Keeping You Legal: Driving under the Influence
By Ann Toney
Even with a Colorado Medical Marijuana Registry card (red card) you can still be prosecuted for driving under the influence of drugs. People are charged and prosecuted every day across Colorado for suspicion of having THC in their system and driving, allegedly impaired.
During the 2011 session the Colorado State Legislature grappled with passing a statute (House Bill 11-1261) which would set a THC blood content threshold of five nanograms per milliliter of whole blood for the purpose of charging a person with the criminal offense of DUI per se. While an amendment of eight (8) nanograms per milliliter was offered after fierce resistance by citizens to the original bill, the bill ultimately did not pass the state Senate and died.
With the proliferation of citizens with Registry cards the possibility of a card holder being stopped and investigated for driving under the influence of drugs (DUID marijuana) is very real. What I find in my practice is that people charged with DUID unwittingly provide the government with valuable evidence against themselves when they are simply trying to be good citizens and cooperate with law enforcement. I recommend you be courteous to law enforcement officers as they are trying to do their job, but you can do so while also exercising your rights.
Here are some suggested guidelines and rights you can exercise:
1. DO NOT MEDICATE IN YOUR CAR. The smell of burnt or fresh marijuana in the car or on the driver is the No. 1 way law enforcement can trigger a DUID investigation on a driver. DO NOT carry marijuana in the front compartment of your car. Put it in a smell-proof container in your trunk. The smell of marijuana allows the officer to investigate you. Your Registry card will not be a defense to a DUID charge.
2. PROVIDE LAW ENFORCEMENT WITH YOUR DRIVER’S LICENSE, REGISTRATION AND AUTO INSURANCE. Answer the officer’s questions as to whether there are any weapons in the car and the identity of passengers in the car. Questions such as “Are there drugs in the car?” and “When was the last time you smoked?” are protected by the Fifth Amendment right against self-incrimination so respectfully stating “Officer, I have nothing to say” should suffice. Most people think they have to answer all of the officer’s questions and that is not the case. Any information you provide the officer, such as when you last medicated, may be used against you in your prosecution. Some people clip copies of their car registration and car insurance on the driver’s sun visor within reach. This helps avoid a report that you “fumbled to locate your paperwork” in the glove compartment where there is usually many papers. Carry your Registry card at all times and if you are being arrested for possession of marijuana, show the officer your Registry card.
Ann Toney, P.C. is a Denver-based law firm in Denver that focuses on medical marijuana business law and marijuana defense; and defending people charged with driving under the influence of alcohol and drugs (DUI/DUID). Ann Toney can be contacted via phone or web at (303) 399-5556 and www.medicalcannabislaw.com.
