"YOU
ARE GOING DIRECTLY TO JAIL"
DUID Legislation: What
It Means, Who's Behind It,
and Strategies to Prevent
It
by Paul
Armentano
Senior Policy
Analyst
NORML |
NORML Foundation
paul@norml.org
"Every state needs
a law ... defining, in essence, a crime divorced from impairment;
... that says if you use an illicit drug and drive, you
have broken the law. ... We need to treat DUID as
important [an offense] as murder, rape, and child molestation."
-- John
Bobo, Director, National Traffic Law Center. "Enforcement
and Prosecution of Drugged Driving Laws," speech given
February 23, 2004
"Current
research does not enable one to predict with confidence
whether a driver testing positive for a drug, even at some
measured level of concentration, was actually impaired by
that drug at the
time of crash."
-- US Department
of Transportation. State of Knowledge of Drug-Impaired
Driving: FINAL REPORT,
September
2003
"The American public
does not yet realize that driving under the influence of
drugs is a problem at least as big as drunken driving. ...
There are two appropriate action steps: Routine roadside
tests for recent drug use [and] the universal application
to all drivers of the per se standard currently applied
to the nation's 12 million commercial drivers."
-- Robert
L. Dupont. "Drugs and driving." Letter to the
editor: USA Today. October 28, 2004
"Drug
tests detect drug use but not impairment. A positive
test result, even when confirmed, only indicates that a
particular substance is present in the test subject's body
tissue. It does not indicate abuse or addiction; recency,
frequency, or amount of use; or impairment."
-- US Department
of Justice. Drugs, Crime, and the Justice System.
December 1992
There's
a new front in law enforcement's self-proclaimed "War
on Drugs" and its name is DUID.
DUID,
short for "driving under the influence of drugs,"
is the new buzzword among politicians and police -- however,
in this case, words can be deceiving. Though billed by its
sponsors as a necessary tool to crack down on "drugged
driving" offenses,
in reality, DUID laws -- in particular "zero tolerance"
per se laws -- have virtually nothing to do with
promoting public safety or identifying motorists who drive
while impaired. Rather, the enactment and enforcement of
zero tolerance DUID legislation is a direct and calculated
assault on the lives and liberties of marijuana smokers,
many of whom are just now beginning to feel the laws' effects.
DUID
DEFINED
DUID
laws come in various shapes and sizes, some more pernicious
than others. Today, every state has DUID legislation
on the books. These laws fall into three distinct categories:
EFFECT-BASED
DUID LAWS
Most
state DUID laws are "effect based" laws. This
legislation forbids drivers to operate a motor vehicle if
they are either "under the influence" of a controlled
substance, or if they have been rendered "incapable
of driving safely" because of their use of an illicit
drug. In order for a defendant to be convicted under
this statute, a prosecutor must prove that the driver's
observed impairment and/or incapacity was directly associated
with the ingestion of an illicit substance. To do so, prosecutors
typically rely on evidence gathered by law enforcement officers
at the scene of an accident (i.e., a driver's failure to
pass a field sobriety test, evidence that the motorist was
driving at an excessive speed, etc.), testimony from a Drug
Recognition Expert (DRE), and/or a positive result from
a blood or saliva test indicating recent consumption of
a controlled substance. For the most part, this is a multidisciplinary
standard that focuses on the totality of circumstances --
most importantly, whether the driver is observedly impaired
-- and accordingly punishes motorists who drive while impaired
from having recently used illicit drugs.
PER SE
DUID LAWS
Per se
laws prohibit drivers from operating a motor vehicle if
they have greater than a set level of a drug or drug metabolite
present in their system. Most of us are already familiar
with the most common driving-related per se laws:
those governing drunk driving which define a driver as legally
impaired per se if their blood alcohol level tests
above .08. Similar per se laws with strictly
defined cut-off levels are uncommon for DUID legislation.
(To date, only Nevada has enacted per se standards
for DUID offenses.) Why? Because, according to the
US Department of Transportation: "Forensic toxicologists
generally have failed to agree on specific [per se
levels] that could be designated as evidence of impairment.
The lack of consensus about per se levels of drugs
where impairment could be deemed makes it difficult to identify,
prosecute or convict drugged drivers in most states."
