When most people hear the term “DUI,” they normally think of someone having a too many drinks at the bar before getting behind the wheel. While it is true that most DUIs are alcohol related, with the movement towards marijuana legalization in many states, the number of arrests for driving under the influence of drugs continues to increase. Attorneys and the courts often refer to those cases as DUIDs (Driving Under the Influence of Drugs). DUID cases typically fall into one of three categories:
What Does Driving Under the Influence Mean in Colorado?
In Colorado, the law states that someone is guilty of DUI if they drive a motor vehicle “when a person has consumed alcohol or one or more drugs, or a combination of alcohol and one or more drugs, that affects the person to a degree that the person is substantially incapable, either mentally or physically, or both mentally and physically, to exercise clear judgment, sufficient physical control, or due care in the safe operation of a vehicle.” C.R.S. §42-4-1301(1)(f).
What Does Driving While Ability Impaired Mean in Colorado?
Driving While Ability Impaired (DWAI for short) is related to DUI, but the impairment level is different. While DUI laws provide that a driver must be “substantially incapable” of exercising clear judgment, physical control, or due care in operating a vehicle, a DWAI occurs when drugs or alcohol affect the driver’s ability to safely operate the vehicle “to the slightest degree.” Compared to the “substantially incapable” language of a DUI, being impaired to the “slightest degree” is a much lower bar for police officers and district attorneys to prove.
How Does a Law Enforcement Officer Measure Drug Impairment in Colorado?
Presumably, everyone is familiar with the legal limit when it comes to alcohol, a blood alcohol content (“BAC”) of .08%. The .08 figure is based upon nearly a century’s worth of research and study on the effects of drinking and driving.
There is no such consensus when it comes to driving under the influence of drugs, especially marijuana, because THC (the active ingredient in cannabis) is not the same as alcohol. It reacts differently in the body, metabolizes differently, and affects your driving ability differently.
In an attempt to address this issue, Colorado and other states have enacted various statutes which impose somewhat arbitrary levels of active THC in a driver’s system. In Colorado, the presumptive limit is 5 nanograms (a nanogram means one part per billion) of active THC per milliliter of whole blood (ng/ml).
There are four tests that can be administered to determine if you have been using marijuana (blood, hair, saliva and urine), and only two of those can measure the amount of active THC in your system (blood and urine). None of those tests can be administered roadside, such as the breathalyzer test to measure alcohol, so the majority of DUID tests are made using a blood draw at a hospital.
How Reliable are the Tests?
According to the National Highway Traffic Safety Administration, it is a mixed bag; current tests can certainly tell you when marijuana is present in a driver’s system, but the real question is whether these tests are measuring impairment. Unlike alcohol, there is no straight line that you can draw between the amount of active THC in a driver’s body and the impairment of a driver’s ability to safely operate a vehicle, like you can do with alcohol. At present, there is no level of active THC, no number you can identify, that directly correlates with impairment in the way that .08% does for alcohol.
Quick history on testing for alcohol: Drinking and driving is as old as driving itself, but it took us years to even think of drunk driving as a problem, or identify the impairing effects of alcohol, such as loss of motor coordination, hand-eye coordination, or slowed reflexes. As the use of cars and trucks became more commonplace, the number of car crashes increased, as did the number of traffic fatalities. Statistics showed that drunk drivers made up a large percentage of the people involved in motor vehicle crashes, and fatal car crashes. Highway safety became a concern, so we came up with finding a way to measure the amount of alcohol in our blood, and the impose limits on those amounts based upon years of research. It turns out that .08% blood-alcohol level, for most people, is the point at which ones ability to safely operate a vehicle is impaired. Differences in weight or sex can move that BAC up or down, but on the whole, .08% is the diving line.
Quick history on testing for marijuana testing: during our recent history when marijuana / cannabis was illegal everywhere (before legalization efforts here and in California, Oregon or Washington) drug testing for marijuana use was simple: look for cannabinoids in a urine sample. The most common metabolite tested for, carboxy THC, could only indicate prior marijuana use (sometimes up to thirty days); it did not measure active THC, the part that makes you feel “high.”
Modern tests, those used by the Colorado Springs Police Department and other law enforcement agencies, are able to measure the amount of active THC in your bloodstream. The problem is, the number of nanograms of active THC, limited to 5 in Colorado, can vary wildly from person to person, from minute to minute, for any number of different reasons, such as sex, weight, metabolism, or the manner in which marijuana was taken, smoke, edibles, THC-infused drinks, and how often the individual takes marijuana (daily smoker versus occasional user).
According to the NHTSA report from 2017: “research has demonstrated the potential of marijuana to impair driving-related skills.” Stoned drivers have slower reaction time and distorted perception of time. A a Denver Post investigation showed that “the number of drivers in fatal crashes testing positive for marijuana – though not necessarily high – is rising sharply, and coroners are finding higher levels of potency in their tests.” According to the Colorado Department of Transportation, in 2019 there were 49 fatalities involving a driver with Delta-9 THC above 5 ng/ml.
However, the NHTSA report acknowledges that not all scientific studies come to the same conclusion. Case in point, a 2015 NHTSA study from Virginia concluded marijuana users had the same chance of crashing as sober drivers.
How can an Attorney Help Me?
An attorney can help you:
- Evaluate your case for motions issues;
- Obtain experts to provide helpful expert testimony at trial;
- Re-test blood samples to verify the accuracy of the state’s blood test;
- Negotiate the best achievable outcome with the prosecution possibly including;
- Reduce or eliminate jail time (or in home detention depending on the jurisdiction and circumstances);
- Reduce the level of the charges;
- Reduce Useful Public Service
- Obtain a deferred sentence
- Obtain a lower level and shorter term of probation;
- Obtain Reduced or suspended fines;
A criminal defense attorney who understands the science, and more importantly the limitations, of cannabis use and marijuana testing can use that knowledge to defend you. Do you use marijuana every day? Your baseline active THC number could be over the 5 ng/ml prescribed by the state. Did you smoke a joint or consume an edible? Marijuana smokers see an immediate spike in active THC numbers and the high is nearly instantaneous, whereas eating an edible can take up to an hour before the THC is metabolized and you feel the influence of marijuana.
If you are going to have any chance of avoiding the penalties and consequences associated with a DUID conviction, you need someone on your side to protect you, your license, and your freedom.