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Wednesday July 30, 2014

By Jeff Gard


Jeffrey S. Gard is a lawyer focusing on criminal defense and the emerging marijuana industry.  For the last two decades, he has litigated hundreds of cases, many through trial, in both state and federal courts. Jeff also successfully litigated and argued cases before the Colorado Court of Appeals and the Colorado Supreme Court.  Additionally, Jeff represents numerous medical marijuana patients, doctors and marijuana businesses throughout the state of Colorado and has advised people from all over the country.  He advises both state and local governments in their development of medical marijuana business regulations.  Jeff is widely considered one of Colorado’s leading marijuana attorneys. 

In 2013 the Colorado Legislature adopted a "per se" limit on the amount of THC that can be in a person's blood stream while operating a motor vehicle.  This amount is 5ng per milliliter of blood.  If a blood test reveals that you had more than 5ng of THC per milliliter of blood in your system while driving, the jury will be instructed that they may infer you were impaired.  Unlike driving over .08 with alcohol, you are entitled to present evidence that you were not impaired even though you had more than 5ng/ml in your system.  As this law is new to Colorado it is difficult to predict how successful, if at all, this defense may be with a jury.


Q: Will I go to jail?

A: It depends.  Jail is a possibility in any DUID case, however it is rare for first time offenders without aggravating circumstances.  Mandatory jail applies to 2nd DUI offenses and above.

Q: Will I lose my license?

A: It depends on the situation.  If you refused the blood test (if you are suspected of being under the influence of drugs you do not get the breath option) you will AUTOMATICALLY lose your license for one year. Additionally you will be tagged as a "persistent drunk driver" which means, regardless of the outcome of your criminal case you will be required to complete 24 hours of Level II alcohol and drug education classes. You have the option of serving two months of your license suspension and then applying for early reinstatement. If you choose early reinstatement you will be required to keep an ignition interlock in your car for a period of two years.   Since you are from out of state, your home state must have ignition interlock services available there.

If you take the blood test and are convicted of DUI or DWAI (First Offense) you will lose your license for 9 months.  However, if you wish, you can request early reinstatement.  If you are granted early reinstatement you will only lose your license for 30 days but will then be required to have an ignition interlock device installed in your car for the remainder of your revocation.   Again, your home state must have ignition interlock services available.

Q: Will my home state honor the Colorado license revocation? 

A:  In most cases, yes.  A majority of states have entered into an agreement to honor each other's license actions.  This agreement is called the Interstate License Compact.

Q: I am a chronic marijuana user and/or a medical marijuana patient; won't I always test higher than 5 ng/ml?

A: Likely yes.  Chronic users typically have levels in excess of 5 ng.  The marijuana DUI law provided for a "permissible inference."  A permissible inference is something that the jury MAY consider.  Unlike a necessary inference (.08 for alcohol), you will be allowed to offer evidence that you are a chronic user or medical patient to rebut that 5ng/ml should be your level for impairment. There are expert toxicologists that we work with that can help clarify this issue for the DA or a jury if the case proceeds to trial. 

Q: Is the 5ng/ml impairment level based on good science?

A: It depends on who you ask.  Prior to enacting the law, the Colorado Legislature created a task force to study the issue.  The task force examined the available science and held hearings featuring many of the leading experts in the field.  Those experts have differing opinions regarding the 5 ng/ml level. Some experts believe that 5 ng/ml is the perfect amount to determine impairment.  Some think it should be even lower.  Others believe that the science is not well developed enough to make a determination either way.  Finally, some believe that, unlike alcohol which is fairly predictable, marijuana impacts users on such a wide scale that there is simply no number that we could ever use as a one size fits all solution. 

Q: Does marijuana cause driving impairment?

A: Again, it depends on who you ask and who you are.  Almost all research agrees that marijuana causes at least some impairment, especially for inexperienced smokers or people who are not used to the high quality of Colorado marijuana.  Some researchers believe that it causes enough impairment to justify never operating a motor vehicle while “high” regardless of your tolerance level.  Other research suggests that people under the influence of marijuana, especially chronic users, can operate a motor vehicle just as well as a sober person.  Some research even finds that people under the influence of marijuana tend to overestimate how impaired they are and therefore drive extremely cautious.  Regardless of where you come down on this issue it is important to note that operating a motor vehicle while impaired from marijuana is ILLEGAL in Colorado.

If you, or someone you know, finds themselves faced with DUI charges, please call a qualified attorney immediately.

With the passage of Amendment 64 which created limited legalization of marijuana for Colorado adults over the age of 21, law enforcement has ramped up enforcement efforts against marijuana.  In a much debated political compromise, the state legislature passed a marijuana dui law which creates a presumption that anyone with more than 5ng. of THC in their bloodsteam is under the influence and guilty of DUI.  The science behind the 5ng. law is debatable.  Many medical marijuana patients and habitual marijuana users can demonstrate much higher levels many hours, even days after consuming marijuana.  We know the science.  We know how the DA will present the case against you.  We are ready to tackle these issues head on. Gard & Bond was voted the Best Law Firm in Boulder in 2013 and 2014. We can help.

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