Denver Post’s Irresponsible Campaign

Two stories in the December 27, 2013 Denver Post tell Colorado what to expect in the coming years from the Post.

TheDenverPostFirst, the sad story of Dora Gayton-Esparza, 35, and Daniela Medina-Gayton, 6. Dora was killed and Daniela was seriously injured by Johnny Cephas-Gilbert, 37. The Post reported that Cepahas-Gilbert was charged with vehicular homicide and vehicular assault, noting that he reeked of alcohol and marijuana when arrested.

We already know the outcome of this story, assuming it follows the trend of other poly-drug traffic arrests in Colorado. The driver will be charged with DUI-alcohol, and will not be charged with DUI-drugs (DUID). Regardless of the evidence, the driver will not be charged with DUID. A subsequent story in the Post neglected to mention marijuana.

Because of Colorado’s alcohol per se law, it is easy to prove alcohol impairment. But it is much more difficult to prove drug impairment. The rational thing for law enforcement to do is to charge only DUI alcohol, since that is relatively simple; they won’t even bother to test for drug impairment, because that’s difficult and expensive. Both DUI alcohol and DUID are included in the same statute number (CRS 42-4.1301 (1)), so selecting the easy way out still results in the driver facing full charges. Charging both is considered a waste of judicial resources.

The second story is the front-page article with the headline, “Firing over legal use OK.” The article notes that employers can fire employees for using marijuana on or off-duty. The Post seems to have ‘discovered’ this ‘little-known detail’ in Amendment 64, even though it was a major plank that marijuana proponents included to ensure the amendment’s passage. The Post continues with interviews with people who express surprise or frustration at this plank in the amendment. Employers performing non-critical work expressed their opinion that marijuana use was of little concern. An attorney advised employers to refrain from firing a pot-using employee unless that employee was ‘obviously impaired.”

This appears to be a front-page editorial, rather than a news story. It’s consistent with the Post’s long-standing support of either unrestricted or poorly-restricted use of marijuana in our state, regardless of the consequences.

But look at the common thread in the two stories. Unlike alcohol impairment, drug impairment can be difficult and expensive to prove, even though its consequences may be similar. Of the roughly 15,000 officers in Colorado trained to detect and document drunk driving, fewer than 200 are trained to detect and document drugged driving. Hence the problem with charging Cephas-Gilbert with DUID.

As difficult as it is for law enforcement, with its great resources to prove DUID, what tools does a company have to keep drug-impaired employees from causing harm? Do any of them employ trained Drug Recognition Experts?

Companies, especially high-tech companies or ones creating products where quality and performance are critical, rely upon a tool used by the Department of Transportation to keep drugged drivers, pilots, air traffic controllers, and other safety-critical employees from endangering the public with drug use. They use pre-employment and sometimes random urine screening tests. Unlike the drug tests used by law enforcement, these urine tests indicate past recent usage of illicit drugs and marijuana, not just impairment. Their intent is to keep illicit drug users from creating liabilities for the company. Companies are ill equipped to preemptively identify and remove drug-impaired employees from causing harm to themselves or others, hence their emphasis on drug use, rather than drug impairment.

Companies need the right to screen employees for use of potentially impairing drugs if they are to control their liabilities for defective products and employee safety. The Post is continuing its campaign to remove this right by featuring this latter story in their pot blog. If the Post is successful, DVV foresees an exodus of companies, fleeing to states with more responsible views.


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