ZERO TOLERANCE
PER SE LAWS
Predictably,
politicians and police have a simple, if unscientific, solution
to researchers' failure to define per se standards
for DUID offenses: to enact "zero tolerance" per
se laws. These laws forbid drivers from operating a
motor vehicle if they have any detectable level of
an illicit drug or drug metabolite present in their person's
bodily fluids. In essence, zero tolerance per
se laws define a new, driving-related offense that is,
in the words of one of its chief proponents, "divorced
from impairment." Under this standard, any driver who
tests positive for any trace amount of an illicit drug or
drug metabolite (an inert, non-psychoactive compound produced
from chemical changes of a drug in the body), is guilty
per se of the crime of "drugged driving,"
even if the defendant was sober. In the case of marijuana,
these laws are particularly troublesome, as marijuana metabolites
are fat soluble, and therefore, remain identifiable in certain
bodily fluids (most notably, urine) for days and sometimes
even weeks
after past use. Consequently, under this law, a person
who smoked a joint on Monday could conceivably be arrested
on Friday and charged with "drugged driving,"
even though he or she is no longer impaired or intoxicated.
To
date, eleven states (see appendix) have enacted zero
tolerance per se laws: Arizona,
Georgia,
Illinois, Indiana, Iowa,
Michigan,
Minnesota,
Pennsylvania,
Rhode Island, Utah,
and Wisconsin.
FEDERAL
PROPOSALS
Politicians
at the federal level are also campaigning for the greater
enforcement of zero tolerance per se laws. In 2004,
two separate federal bills were introduced in Congress,
each seeking to mandate all 50 states enact zero tolerance
DUID laws.
H.R. 3907
Sponsor:
Rep. John Porter (R-NV)
H.R.
3907 (see appendix), introduced in the House of Representatives
on March 4, 2004, sought to withhold highway funding from
any state legislature that refused to enact mandatory minimum
penalties for anyone convicted of driving under the influence
of illegal drugs. The bill, which failed to gain any additional
co-sponsors, was referred to the following committees: House
Committee on Transportation and Infrastructure, Subcommittee
on Highways, Transit and Pipelines and the House Energy
and Commerce Committee, Subcommittee on Commerce, Trade
and Consumer Protection. H.R. 3907 failed to pass
out of either committee.
H.R. 3922
Sponsors:
Reps. Robert Portman (R-OH), Sander Levin (D-MI), Steven
LaTourette (R-OH), Mark Souder (R-IN) and
Jim Ramstad
(R-MN)
H.R.
3922 (see appendix), introduced in the House of Representatives
on March 9, 2004, mandated states to enact criminal statutes
sanctioning any driver who operates a motor vehicle "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." This proposal
was later added as a provision to the House transportation
reauthorization bill, where it passed the House of Representatives.
Although the Transportation bill eventually died in conference
committee, H.R. 3922's sponsors are expected to re-introduce
the bill in 2005, where it will likely enjoy majority support
from House members.
BLOOD
OR URINE? FLUID MATTERS
The
language of zero tolerance per se laws is critical.
Most zero tolerance DUID laws contain the following language:
It is unlawful for any person to drive or be in actual
physical control of any vehicle while there is any detectable
amount of a controlled substance or its metabolite present
in the person's body, as measured in the person's blood,
urine, saliva, or other bodily fluid.
In
order to understand the impact of this language, it is critical
to comprehend the distinction between "parent drugs"
and "drug metabolites." The term "parent
drug" refers to the identifiable psychoactive compound
of a controlled substance (e.g., for cannabis, the "parent
drug" is delta-9-tetrahydrocannabinol aka THC). However,
the term "drug metabolite" refers to something
else all together. Drug metabolites are broadly defined
as substances produced by the metabolism after a drug is
ingested. Though the presence of metabolites is indicative
that a certain drug may have been consumed at some previous
point in time,
they are (in general) not psychoactive,
nor are they evidence per se that the "parent
drug" is still present in the body.
As a result, the US Department of Justice notes that a positive
drug test result for the presence of a drug metabolite "does
not indicate ... recency, frequency, or amount of use; or
impairment."
A recent US Department of Transportation report further
adds, while a positive test for a drug metabolite is "solid
proof of drug use within the last few days, it cannot be
used by itself to prove behavioral impairment during a focal
event."
Recognizing
the fundamental differences between "parent drugs"
and "drug metabolites," let's look at the various
methods of drug detection. As stated above, most zero tolerance
DUID legislation allows for police to mandate a defendant
to have his or her "bodily fluids" screened for
the presence of drugs or drug metabolites. In most cases,
the "bodily fluids" in question are: blood, saliva,
and urine. However, whether or not a defendant tests positive
for DUID can, in many cases, come down to a matter of which
fluid is analyzed.
