Marijuana advocates to argue against Claire Levy bill setting THC driving-impairment limits
Update: Yesterday, the Cannabis Therapy Institute issued a press release that included an e-mail from attorney Lauren Davis criticizing HB 1261, Representative Claire Levy's bill to establish THC driving limits. Today, Davis has sent out a second e-mail acknowledging that some of her points in the initial note were "OVERSTATED and incorrect" and straightening out the facts. That doesn't mean, however, that she no longer objects to HB 1261.
"My conclusion is basically that if the legislature is going to set a per se limit, it needs to be a higher limit regardless of whether there's rebuttable presumption," she says. "Rebuttable presumption really shifts the burden to the defendant to prove that he wasn't under the influence, and the current standard allows the district attorneys to exercise prosecutorial discretion to determine if there's evidence other than just what the level is in a person's bloodstream as to whether they were driving while impaired, even to the slightest degree.
"That's what the law on driving while impaired is supposed to be about -- getting the drivers off the road who pose a danger because they're impaired. But there are a lot of cases where somebody's pulled over for speeding, which isn't a sign of impairment, and throughout the course of the contact, the cop is finding factors he's using to try to establish probable cause. But if you have just a 5 nanogram standard, which some patients are at all the time, they basically aren't going to be able to drive at all."
Below, find Davis's clarifying e-mail, complete with an excerpt from medical marijuana physician Dr. Bob Melamede, followed by our original coverage:
Lauren Davis e-mail clarification:
My statement in my previous email that there is no correlation between 5 ng and impairment was OVERSTATED and incorrect. You should be aware that there are some studies that show a correlation between 5ng and impairment, albeit with many, many caveats that I neglected to educate you about. So I am writing this to correct and clarify that statement. Please -- do NOT argue what I said to the legislature (that there are no studies showing this...), as it is wrong. Your argument needs to be much more fine-tuned.
If you scroll to the bottom, you will find information from Dr. Bob Melemede that more accurately sums up the studies and the point I got carried away making.
In the meantime, here is some other information, based on studies, for your information, which I cite in an attempt to explain why the legislature's proposed per se 5ng/ml is dangerous for patients. If the legislature is going to impose a per se limit, the limit needs to be higher:
To date, scientists have had difficulty assessing to what degree and at what levels cannabis is a causal factor in traffic crashes. Unlike alcohol, which affects the brain in a broad, non-specific fashion, drugs often operate on a much more complex level. And, cannabis, even more than other drugs, has a variable effect on impairment; this is apparently a well recognized and widely reported phenomenon. See The Influence of Cannabis on Driving, Prepared for Road Safety Division, Department of the Environment, Transport and the Regions, TRL Report 477, p3. This means that one person can be impaired when their blood plasma is at 5 ngml, but another individual (likely a patient or more regular user) will not show any impairment. Some international studies have found that "for up to two hours after a dose sufficient to give a 'high', there is impairment of the same order as alcohol at around the drink-drive limit," but those studies equate the dose to be 11 ng/ml, twice as high as the legislature is proposing. Id at 5. And, in a study sponsored by the US DOT,NHTSA, scientists concluded that driving impairment cannot be predicted on the basis of an individual's plasma concentrations of THC from a single sample.
"Interpreting the meaning of either drug/metabolite concentration in a single biological specimen..with reference to impaired driver performance is...an extremely difficult task." ICADTS Working Group Report - "Illegal Drugs and Driving" May 2000. "The interpretation of drug concentrations in biological fluids especially with regard to behavioral-effect requires some knowledge about the dose, the route of administration, the pattern or frequency of drug use, and the dispositional kinetics (distribution, metabolism and excretion) of the drug." See ICADTS report. The current legislative proposal does not account for these variables.
The point I was trying to make (albeit inartfully) is that relating absolute levels of THC in blood to an objective effect on a driver's ability to operate a motor vehicle is a very complex and difficult task, and one that will end up making criminals out of patients, based on inadequate scientific research. While a few studies show 5 ng correlates to impairment, there are many caveats to these findings (e.g. novice users vs consistent users/patients; metabolic issues; etc) And many other studies have concluded that there is NO statistically significant correlation between driving and impairment until a driver is at a higher level. In a laudable effort to ensure our roads are safe, the legislature is going to criminalize non-criminal conduct if it sets a per se level of 5 ng./ml.
