Just after 9 p.m. on Sunday night, a driver hit two Colorado State Patrol vehicles near the on ramp to I-76 from I-25. The driver, 23 year old Keith Kilbey, was charged with DUI. The troopers believe Kilbey was driving under the influence of drugs, specifically marijuana. The troopers were blocking the left lane of the ramp, emergency lights activated, when Kilbey hit one CSP vehicle, which then hit a second CSP vehicle. No one was injured as a result of the accident.
Because Kilbey is 23, it is not illegal under Colorado law for him to have smoked marijuana. It is, however, illegal for him to drive while impaired or under the influence of marijuana. Unlike an alcohol related DUI, there is no DUI per se for driving under the influence of drugs, whether the drug is marijuana or some other type of drug. For an alcohol related DUI, there is a per se blood alcohol limit (0.08). There is no such per se limit for drugs. Nonetheless, drivers are deemed to have given their consent to a blood draw whenever an officer has probable cause to believe a driver is driving under the influence of drugs. If a driver refuses a blood draw, then DMV will revoke the driver’s privilege to drive.
While there is no DUI per se for drug related DUI charges, there is a presumptive level for marijuana. There are two components to marijuana drug testing. The blood sample is tested for an active component as well as an inactive component. The active component is the relevant analysis. In Colorado, if the active component measures at 5 ng or greater, there is a rebuttable presumption that the driver was under the influence. This rebuttable presumption is different than a per se limit because a per se limit would require a jury to find the driver guilty of DUI regardless of any other evidence. In contrast, a rebuttable presumption allows a jury to presume that the driver was under the influence, but the defense may present evidence and make arguments to show the jury that, even though the blood test results may suggest that the driver was under the influence, the driver was not actually under the influence.