Pubdate: 28 Jan 1999
Source: Denver Post (CO)
Copyright: 1999 The Denver Post
Website: http://www.denverpost.com/
Contact:  Kirk Mitchell

PROSECUTOR SEEKS POT-INTOXICATION STANDARD

Jan. 28 - A Genesee man who allegedly killed three people in a car accident
while high on marijuana will get a reduced sentence today because it's
difficult to prove that mood-altering drugs impair drivers, a prosecutor said.

Jay Tankersley, 21, of Genesee, was originally charged with three counts of
vehicular homicide and one count of vehicular assault in connection with
the 1997 accident.

But the charge was reduced to one count of negligent homicide, and
Tankersley will be offered probation and a maximum of 90 days in jail or
two years on work or education release, said Jeff Lindsey, deputy district
attorney in the 11th Judicial District.

Tankersley is set for sentencing today in Chaffee County District Court in
Salida.

Lindsey said the hurdles he faced in prosecuting Tankersley expose problems
that will continue unless the Legislature clarifies the law or better tests
are developed to prove the correlation between levels of marijuana in the
blood and driving impairment.

While tests can directly correlate bloodalcohol levels to driving
impairment, that can't be done with marijuana.

That's a major problems in cases such as Tankersley's where the suspect is
injured and can't submit to a roadside sobriety test, Lindsey said. Also
traces of marijuana can remain in the system for months, so it's difficult
to prove whether the suspect was impaired at the time of the accident.

The state's current law makes driving under the influence of marijuana
illegal, but it doesn't set a blood content limit as in
alcohol-intoxication cases. Because of that, Lindsey said, the judge in
Tankersley's case rejected testimony that Tankersley's marijuana use had
impaired his driving.

Laurel Farrell, a forensic toxicologist for the Colorado Department of
Public Health and Environment, said several states and countries have set
marijuanaintoxication levels.

While the testing is less clear than it is for alcohol, scientists can
determine whether the amount of marijuana was high enough to impair
driving, she said.

"We need to do a better job of educating judges about what it can tell us
and what its limitations are,'' she said.

But Tankersley's attorney, Lee Foreman, said if the science is shaky it
shouldn't be used to hammer his client.

"People shouldn't be convicted by science when the science isn't good
enough,'' Foreman said.

There is little dispute over whether Tankersley had been smoking marijuana
on July 17, 1997, when the accident happened; at issue is whether it caused
the crash, Lindsey said.

Colorado should consider a law that automatically raises penalties for
having marijuana in the system and causing a traffic accident.

But Foreman said state laws already penalize people for driving under the
influence of alcohol or drugs. He questioned the need for a new law
penalizing someone for marijuana use when the drug's impact on an accident
is uncertain.

Foreman said his client was negligent but not guilty of vehicular homicide.

Witnesses at Tankersley's preliminary hearing testified that he took two or
three drags on a marijuana bong on the morning of July 17, 1997, and
inhaled again at about 4 p.m., five hours before the accident, Foreman said.

Nearly all experts agree that a marijuana high wears off after two or three
hours, he said.

Tankersley was driving north on Colorado 24 about 7 miles out of Buena
Vista when he drove into the oncoming lane, hitting a car driven by Curtis
Harrison, 50. Harrison was heading southbound on his way back to New Mexico
after picking up his 21-year-old son, Jeff, in Wyoming. Also in the car was
Curtis Harrison's 9-year-old grandson, John Pinto Jr.

The crash severely injured Jeff Harrison and killed Curtis Harrison, Pinto
and a passenger in Tankersley's car, Justin DeSorrento, 20, of Genesee. 
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