Colorado prosecutors are getting frustrated at jurors for daring to exercise rationality instead of blindly following the will of the State. A growing number of Colorado juries are acquitting people of driving under the influence of cannabis, even when tests show they are over the state’s legal blood-THC limit.
Since the recreational use of cannabis became legal, Colorado authorities are scrambling to apply rules and regulations to this new reality. They have established a 5 ng/ml blood-THC limit for operation of a motor vehicle, which seems to be arbitrary as there is no preponderance of data to support a specific number.
Indeed, the assumption that driving on weed poses the same risks as driving on alcohol would be a fallacy. In September, we reported on a novel study that found virtually no driving impairment under the influence of cannabis, while alcohol caused complete impairment.
People in Colorado seem to realize that applying a number to a person’s blood-THC level is not an ultimate determination of their motor abilities.
Take the case of Melanie Brinegar, who was stopped in June for an expired license plate. The cop, not content with collecting that revenue, decided to ruin her day on the suspicion that she was high, even though she had not displayed any erratic driving.
Instead of invoking her 5th Amendment right to remain silent, Brinegar—a licensed medical cannabis patient—answered the cop’s inquiry by saying, “No, I was medicating.”
That gave cops the excuse to demand she perform roadside sobriety tests, at which she did poorly. This enabled them to commit a further intrusion by taking a blood sample, which showed that Brinegar was almost four times over the state’s legal limit.
However, in court Brinegar said that she “drives better” and “is able to focus” after using cannabis. She went on to testify, “When I smoke I don’t get high.”
The jurors believed her. What’s more, the sober jurors tried doing roadside sobriety maneuvers on their own, and some of them failed. They concluded that Brinegar, although “legally” high, was not impaired.
Brad Wood, the foreman on Brinegar’s jury, described the process that allowed them to come to this conclusion:
“The law allows you to infer that the person was impaired if they have over 5 ng/ml. But you may also feel free not to infer that and in any case use all the evidence to make your judgment.”
This application of logic and defiance of arbitrary numbers is driving prosecutors into a hissy fit.
“You are putting lives in danger,” said Tom Raynes, head of the Colorado District Attorneys’ Council. “I want the message to be understood. It’s about driving while under the influence of drugs — it’s not about recreational or medical, it’s about being impaired when you drive.”
Never mind that Brinegar and other defendants are convincing juries that they are not impaired, or that there is no authoritative data on blood-THC levels and impairment, as there is with alcohol.
Colorado residents just don’t think that being over the legal limit for cannabis is the same as being over the legal limit for alcohol, and they are correct.
Instead of accepting this, prosecutors are seeking ways to convince juries that their 5 ng/ml number and their roadside tests are the only things that matter. Let’s hope that jurors continue the path of rationality and consider the individual cases, as they did with Melanie Brinegar.