URINE
Urinalysis
remains the most popular means of drug detection available
in the United States. Courts have generally looked upon
urine specimen collection as a relatively non-invasive practice,
and there are national standards for urine testing in place
as well as national certification programs for laboratories
performing forensic urine drug testing. Nevertheless, urinalysis
is not suitable for detecting drug impairment
or recent drug use because the procedure only detects
drug metabolites, not the parent drugs themselves.
Presently, no dose-concentration relationship exists correlating
drug metabolite levels to drug impairment,
and it is well documented that the presence of a drug metabolite,
even when confirmed, "does not indicate ... recency,
frequency, or amount of use; or impairment."
However, because urinalysis does offer law enforcement a
multi-day window for detection (For drug metabolites other
than cannabis, this window is generally two to three days;
because marijuana's metabolites are fat soluble, their period
of detection in the urine is often much longer.) and rapid
response point-of-collection-testing (POCT) immunoassay
devices are available on the commercial market, "a
number of states with per se zero tolerance laws are currently
using urine tests to enforce their laws under which the
prosecutor must only show that the driver of the car had
prohibited metabolites in his/her system."
Needless to say, zero tolerance DUID laws that rely on urine
testing are most likely to inappropriately target otherwise
sober marijuana consumers.
BLOOD
Because
blood collection is generally viewed by the courts as invasive
and requires the use of medically trained personnel, its
use in DUID cases is often seen as impractical. However,
many European DUID laws (see appendix) rely on blood specimen
collection. This is because, unlike urinalysis, both drug
metabolites and parent drugs are present in
the blood. In general, detection times for marijuana and
other parent drugs in the blood is only a few hours,
with levels peaking immediately after drug ingestion and
then falling rapidly.
As a result, the
Department of Transportation notes, "In terms of attempting
to link drug concentrations to behavioral impairment, blood
is probably the specimen of choice."
Nevertheless, scientists have not reached a concensus on
the establishment of specific plasma concentrations that
could be designated as evidence of driver impairment. However,
several scientific reviews of automobile crash culpability
studies have indicated that THC levels in blood serum below
5 ng/ml are not associated with an elevated
accident risk.
(Such levels may be attained within 1 to 3 hours after cannabis
consumption.) Moreover, some studies suggest that
"even a THC serum level of between 5 and 10 ng/ml may
not be associated with an above normal accident risk."
SALIVA/ORAL
FLUID
Saliva
testing is a relatively new technology. It is generally
seen as non-invasive, and rapid response point-of-collection
devices exist, making it (in theory) ideal for use by police
on the side of the road. However, there is no consensus
on appropriate cutoff levels (a designated level of metabolites
that must be present in the subject's bodily fluids in order
for them to test positive; this level is generally set above
zero) for the confirmation of drugs in saliva, nor are there
any nationally established standards for oral fluid testing.
Saliva
testing detects the presence of parent drugs only, and its
detection times
are similar to blood (several hours) for drugs other than
cannabis. Unlike other drugs, cannabinoids appear to be
especially difficult to detect in oral fluids, as only a
minute amount of the drug is excreted into the saliva.
As a result, saliva testing appears to, at best, only detect
the presence of cannabis for a period of approximately one
to two hours following drug ingestion.
In
sum, recreational marijuana consumers face their greatest
risks in states with zero tolerance DUID laws reliant on
urinalysis because this process detects only drug metabolites;
it does not detect the presence of the parent drug itself.
Sober drivers are less likely to be identified as having
used cannabis in states that rely on blood and/or saliva
collection because the window of detection for parent drugs
in these fluids is, by comparison, relatively narrow. In
cases when parent drugs are detected, there still remains
no consensus regarding what concentration levels are indicative
of impairment (though general estimates regarding the recency
of drug ingestion may be ascertained). In cases regarding
the detection of marijuana in the blood, studies have associated
culpability and/or impairment at levels above 5-10 ng/ml,
but not below this threshold.
HOW
DANGEROUS IS "DRUGGED DRIVING" ANYWAY?
Though
portrayed by politicians and police as a serious problem
bordering on "epidemic," actual data is sparse
concerning the prevalence of drugged driving, and more importantly,
what role illicit drug use plays in traffic accidents.