The reason for the crime of driving under the influence is that a person's ability to drive is impaired. Current DUID laws allow police and prosecutors latitude and discretion to ensure that the law appropriately punishes those whose driving demonstrates impairment based on factors such as accidents, slow reaction times, etc., the real dangers the legislature is concerned about.
EXCERPT FROM DR. BOB MELEMEDE
Subject: tolerance of heavy cannabis users and impact on driving skills
Hi All, in recognition of Colorado state's regulatory efforts to balance the need to protect it's citizens from impaired drivers, with an appropriate science-based protection of basic rights of the states medical marihuana patients, I am providing you with some peer reviews scientific articles that I hope will shape your views especially with regard to the 5ng/ml plasma THC level under consideration.
As you can readily see in table 2 of the attached article (the relevant portion shown below), the plasma THC concentration in the baseline control subjects (consisting of heavy cannabis users with an average age of 23.2 years) was already well above proposed limit for determining impairment.
Furthermore, the author's conclusions based on performance tests, were fully consistent with previous studies that demonstrated limited impairment caused by THC in regular cannabis users.
"Previous research has demonstrated that daily cannabis users are less sensitive to the impairing effects of Δ9- tetrahydrocannabinol (THC) intoxication on cognitive and psychomotor functions (D'Souza et al. 2008; Hart et al. 2001; Jones et al. 1981; Ramaekers et al. 2009) that have often been demonstrated in occasional cannabis smokers (Curran et al. 2002; Hart et al. 2002; Heishman et al. 1989; Lamers and Ramaekers 2001; Ramaekers et al. 2004; Ramaekers et al. 2006a), even when THC concentrations and levels of subjective high are similar (Ramaekers et al. 2009) This loss of sensitivity or tolerance to the behavioral effects of THC after prolonged use is believed to result from a change in pharmacodynamic response as evinced by CB1 receptor downregulation in large parts of the brain (Gonzalez et al. 2005). Alternatively, it has also been suggested that heavy cannabis users recruit alternative neural networks as a compensatory mechanism during task performance. Eldreth et al. (2004) and Kanayama et al. (2004) showed that compared with controls, cannabis users utilized additional brain regions to perform cognitive tasks, i.e., they compensated by working harder and recruiting compensatory networks."
The authors further concluded:
"THC did not affect performance of heavy cannabis users in the critical tracking task, the stop-signal task, and the Tower of London. These tasks have previously been shown to be very sensitive to the impairing potential of THC when administered to infrequent cannabis (Ramaekers et al. 2006a)."
They also noted:
"However it was interesting to note that tolerance was not apparent in all performance tasks. During divided- attention task performance, THC increased the number of control losses and reaction time and decreased the number of correct signal detections. Number of times that subjects lost control over the primary task (tracking) during this dual task performance appeared particularly sensitive to the impairing effect of THC." It is worth noting that sleep deprived subjects also show performance deficits in this task.
In view of the above data, the proposed regulatory plasma limit would unfairly single out sick medical marijuana patients as being impaired through the use of criteria that were inappropriate for this population. Furthermore, infrequent users will tend to have lower THC concentrations while being more impaired, thus defeating the very purpose of the regulations. In view of the above peer reviewed science, setting inappropriate THC plasma levels would needlessly harm patients and burden the judicial system.
It would make a lot of sense to test for both THC and alcohol to determine impairment. The 5 ng/ml would probably make sense when determined in conjunction with the alcohol level.
I have also attached an study that examined marijuana as a potential causative agent for automobile accidents in Colorado. The authors concluded "Alcohol remains the dominant drug associated with injury- producing traffic crashes. Marijuana is often detected, but in the absence of alcohol, it is not associated with crash responsibility."
