you hire experienced DUI attorneys, they will have expert witnesses available and on call that they work with and trust to testify effectively on your behalf. It’s likely that the district attorney will also have their own expert witness to try and rebut your expert’s claims and explain to the judge or jury why they should convict you of a DUI.
With recreational use of marijuana now being legal for anyone over 21, many members of the population will have a blood level over 5 nanograms days or even weeks after their last use of the drug. It might seem that the 5 nanogram presumption is a good thing because it means the marijuana DUI laws aren’t zero-tolerance. This means it isn’t a DUI per se, (automatically) just because you have marijuana in your system. However, this limit and presumption may not actually benefit defendants. It can lead the jury to believe that if a person is above this limit, it must mean that they were somewhat intoxicated or unable to drive safely. This is due to a lack of understanding rather than the reality of the situation.
This can lead to terrible results for the legal system. For example, imagine an auto accident where death results, and the driver that survives produces a positive blood test. The driver may be presumed to be under the influence, which supports the charge of vehicular homicide, even in cases where the driver was not at all impaired by drugs. The defendant will have to defend against this unfair presumption in order to avoid a lengthy prison term for being wrongfully convicted of vehicular homicide.
The penalties you face for a marijuana DUI can be extreme, and they become more severe with each subsequent DUI conviction. It’s important to know the penalties so you know what you’re facing. An experienced criminal defense attorney can help explain them to you, but generally speaking, marijuana DUI convictions carry the following consequences:
Driving Under the Influence charges have always involved very complicated evidence. The legalization of the recreational use of marijuana, along with the passage of the misleading 5 nanogram blood limit, has added a new layer of complication to the defense of these cases. It is more important than ever to have expert legal help if you are facing these charges. Contact us today at 303-832-9000 or use our easy online contact form to schedule a free consultation.