Jury Nullification and Cannabis DUI Cases in Colorado

drunk drivingOn December 16, a Denver judge dismissed charges of jury tampering against two Colorado men who were arrested for distributing pamphlets on jury nullification outside of a state courthouse this summer. Jury nullification is when a jury returns a not-guilty verdict despite the evidence that a defendant in fact broke the law, for reasons of conscientious opposition to the law itself or its application in the case. It is frowned upon in the modern legal system, but it enjoys a rich history in Anglo-American law dating back to the acquittal of William Penn in 1670 for violating one of England’s anti-Quaker laws.

Prosecutors and police believed that the pamphlets were intended to influence the outcome of a capital murder case. The city took the misguided approach of banning protests outside the courthouse. This badly misguided free speech violation led to escalating conflict between police and protesters, the arrest of two men, and a federal civil rights lawsuit.

The ultimate legal issues in both the state criminal case and the federal civil case were resolved with reference to the First Amendment. These cases did not directly sanction jury nullification as a practice, but they did make clear that no one can be prevented from telling jurors about it.  What is also clear is that support for the practice is growing.


Implications for Colorado DUI-D Prosecutions

Since recreational cannabis was legalized in Colorado, the main dispute surrounding pot has been how to regulate driving while under the influence of the substance. The legislature has established a per se limit for detectable levels of 5 nanograms THC per 1 milliliter of blood. The debate over this concentration level is ongoing. Some “tough on crime” types in the legislature want to actually lower the limit, claiming it makes enforcement too difficult. Meanwhile others claim that it is already arbitrarily low and cannot adequately predict intoxication. As of now, there is no scientific consensus about any particular level that establishes a reasonable presumption that a person is incapable of driving safely. This is partly because for many years there very few unbiased studies on the subject due to government restrictions. The lingering detectability of THC in the bloodstream well after intoxication has subsided poses another problem for this limit.

The general public seems to agree that the 5 nanogram limit is arbitrary, at least if this Colorado jury is any indication. Earlier this year a woman was acquitted of DUI despite testing at nearly four times the legal limit. The driver was a medical cannabis user, and there was no indication that the marijuana had negatively affected her driving (she was pulled over for a registration violation). It is impossible to know whether the jury was reacting against a bad application of the law, or rejecting the law itself (in the form of an arbitrary limit) in its refusal to convict the woman.  What is clear is that despite the evidence that she was in technical violation of the law, this jury chose its conscience over rigidly applying an arbitrary law. As public attitudes toward cannabis continue to shift faster than the law can keep up, the trend of jury nullification is likely to continue in a number of different cannabis related contexts. In federal prosecutions and in other states jury nullification may focus on mere possession. But in Colorado, the new frontier is cannabis DUI prosecutions.

Contact a Denver DUI Attorney

If you have been arrested for a DUI, DUI-D, or DWAI, you need the best representation you can get. At the Tiftickjian law firm, we are not necessarily going to argue a defense of jury nullification in your case. We will assess the whole situation and determine what your strongest defenses are. If we take your case we will explore all the options and devote all our efforts into providing you with the best defense possible. Contact us today.


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