Thank you for your consideration,
Original post, 9:35 a.m. March 8: HB 1261, Representative Claire Levy's bill to establish THC driving limits, comes up for public comment on Thursday afternoon, and marijuana advocates affiliated with the Cannabis Therapy Institute are likely to show up in force to oppose it. Why? Among other reasons, the organization rejects the idea that THC can be equated to alcohol in terms of causing driving impairment and suggests that the standards set by the bill are fatally flawed.
Immediately below, find a Cannabis Therapy Institute release featuring information about the hearing and an argument against the measure provided by medical marijuana attorney Lauren Davis. Then page down to read HB 1261 in its entirety, as well as to check out CTI's "Action Alert" about the bill.
Cannabis Therapy Institute release:
THC/DUI Bill Hearing on Thursday (3/10)
House Judiciary Committee Hearing on HB 1261
DATE: Thurs., March 10, 2011
LOCATION: Hearing Room 0107, basement, state Capitol Building, 200 E. Colfax, Denver, CO (Note, this room only seats about 40 people so arrive early. There are 3 other bills on the agenda before the DUI bill.)
Capitol Bill Room (for last minute changes): (303) 866-3055
Attire: Dress to Impress
Provisions: Bring food and water, as the hearing may last a while.
Sign up on CTI's email list for updates:
LISTEN LIVE ONLINE
You listen online to the House Judiciary ommittee hearing:
HB1261 would declare that anyone found driving with 5 nanogram/milliliters or more of THC in their bloodstream would be guilty of "DUI per se" and subject to a misdemeanor offense and the possible revocation of their driver's license. Click here for more info: http://www.cannabistherapyinstitute.com/bills/dui/
FROM ATTORNEY LAUREN DAVIS:
On Thursday, March 10, the House Judiciary Committee will hold a Hearing on HB 11-1261, the DUI/THC bill. Rep. Claire Levy has sponsored a bill that will set a per se 5 ng/mL limit on THC in the bloodstream. This means that if you get pulled over and are suspected of driving under the influence, if blood or urine tests show your THC levels are above 5 ng, you essentially will have NO defense to the charge of driving while impaired. The DA will not have to show your driving was poor or impaired to "even the slightest degree." The law will put the burden on you to overcome that presumption -- a battle you will lose.
This bill is EXTREMELY problematic for many practical reasons. There is NO research showing that 5 ng/ML of THC corresponds to any impairment in drivers (unlike with alcohol BAC, where numerous studies have shown that drivers demonstrate impairment at .05.) In fact, most studies have not been able to show any correlation between THC and driving impairment, even at significantly higher levels of THC ingestion.
Moreover, some jurisdictions contract with private labs to test your THC levels, and these labs consistently over-report and incorrectly report THC levels. The criminal defense bar has tried to remedy this with no avail. Under this bill, these labs will be inundated with testing and will likely provide even less accurate results. I have a client who spent tens of thousands of dollars to defend himself against an erroneous DUID charge -- the labs results were GROSSLY in error. After spending thousands of dollars paying a private lab to re-test the THC levels, we proved he had no THC in his blood. Can you afford to do spend that?
Please show up to speak against this bill. Being convicted of a DUID (driving under the influence of drugs) will have HORRIBLE life-long and life-altering consequences for you. Not only will you automatically lose your driver's license for up to a year, you will be subject to higher insurance premiums for life; you also could lose your health insurance, your professional license, your job, not be able to travel to many foreign countries (including Canada) and much more.
And, most importantly, in many jurisdictions in CO, you will no longer be able to use your physician recommended medical marijuana once you are convicted. No matter what your medical need, a Judge will have the authority to tell you you cannot medicate with THC. And despite multiple attorneys' attempts to appeal this issue to a higher court, the Court of Appeals refuses to review this probation requirement.
It is essential that we get the legislature to VOTE NO on this bill. Please pull out all stops to make your voice heard.
Lauren C. Davis
Attorney At Law
600 17th St., Suite 2800
Denver, CO 80202
Page down to read HB 1261 and see a Cannabis Therapy Institute "Action Alert" about the bill.