Alexander DeLuca, M.D.
"Drugged Driving" Campaigners Open New Front with Federal Legislation
Drug War Chronicle #329;
A little more than a year ago, DRCNet reported on the opening of a campaign led by drug czar John Walters and backed by self-interested drug testing consultants to crack down on "drugged driving," or operating a motor vehicle while high [http://stopthedrugwar.org/chronicle/264/druggeddriving.shtml]. Walters, backed up by research and recommendations from the drug test consulting firm the WalshGroup [http://www.walshgroup.org], called on states to enact zero tolerance per se laws against drugged driving.
Per se laws assume that a certain level of a drug in one's system is prima facie evidence that one is intoxicated. State drunk driving laws, where a blood alcohol level of 0.08% gets one an automatic drunk driving conviction, are examples of such laws. The difference between per se drunk driving laws and the per se drugged driving laws envisioned by Walters (and already enacted by eight states, according to the American Prosecutors Research Institute), is that the drugged driving laws will set the amount of drugs in one's system that would trigger a drugged driving conviction at zero. Under such laws, a person who smokes a joint Friday night could be pulled over and arrested for driving while intoxicated Monday morning, long after the high has worn off, but while the notoriously long-lasting cannabis metabolites linger.
Now, Congress has joined the campaign with two bills introduced in the last two weeks, one that creates a model zero tolerance per se drugged driving law for the states, and one that would penalize the states for failing to implement such laws. On March 4, Rep. Jon Porter (R-NV) introduced H.R. 3907, which would take federal highway transportation dollars away from "states that do not enact laws to prohibit driving under the influence of an illegal drug." The bill would strip 1% of federal highway funds from states that do not enact such laws by 2006, with the percentage doubling each year up to a ceiling of 50%. And states must create mandatory minimum penalties for drugged driving to comply with the bill.
Five days later, Rep. Rob Portman (R-OH) introduced H.R. 3922, which calls for model legislation for the states to be crafted within one year from its passage. According to H.R. 3922, the model drugged driving law must include a provision defining the crime of drugged driving as occurring when a person drives "while any detectable amount of a controlled substance is present in the person's body, as measured in the person's blood, urine, saliva, or other bodily substance." In other words, a zero tolerance per se drugged driving law.
While the zero tolerance per se provision is the only mandatory provision in the law (except a rather obvious one saying that an obviously impaired person who drives commits the crime), Portman's bill generously allows the states to add more repressive measures at their discretion. Those include penalties for failing to submit to a drug test that are equal to those for a positive drug test, felony status for a third offense within 10 years, revoking the drivers' license of anyone convicted of drugged driving, and, oddly, a provision that would allow "lawful use" of a controlled substance as an affirmative offense to a drugged driving charge.
But the bill has opposition, and not just from the usual suspects. The American Prosecutors Research Institute told the Associated Press state laws already barred driving while high. "In every state of the country it's illegal for someone to drive under the influence of any drug or substance that may cause them to be impaired," said John Bobo, director of the group's National Traffic Law Center.
The states aren't too keen on either bill, said Jonathan Adkins, spokesman for the Governors Highway Safety Association, which represents state highway traffic safety agencies. He told the AP the move in Congress to force states to adopt the 0.08 blood alcohol limit or lose funding left a bitter taste. The association is advising its members not to adopt any new drugged driving laws at this time, he said. "There has been little to no evaluation as to their effectiveness," said Adkins. "Most drivers who are drug impaired are also alcohol-impaired."
"Of course no one is defending driving while impaired," said Paul Armentano of the National Organization for the Reform of Marijuana Laws (http://www.norml.org), "but that's not what this federal push is about. Under these statutes, they don't have to prove actual impairment; instead, detecting even trace levels of illicit drugs or their metabolites is enough to garner a DUID [Driving Under the Influence of Drugs] conviction."
The campaign is about more than highway safety, said Armentano. "This is really the culmination of an all-out federal effort to not just crack down on impaired drivers, but to cast the net wide enough to target recreational drug users, particularly marijuana users."
Marijuana users are particularly vulnerable. While someone could tweak on meth all weekend long, by Wednesday he would be clean. Not so for the pot people. "Marijuana metabolites may be detectable for up to two weeks in a casual user," said University of Southern California psychologist Dr. Mitch Earleywine, author of "Understanding Marijuana: A New Look at the Scientific Evidence, "but the high usually lasts no more than two to five hours."
Rather than test for drug traces, said Earleywine, test for actual impairment. "I would like to see us go in the direction of field sobriety tests," he said. "I think whether someone can't recite the alphabet or walk a straight line is a better indicator of impairment than the state of their urine. While I think the current laws are perfectly adequate, a move to field sobriety tests might get impaired drivers who are using Benadryl or other drugs we don't even look for. The point is we need a good balance between public safety and civil rights."
"These zero tolerance per se drugged driving laws do not appear to have a rational scientific basis," said Armentano. "If our concern is identifying impaired drivers and getting them off the road, we need to concentrate on impaired drivers, not inert metabolites. We already have per se drunk driving laws, but that level is not set at zero. We do not say it is illegal to drink and drive; we say it is illegal to drive impaired, and there is a measurable scientific standard. If we want per se drugged driving laws, we need to be consistent and set similar, science-based levels," he said.
But the states already have laws that address impaired driving, Armentano reiterated. "The federal government is acting as if police are pulling over wasted drivers and have to let them go because they can't drug test them, but that is not the case," he said. "The problem is, the states that have impaired driving laws make prosecutors work harder. They actually have to prove the person was unfit to drive, show recent drug use, and make a case that the impairment is related to the drug use. Those are more sensible laws."
The fight has been joined. Arizona, Georgia, Iowa, Illinois, Indiana, Minnesota, Pennsylvania, Rhode Island, and Wisconsin have already enacted such laws. But they have also been defeated at least twice, in Utah in February 2003, and last week in Hawaii.
"We have a massive education campaign to undertake," said Armentano. "Concerns about highway safety and impaired driving are legitimate concerns and legislators are understandably interested in this issue. But these DUID laws are not the way," he said. "I think one key argument is to make the analogy to drunk driving laws. They punish the driver for impairment, and have scientifically sound cut-off levels. DUID laws should do no less."
To read the two bills online, visit [http://thomas.loc.gov] and type in the respective bill numbers, H.R. 3907 and H.R. 3922.