Eagle County man becomes the second to beat DUI marijuana charge

Defense attorneys Jim Little, left, and Lauren Butler leave the courtroom after successfully defending their client against a DUI-marijuana charge.
Randy Wyrick| |

What is a nanogram?

A nanogram is a unit of measurement, abbreviated as “ng” indicating a mass equal to one billionth or 1/1,000,000,000, of a gram. This is obviously an extremely small amount and nanograms as units are rarely used outside of the scientific fields of microbiology, physics, and chemistry. A nanogram is a unit derived from the International System of Units (SI), a system recognized by nearly every country around the world as the system by which consistent measurements may be made and communicated. The SI is closely related to and derived directly from the metric system.

EAGLE — A local man insisted he was not driving while impaired by marijuana, and a jury took less than an hour and a half to acquit him.

Not only did the jury side with Steven Hogg and his defense attorneys Lauren Butler and Jim Little, they also threw out a couple traffic infractions added just before the trial, Little said.

“Mr. Hogg was adamant that he was not impaired, and that he wanted to exercise his right to go to trial,” Butler said.

Nanograms not settled science

Unlike alcohol, where blood alcohol levels are hard and settled science, marijuana impairment levels are less clear, Little said.

With a 0.08 blood alcohol level, you’re impaired, Little said. With marijuana, it’s not that clear-cut.

When Colorado voters legalized pot, state lawmakers set 5 nanograms of marijuana in the bloodstream as legally impaired.

Defendants are successfully challenging that 5-nanogram level. Hogg’s was the second DUID case in Eagle County. Defendants have won both cases.

“The scientific community is still studying the level at which people are too impaired to drive. The issue gets gray when dealing with regular users,” said District Attorney Bruce Brown said. “Regular users build an immunity.”

The science does not support arbitrary impairment levels in regular users, such as 5 nanograms, Butler said.

“We don’t believe the science supports a 5 nanogram level for impairment for everyday smokers. In this cast the jury agreed with us,” Butler said.

A novice user is likely to be impaired at 5 nanograms. A regular user will build up a tolerance and will not feel the effects, Little said.

During the one-day trial in mid-December, Hogg testified that he is a regular user. Hogg works three jobs, Little said.

“It was our hope and belief that the jury would be skeptical, and they were,” Little said. “Ultimately the jury sided with us. They acquitted him on all the charges, even the two traffic violations prosecutors added just before the trial, 289 days after Hogg was stopped,” Little said.

Expressed consent

Roadside sobriety tests are voluntary, Butler said.

Providing a blood sample is not.

“The important thing is that people realize that by having a drivers license, you are agreeing to submit a blood sample,” Brown said. “We can debate all day long what the level is, but if you carry a Colorado driver’s license you have agreed to submit to that blood test.”

Given the state of the science, DUI-marijuana cases are very defensible, especially for everyday smokers, Little said.

“Given the state of the science, I would never encourage someone to enter a plea based on the charges alone,” Little said.

Anyone charged with a DUI-marijuana should consult an attorney, Little said.

Staff Writer Randy Wyrick can be reached at (970) 748-2935 or

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