Marijuana: Rob Corry thinks THC driving limits may violate constitution, disabilities act
Yesterday, HB 1261, Representative Claire Levy's bill to set THC driving limits, survived its first legislative test, passing out of committee by a 6-2 vote. But medical marijuana attorney Rob Corry continues to argue against the bill -- see his letter to legislators below. In his view, the measure won't make roads safer and could spur lawsuits.
"There will be extensive litigation," he allows. "First and foremost, there'll be a drastic increase in the amount of people criminally prosecuted. Many of those people will hire lawyers, and some of them may hire me -- and if they do, I'll certainly assert the unconstitutionality of this new bill as a defense in the criminal case. And I will also evaluate whether to bring an action under the federal Americans with Disabilities Act."
Such an approach would certainly be unusual from a legal standpoint. After all, the ADA is a federal law -- and marijuana continues to be illegal in the eyes of the feds whether or not it's being used for medical purposes. But, in Corry's words, the ADA "prohibits government from discriminating against someone because of their disability -- which is exactly what this does. And passing a one-size-fits-all five nanogram standard is not an accommodation."
Numerous MMJ advocates suggest that cannabis use doesn't impair driving ability -- an assertion that may seem strained to folks who've either experienced impairment when using marijuana recreationally or have seen others in that condition. But Corry believes that the situation is different for patients.
"There may be a case where an occasional recreational user who might smoke a joint on a Friday night once a month could be impaired immediately after consuming a significant quantity," he concedes. "But the same analysis does not apply to a medical user who is merely following a doctor's recommendation. That person is in the position of being able to compensate for any effects the medicine can have. Many patients tell me that, for them, medical marijuana doesn't have any psychoactive effects that would cause them to feel high. They tell me, 'All it does is eliminate the pain,' and they don't see that as being high. They see it as eliminating a debilitating condition. So patients have an entirely different perspective than the occasional user.
"Also, science is literally all over the place on this issue. I'm not a scientist by trade, although I have a background in it, and science can't agree on what the number should be. I think the legislature chose the number 'five' somewhat arbitrarily. I'm not sure why it wasn't four, or why it wasn't six. And theoretically, the government is not allowed to act in an arbitrary fashion."
Besides, Corry notes, "as far as the government's concerned, it's already illegal to operate a vehicle when impaired by marijuana. So the view that it's perfectly legal to drive stoned is simply false. It's not legal to drive impaired on Oxycontin, it's not legal to drive impaired on any medication. But just taking medication doesn't mean a patient is automatically impaired. And marijuana is a medication, which is very different from alcohol. Alcohol isn't a medicine, and the right to use marijuana medically is in the Colorado constitution."
That said, Corry isn't dead-set against any bill dealing with THC impairment. Indeed, he could live with the five nanogram standard as long as the bill would establish "an affirmative defense -- namely, that they're a medical marijuana patient, they have a doctor's recommendation, and they understand its effects and compensated for them, especially if there's no evidence of bad driving.
"The majority of DUI incidents don't involve an accident. Quite frequently, people are pulled over for something like speeding, which isn't evidence of impairment, and a police officer smells marijuana. At that point, people will immediately assert their status as a medical marijuana patient, thinking that's a positive thing -- but it often brings hot coal down on their head, because law enforcement will then charge them with a DUI. That's already happening, and this bill would open that up and make the situation even worse."
Corry adds that "Representative Levy is one of the more thoughtful legislators over there, and I think her intentions are good. So it's difficult for me to come out so strongly against the bill. But the effect of this bill is going to be hugely negative for patients. That's why I'm coming out against it."
Page down to read Corry's letter to legislators opposing HB 1261, as well as the bill itself: