What to do if you were hit by a driver under the influence
Did you know there are now more marijuana dispensaries in Denver than Starbucks?
This seems to make a big difference in the state’s traffic statistics. Adult use of marijuana in Colorado was legalized in 2012, followed by recreational sales in 2014. However, transportation and public safety officials will not say that the increasing number of marijuana-related traffic fatalities “can be definitively linked to legalized marijuana.”
Why is that? Because THC, the main indicator of whether an individual was high, can be present in your body for weeks after use – even up to a month. When it comes to testing, driving while high is not the same as driving while drunk.
Police officials have not agreed on a scientific method that can be used to conclusively tell whether someone has just smoked prior to driving. There’s no method like, say, a Breathalyzer, which can immediately tell police someone’s blood alcohol content.
So how does Colorado test for driving while high? The answer is roadside impairment tests.
Police have been reduced to roadside impairment tests because of the fact that there is no agreed-upon chemical test. While there is a bodily limit in Colorado (five nanograms), a blood test does not say where or when that marijuana was consumed. Police can only judge by what they see, assuming impairment based upon walking in a straight line or reciting the alphabet.
Colorado’s drugged driving statistics
In 2016, nearly 36% of drivers who were in fatal car crashes who tested positive for marijuana use also tested positive for alcohol consumption, according to the Colorado Department of Transportation. In numbers, that was 627 accidents to 880 in the 2013-2016 period.
According to the Denver Post,
- Marijuana is playing into more fatal crashes, figuring into 20% of fatal crashes in 2016 as opposed to 10% of crashes in 2013.
- The number of drivers testing solely for marijuana is rising. In 2016, it was 69% that tested positive for cannabinoids. In 2014, it was 52%.
- In 2016, 71 of the 115 drivers in fatal wrecks were found to have THC in their systems, indicating use within hours. Of those 71 drivers, 63% were over the state’s legal limits for driving.
To be arrested for driving under the influence of marijuana in Colorado, a driver needs to test positive for five nanograms of active tetrahydrocannabinol (THC).
However, police will arrest based on observed impairment if necessary. This applies even if it is medical marijuana, so don’t think that a prescription will keep you from getting cited for a DUI.
Passengers in the car are not allowed to have open containers of marijuana, either. Basically, Colorado police don’t want to see that there are broken seals on any bags, which would indicate that something might have been consumed in the car.
If someone in the car refuses to submit to a chemical test, driving privileges can be revoked and that individual could be labeled a “high-risk driver.” Consequences range from interlock devices to drug education classes, and these will be applied separately of a criminal conviction.
Laws in Colorado regarding drugged driving
When police officers think someone is driving while high, they can conduct blood tests to see how much THC is in their system. As we’ve established, Colorado's limit is 5 ng/ml of THC. Refusal to submit to a blood test means an automatic DUI or DWAI (driving while ability is impaired), along with a one-year revocation of a driver's license.
Here are the punishments for driving while impaired:
- First DUI offense:
- a. Five days to one year of jail time
- b. Fines between $600 and $1,000
- c. 48-96 hours of community services
- d. Up to two years of probation.
- First DWAI offense:
- a. Two days to 180 days of jail time
- b. Fines between $200 and $500
- c. 24-48 hours of community service
- d. Up to two years of probation.
- Second DUI or DWAI offense:
- a. 10 days to one year of jail time
- b. Fines between $600 and $1,500
- c. 48-120 hours of community service
- d. A minimum of two years' probation.
- Third DUI or DWAI offense:
- a. At least 60 days in jail and at most one year
- b. Mandatory education or treatment program
- c. Minimum fine of $600 and maximum of $1,500
- d. Minimum 48 hours of community service and a maximum of 120 hours
- e. Minimum two years' probation
What if I think the driver who hit me was high?
Being hit by a drugged driver is pretty much the same as being hit by a drunk driver, in terms of post-accident protocol. You should take the following steps:
- Make sure you're physically sound, and check on others in your vehicle.
- Get your vehicle out of the flow of traffic. If that isn't possible, turn on your hazard lights.
