Marijuana advocates to argue against Claire Levy bill setting THC driving-impairment limits

claire levy photo cropped.jpg
Claire Levy.
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,
drbob

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.)
TIME: 1:30pm

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:
http://www.CannabisTherapyInstitute.com

LISTEN LIVE ONLINE
You listen online to the House Judiciary ommittee hearing:
http://www.coloradochannel.net/

BACKGROUND
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
303-634-2268

Page down to read HB 1261 and see a Cannabis Therapy Institute "Action Alert" about the bill.

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Room Change for Hearing
Room Change for Hearing

ROOM CHANGE: THC/DUI Bill Hearing on Thursday (3/10)House Judiciary Committee Hearing on HB 1261

DATE: Thurs., March 10, 2011

TIME: 1:30pm

*** ROOM CHANGE: Now in the Old Supreme Court Chambers, 2nd Floor, stateCapitol Building, 200 E. Colfax, Denver, CO

Capitol Bill Room (for last minute changes): (303) 866-3055

*** LISTEN LIVE ONLINE ***You can listen online to the House Judiciary committee hearing in he OldSupreme Court Chambers:http://www.coloradochannel.net...

*** IMPORTANT: HAVE REAL-TIME IMPACT ON THIS HEARING ***Many of the Reps. read their email during these hearings. If you hearsomething you disagree with when you listen live online, you can send thecommittee members an email, and there is a good chance they will see it. Itis very important is people to email the Reps. with links and researchrefuting any law enforcement misinformation. The citizens who attend thehearing only have 2 minutes to speak, but by sending emails to the Reps.during the hearing, you can actually have a very big impact.

Colorado House Judiciary Committee Emails

bob.gardner.house@state.co.us, mark.barker.house@state.co.us,brian@briandelgrosso.com,crisanta.duran.house@state.co.us,repkagan@gmail.com,pete.lee.house@state.co.us, claire.levy.house@state.co.us,rep.nikkel@gmail.com, su.ryden.house@state.co.us,jerry.sonnenberg.house@state.co.us, mark.waller.house@state.co.us,info@cannabistherapyinstitute.com

BACKGROUNDHB1261 would declare that anyone found driving with 5 nanogram/millilitersor more of THC in their bloodstream would be guilty of "DUI per se" andsubject to a misdemeanor offense and the possible revocation of theirdriver's license. Click here for more info:http://www.cannabistherapyinst...

Sign up on CTI's email list for updates:http://www.CannabisTherapyInst...

---Provided as a Public Service by the:Cannabis Therapy InstituteP.O. Box 19084, Boulder, CO 80308Phone: 877-420-4205Web: www.cannabistherapyinstitute.c...Email: info@cannabistherapyinstitute.com

From Lauren Davis
From Lauren Davis

From: laurendavislaw@hotmail.comMarch 8, 2011, 7:23pm

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 ng, 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 very 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, drbob

Ramaekers, J. G. et al. Tolerance and cross-tolerance to neurocognitive effects of THC and alcohol in heavy cannabis users. Psychopharmacology (Berl) (2010).

Lowenstein, S. R. & Koziol-McLain, J. Drugs and traffic crash responsibility: a study of injured motorists in Colorado. J Trauma 50, 313-320 (2001).

Lauren C. DavisAttorney At Law600 17th St., Suite 2800Denver, CO 80202

303-634-2268

Michael Roberts
Michael Roberts

Lauren, thanks for sharing this info, which we've now incorporated into an updated version of our post.

solar_satellite
solar_satellite

Lauren, you are right that we should not overstate our case, but I believe that the issue is fairly straightforward. Minor deficits in eye-tracking noted under laboratory conditions are mitigated by other effects of cannabis, i.e. drivers' tendency to follow less closely and reduce their speed. More to the point, data on accidents simply do not support the misconception that cannabis impairs driving performance. People involved in accidents who used ANY illicit drug had an increased rate of accidents less than that of drivers with a blood alcohol level of .05%. Most illicit drugs impair motor coordination or alter perceptions more than cannabis, so it is safe to infer that any negative effect of cannabis on driving is still less. I believe that quibbling over the number inappropriately distracts us from the essence of the matter -- there is no reason to believe that imposing such a limit would make anyone safer; there is no scientific basis for it.

offscreen
offscreen

Sorry, but science doesn't matter here. This is all about politics and grandstanding politicians. All the scientific evidence in the world won't change anybody's vote on this issue. If you are looking for political courage, you won't find it in this legislature, nor in congress, for that matter.

solar_satellite
solar_satellite

Science matters generally. I am not looking for political courage; see the first comment. It is important to get the truth into the record regardless of the machinations of our craven legislature.

Brandt Hardin
Brandt Hardin

Marijuana is the safest drug with actual benefits for the user as opposed to alcohol which is dangerous, causes addiction, birth defects, and affects literally every organ in the body. Groups are organizing all over the country to speak their minds on reforming pot laws. I drew up a very cool poster for the cause which you can check out on my artist’s blog at http://dregstudiosart.blogspot... Drop in and let me know what you think!

GetReal
GetReal

It will be interesting to see if they will be able to convict anyone on this law. It will make a most interesting trial. I don't see how a prosecutor will be able to prove (beyond a reasonable doubt) that the driver was impaired. I'm betting that the defense will have enough medical witnesses to throw this out. But at least this way the ignorant leaders can show the ignorant population that they are doing something positive.

Patient
Patient

They won't have to prove impairment. Over 5 ng and your impaired.

GetReal
GetReal

Cannabis stays in your system for up to 30 days. Are you referring to that night a week ago that I consumed some cannabis?

GetReal
GetReal

How does that impair my ability to drive today?

solar_satellite
solar_satellite

People are being sentenced for driving under the influence of drugs all the time, even without Levy's "bright line" -- HB11-1261 may or may not significantly increase the number of those falsely convicted, but legislators will derive satisfaction from squeezing one more lie into our statutes

Matt McLaughlin
Matt McLaughlin

Doesn't a transportation worker get 14 nanograms and still keep his job per 'safety-sensitive'jive?

Guest
Guest

As a CDL holder I can say NO.

Patient
Patient

can you confirm this?

Decs
Decs

As usual, spreading fear and loathing throughout the populace. Wasn't Reefer Madness made over 50-60 years ago? Really nice, Claire, demonizing yet ANOTHER group so you look like one of the cool kids. Try again.

The Releaf Center
The Releaf Center

Even the language in the bill shows a fundamental misunderstanding of medical marijuana. THC is only one cannabinoid present. Would a strain high in cannabidiol (CBD) produce a false positive, or would those drivers slip under the radar? Either way, a patient who medicates with CBD would be mistaken for a patient using THC, forcing them to take an unnecessary blood test.

solar_satellite
solar_satellite

There is one Party in America, the Fascist Party, although it is divided into the Greater Fascists and the Lesser Fascists. The Greater Fascists tried to ban all edible cannabis a week ago. Not to be outdone, Claire is championing a ban on patients driving for the Lesser Fascists. Both factions busy themselves trying to find some fear they can fan and exploit. The vote on HB11-1261 will accurately reflect the stupidity and hypocrisy of our legislators -- it may be unanimous.

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