This guide is meant to provide cannabis users and other attorneys with a helpful overview and understanding of Colorado's marijuana DUI laws.
Can you get a DUI for driving under the influence of marijuana in Colorado?
The answer is yes. Under Colorado law, a person can be charged with Driving Under the Influence (DUI) or the lesser offense of Driving While Ability Impaired when driving under the influence of alcohol, drugs or a combination of drugs and alcohol. Even though Colorado is synonymous with marijuana legalization, the law is clear that a cannabis user, even a medical-marijuana patient, are not immune from the state's DUI laws. That said, the law for marijuana DUIs differ in some substantial ways than alcohol DUIs. When a police officer contacts a person on a traffic stop, if that officer suspects that the person is under the influence of alcohol and/or drugs, the law enforcement officer can ask that person to step out of the car. They will then typically ask that person if they would participate in voluntary roadsides. The roadsides are a series of psycho-physical tests that are meant to help the officer determine whether the subject exhibits indicia of impairment or whether that person appears safe to drive their vehicle. The roadsides are VOLUNTARY and therefor the subject does not have to complete them - not agreeing to them does not mean that you will avoid arrest. If a police office determines that he/she has probable cause to arrest a person for DUI then the officer will invoke Colorado's Express Consent Law. This law says that by the mere fact that an individual is driving on a Colorado road (there are many broad definitions of what this constitutes), you have a agreed already that if a police officer suspects you of DUI that you will (a) provide either a Breath or Blood sample if the police officer suspects that a person is under the influence or alcohol OR (b) a blood test only if the officer suspects that you are under the influence of drugs. Certainly some people choose to take both drugs and alcohol and then drive. Typically, police officers will lead with alcohol. If they believe that there is alcohol on board, they will give the person a choice of breath or blood. Breath tests do not detect drugs and therefore, sometimes people who know they have alcohol and drugs in their system will elect for a breath test. If that test produces a breath alcohol level of a .080 or above, usually the police officer will not take any further lengths to determine if their are drugs in the system. On the other hand, if a person consents to a breath test and that result once administered produces no indicator of alcohol or a small amount. A police officer may be allowed to try and secure a second test - a blood test - if he/she can articulate why they believe drugs are possibly contributing to that person's impairment. A blood test of course has to be sent to a laboratory to be tested so there is no instant result. Typically the person who is arrested may be booked into jail, taken to a Detox center, or released to a sober part with a summons & complaint (ticket).
Refusal to take a test
In Colorado, when a person is asked by a law enforcement officer to take a blood test because the cop suspects that it is marijuana (and/or other drugs), a person may refuse. There are only limited and very serious circumstances (Vehicular Homicide & Assault) where the police can obtain a warrant and have a person's blood taken without his/her consent. However, there are consequences to refusing the test and that is namely the suspension of that persons driver's license. Generally, a person who refuses to take a test will have his/her license suspended for a year, although it can be for longer depending on that individual's history. A person who is served by a law enforcement officer with a suspension, can and should request a hearing with the Colorado Department of Motor Vehicles. However, if sustained, that person is looking at a 60-day hard suspension (cannot lawfully drive and if caught a new charge that carries mandatory jail time), but after that period can qualify for an Interlock-restricted driver's license. An Interlock device is a device that is installed on a vehicle and will only allow the car to start if the driver provides a breath sample that shows that there is no alcohol in their breath. It will also randomly require tests from the driver as they are driving or will otherwise shutdown the vehicle. For a person accused of driving under the influence of marijuana, this law still applies. So if an individual refuses a blood test, they will not only have to pay for and have a device that only monitors alcohol for a year or longer, they will also be required by the DMV to take alcohol education and treatment classes!
Test results & Toxicology
If a law enforcement officer has probable cause to a arrest and individual for DUI and that person submits to a blood test, the results of that blood test can trigger a provision in the Colorado law that may be very relevant as to how that case is prosecuted. When a person's blood sample is submitted to a laboratory, that laboratory can typically tests for three different components: Delta 9 THC is the active and impairing component of THC; Hydroxy is an impairing metabolite; Carboxy is a non-impairing metabolite of THC. Cannabis users decision to take a test or not may be based upon his/her belief that because they are a frequent user of cannabis (even if he/she didn't prior to the DUI) that there is going to be THC in their system because they have heard somewhere that it can remain in a person's system for up to 30 days. This is true for Carboxy, the waste product, that will often remain a person's body for extended period of times. However, this is not what the law in Colorado is focused on. Instead, the law in Colorado focuses on Delta 9 THC and is referred to as a Permissible Inference law. What that means is that when that blood test gets processed through the laboratory if there is 5 nanograms/per ml. of Delta 9 THC confirmed in the sample, the law then asserts an inference that a person is considered to be substantially incapable of safely driving a car. That blood test result, whatever it's value, will largely decide how a prosecutor is going to treat the case. Colorado does not have a per se law for marijuana. A per se law triggers a law violation if a certain measurement of a drug or alcohol is detected. In Colorado, as with most states, if a person has a BAC of .080 or higher that in itself is a violation of the law - the prosecutor doesn't have to prove that the person was too drunk to drive. Colorado's 5 ng. law does not function that way, instead if a Marijuana DUI case is taken to trial, a jury would be given an instruction that says they are permitted to infer that a person with 5 ng. of Delta 9 THC or over would be impaired, but then it goes on to allow for other considerations, including any evidence the defense may offer.
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