- Call 911 or local law enforcement, even if nobody is injured. You will need a police report on record.
- Get everyone's information – witnesses, drivers, license plates, weather conditions, insurance information. You'll want to make sure that everyone involved is available later on.
- Take pictures of the scene.
- Take down any observations that you can about the other driver. This is where your memories might later become crucial to your case. Tell the officers your suspicions so it can be added to the report:
- q. Did you smell pot on the driver or around his car?
- b. Were his eyes red or watery?
- c. Was his speech sluggish and did he lose track of the thread of conversation?
- d. Any lip-licking, salivating or swallowing that didn't look normal?
- e. Did he look very sleepy and were his reaction times slowed?
- Don't accuse the driver of operating a vehicle under the influence – just share your observations with the officers and wait to offer your theory to whatever attorney represents you. That way you aren't making any unfounded accusations. Because, as we've learned, you don't know if the driver smoked pot right before he drove.
While the driver being impaired wouldn't necessarily add to your damages, it does go to liability. Depending on how reckless the driver was, it might lead to punitive damages.
You should definitely speak with an experienced drug defense attorney who is versed in these laws. Consider sitting down with one of Enjuris’ Colorado attorneys.
Denise A. Valenti says
Thank you so much for taking the time to educate the public on this topic. Prevention is key. Marijuana is legal for adults, but that comes with responsibility and that means not driving.
Officers trained in the detection of functional impairment with marijuana use are the best means to remove marijuana impaired drivers from the road. Training includes DRE and ARIDE.
The state of Washington did a study before, during and after the legalization. They found that a driver in a fatal crash testing positive for active THC alone (indicative of recent use, NOT the night before, NOT the day before, NOT weeks before), no other drugs or alcohol was five times more likely to have killed someone other than themselves compared to a driver testing positive for alcohol alone. The harm is to innocent pedestrians, bicyclist, passenger or other drivers. They found that a driver testing positive for marijuana alone survived the crash fifty percent of the time. This means that the driver had the option to decline blood draw and postpone the blood sampling for hours. That may explain why when looking a total THC (active and inactive) the rate of killing an innocent was eight times greater than for alcohol. http://wtsc.wa.gov/wp-content/uploads/dlm_uploads/2015/10/Driver-Toxicology-Testing-and-the-Involvement-of-Marijuana-in-Fatal-Crashes_REVFeb2016.pdf page 49 and Colorado is finding similar death to pedestrians and bicyclists
Our group, IMMAD is developing assessment technologies to determine fitness to drive with marijuana. We hypothesize that there are reductions in visual functioning of which the driver is rarely aware. We are measuring the tunneling of vision often reported by marijuana users. We hypothesize that a driver often cannot see the person and object. This explains the Washington state findings.
Until technology such as IMMAD is available roadside… Trained officers remain, and for that matter will always be, the best means to remove irresponsible marijuana users from the road.
Lisa Banks says
Denise, thanks so much for your thoughtful and detailed comment here. It sounds like your organization is addressing a much-needed issue.
Tyler Carroll says
Denise could you please explain what type of specific blood test for THC you are talking about because you are being very specific in saying “(indicative of recent use, NOT the night before, NOT the day before, NOT weeks before),”.
Everything that I read about blood test for THC says that it shows up in your blood usually for 4-12 hours but for people that are heavy users such as a lot of Colorado smokers because it is legal are heavy users more than 3 days a week 5 (ng/mL) can COMMONLY be present for days up to weeks in their blood.
These are just a way to make money. Testing is invasive and ineffective.
Rab Paquette says
If I am harmed or a member of my family is harmed I demand the most invasive testing known. Alcohol testing is highly effective as is testing for other psychoactive drugs. This will all need to be sorted out not only for driving but also for on the job injuries.
Kersten L says
How do I report someone driving under the influence of marjuana? I smell it when the garage opens, it literally billows out of the garage and he drives erratically and fast around children and animals.
I would like to report this anonymously.
Ian Pisarcik says
You can report a crime anonymously by calling your local police station or contacting Colorado Crime Stoppers.