On June 12th, Colorado NORML (National Organization for the Reform of Marijuana Laws), sent a letter to the Governor, Speaker of House Ferrandino, Senate President Morse and Colorado Attorney General asking the Legislature reconsider its decision to impose an arbitrary DUID-marijuana standard of 5 ng/ml in light of the revelations of the drastic deficiencies in the lab training, qualification, accuracy, standard operating procedures, reporting, and alleged bias of employees of the state toxicology laboratory at the Colorado Department of Public Health and Environment (CDPHE).
Next, NORML is making a Colorado Open Records Act request to determine the extent of influence with the Governor’s Office, Attorney General’s Office, the District Attorney’s Council, and the Legislature that Ms. Cynthia Burbach had in adopting the 5 ng/ml DUI marijuana standard.
Finally, NORML is asking every District Attorney around the state to conduct an internal review to determine if any convictions may have been obtained based on biased testimony or compromised evidence from the state toxicology lab.
Since its founding in 1970, NORML has been an advocate for the tens of millions of Americans who smoke marijuana responsibly. NORML was proud to participate in the Governor’s Task Force on the implementation of Amendment 64 as the representative of marijuana consumers. Colorado NORML Board Members have played an integral role in the public debate regarding the adoption of proposed per se thresholds for marijuana, including co chairing the DUID-marijuana subcommittee of the Drug Policy Task Force of the Colorado Commission on Criminal and Juvenile Justice.
NORML has consistently expressed deep concerns about the fairness of adopting a 5 ng/ml blood level for THC given tl1e lack of scientific consensus about residual blood levels, particularly in long term chronic users. In fact, the U.S. National Highway Transportation Administration acknowledges on its website, “It is difficult to establish a relationship between a person’s THC blood or plasma concentration and performance impairing effects…. It is inadvisable to try and predict effects based on blood THC concentrations alone.”
As NORML has always maintained, there is no scientific debate that an arbitrary blood limit of 5 ng/ml will ensure the conviction of innocent people who were not actually impaired. The world’s leading expert on the issue, Dr. Raemakers of Holland, testified that in his opinion a standard of 15 ng/ml might be defensible as a level at which all people are definitively impaired. But he acknowledged that even that number is simply a guess because the appropriate studies correlating THC blood levels with behavioral impairment have not yet been performed. There is no doubt the 5 ng/ml standard does not represent science, it represents a political agenda to look tough on DUID-marijuana in the age of legal marijuana. The standard adopted by the Legislature this past session is unnecessary given statistics that over 90% of all DUID-marijuana charges resulted in convictions prior to the adoption of the new arbitrary standard.
The 5 ng/ml standard was championed by former state toxicologist Cynthia Burbach, over many years and through many Legislatures. The Legislature, Governor, Attorney General, and District Attorney’s Council apparently relied heavily on her alleged expertise to justify the adoption of this standard. Ms. Burbach has long advocated for some bright line standard at a level lower than 5 ng/ml. In fact, Ms. Burbach has consistently argued that a standard as low as J or 2 ng/ml should be adopted and she has often dismissed concerns about the possibility of convicting innocent people with such a low standard. Moreover, Ms. Burbach has testified in Court that marijuana may impair someone’s ability to drive for as long as 24 hours after use- a claim contrary to the vast majority of scientific evidence that suggests marijuana impairment peaks around 30 minutes after use and is not likely continuing to cause impairment anywhere from 1-4 hours after use.
On June 7, 2013, the Attorney General released the internal investigation of Ms. Burbach’s supervision of the state toxicology laboratory, which contained extremely disturbing conclusions. The lab’s personnel were not properly trained. Lab samples were not adequately safeguarded. Employees were asked to present expert testimony in criminal cases without the appropriate training or expertise. Staffing was deficient for the workload of the lab. Ms. Burbach displayed hostility towards defendants and defense attorneys in her role, including celebrating or bragging about the incarceration of defendants and making fun of defense attorneys. Moreover, after this report was completed in March 2013, the Attorney General’s Office and DA’s around the state consistently resisted releasing this report to defense attorneys and the public, raising the concern that defendants may have been deprived of their right to know mitigating information during the pendency of their cases. So called “Brady” material, potentially exculpatory information held by the prosecuting and law enforcement authorities, MUST be provided to the Defendant. This is a fundamental principle of due process that may have been undermined.
There can be no doubt that the conclusions in this report raise the question of how many people may have been wrongfully convicted based on a litany of lab failures, from training to record keeping to basic impartiality as the PEOPLE’s expert, not as the prosecutor’s expert. This report will rock public confidence in this state agency.
As a way of limiting the ongoing damage caused by these multiple failures in the lab, Colorado NORML is calling on the Legislature to revisit the 5 ng/ml DUID-marijuana standard.
Next, Colorado NORML is calling on District Attorneys across the state to conduct an internal review to determine if any convictions were obtained as the result of biased testimony or compromised evidence.
Finally, Colorado NORML is also pursuing a Colorado Open Records Act request to the CDPHE to reveal all communications between Ms. Burbach and the Attorney General’s Office, the District Attorney’s Council, the Colorado Commission on Criminal and Juvenile Justice, and the Legislature regarding the adoption of the 5 ng/ml DUID-marijuana standard. NORML believes the public is entitled to and deserves to know the extent to which the Legislature relied on Ms. Burbach’s advice in adopting this arbitrary standard.
The Colorado Department of Public Health and Environment has 3 days to respond to this CORA request by law.
The Orr Law Firm was one of the leaders in pushing the fight to investigate and look into the State lab and to investigate the veracity of statements and testimony given by Ms. Burbach. We will do our best to keep you posted on the developments as they relate to the recent scandal involving CDPHE and chemical testing for DUI cases.