By Timothy Graves, Esq.
In Colorado there are two types of crimes that involve driving while intoxicated by alcohol or drugs. "Driving under the influence' means driving a motor vehicle while 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. Colo. Rev. Stat. Ann. § 42-4-1301(1)(f) "Driving while ability impaired" means driving a motor vehicle while the person's ability has been impaired " to the slightest degree so that the person is less able than the person ordinarily would have been, 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" Colo. Rev. Stat. Ann. § 42-4-1301(1)(g)
While it is common knowledge that a driver cannot drive with their blood alcohol content (BAC) is elevated, it is less well known what the limit is on marijuana consumption. In Colorado, as well as Washington, the blood content limit for marijuana is "five nanograms or more of delta 9-tetrahydrocannabinol per milliliter in whole blood" Colo. Rev. Stat. Ann. § 42-4-1301(6)(a)(IV) (West) But what does this 5 nanogram limit really mean? It is unclear whether this 5 nanogram amount is applicable for everyone or whether a more seasoned marijuana user may not be impaired at this level.
The habitual user of marijuana builds up a tolerance to the psychoactive substance THC. This tolerance could well prove that the driver, while above the legal limit of 5 ng/ml, is still able to drive with normal judgment, control, and due care. According to Colorado Rep. Mark Waller, one of the law's co-sponsors, "if you did not exhibit poor driving, you can put that on as evidence to say, "Look my driving was not poor...I'm not unsafe to operate a motor vehicle,"
This law leaves open a defense to those charged with illegally operating a motor vehicle while under the effects of marijuana. However, habitual use of marijuana by itself is not enough for a jury to return a verdict of not guilty. In order to successfully use this defense, the person charged must seek experienced and knowledgeable legal counsel. If you wish to talk to such an attorney about your marijuana DUI or DWAI, contact Cantafio and Song, PLLC at 1-(888) 458-0991.