In recent years, however, researchers have begun to examine
the impact of acute cannabis intoxication on driving performance
and traffic safety.
While
it is well established that alcohol increases accident risk,
evidence of marijuana's culpability in on-road driving accidents
is much less convincing. Although marijuana intoxication
has been shown to mildly impair psychomotor skills, this
impairment does not appear to be severe or long lasting.
In driving simulator tests, this impairment is typically
manifested by subjects decreasing their driving speed and
requiring greater time to respond to emergency situations.
Nevertheless,
this impairment does not appear to play a
significant role in on-road traffic accidents. A 2002 review
of seven separate crash culpability studies involving 7,934
drivers reported, "Crash culpability studies have failed
to demonstrate that drivers with cannabinoids in the blood
are significantly more likely than drug-free drivers to
be culpable in road crashes."
This result is likely because subjects under the influence
of marijuana are aware of their impairment and compensate
for it accordingly, such as by slowing down and by focusing
their attention when they know a response will be required.
This reaction is the opposite of that exhibited by drivers
under the influence of alcohol, who tend to drive in a more
risky manner proportional to their intoxication.
Today,
a large body of research exists analyzing the impact of
marijuana on psychomotor skills and actual driving performance.
(Much of this research is available online through NORML's
website at: http://www.norml.org/index.cfm?Group_ID=5450.)
This research consists of driving simulator studies, on-road
performance studies, crash culpability studies, and summary
reviews of the existing evidence. The result of this
research is consistent: Marijuana has a measurable but relatively
mild effect on psychomotor skills, yet it does not appear
to play a significant role in vehicle crashes, particularly
when compared to alcohol. As summarized by the Canadian
Senate's exhaustive 2002 report Cannabis: Our Position
for a Canadian Public Policy, "Cannabis alone, particularly
in low doses, has little effect on the skills involved in
automobile driving."
To
conclude, the role of cannabis consumption in on-road traffic
accidents is, at worst, unknown, and at best, minimal. In
either case, it is apparent that cannabis' adverse on-road
impact is hardly so great as to warrant the passage and
enforcement of zero tolerance DUID legislation.
SO
WHO'S BEHIND THIS "ZERO TOLERANCE" CAMPAIGN?
Over
the past five years, a small cabal of prohibitionists, police,
drug testing proponents and toxicologists have lobbied for
legislation criminalizing drivers who operate a vehicle
with inert drug metabolites present in their system. That
said, I'm going to name two specific individuals. The first
is Michael Walsh, head of the Walsh Group,
a federally funded organization that develops drug testing
technology and lobbies for rigid workplace drug testing
programs. Walsh is the former Director of the Division
of Applied Research at the US National Institute on Drug
Abuse (NIDA), and formerly served as the Associate Director
to the Drug Czar.
Michael
Walsh has been the impetus and the point man behind the
push toward zero tolerance DUID legislation for some time.
In November 2002, the Walsh Group partnered with the ONDCP
to lobby state legislatures to replace their effect-based
DUID laws with zero tolerance legislation. Then, at a joint
ONDCP/NIDA conference held in February of this year, Walsh
pronounced, "There is clearly a need for national leadership
at the federal level to develop model statutes and to strongly
encourage the states to modify their laws." Within
two weeks, H.R. 3907 and H.R. 3922 were introduced in Congress
to mandate states to do just that. Today, the Walsh Group
remains the primary lobby and educational organization on
DUID-related information, working in concert with the Drug
Czar's office to promote zero tolerance DUID legislation.
The
second prominent proponent of the enactment of zero tolerance
DUID legislation is former 1970s Drug Czar Robert DuPont
-- another ex-NIDA director who now helms the workplace
drug testing consultation firm Bensinger, Dupont & Associates.
Over the past two decades, Dupont has been a key player
in the development and enactment of workplace drug testing
guidelines, including the federal regulations that govern
the testing of federally licensed drivers.
Dupont is now lobbying to expand these federal guidelines
to apply to all motorists. He also favors the establishment
of random, roadside drug testing checkpoints.
"We must move away from the concept of you can't drive
impaired by drugs to you can't drive on drugs at all,"
he says,
noting that drivers
who test positive for drug metabolites but are otherwise
unimpaired should be stripped of their license and then
be monitored through regularly scheduled drug tests, including
hair testing, for a period of two to five years.
"Most people don't need [drug] treatment, they need
a reason not to use drugs," and the enforcement of
zero tolerance DUID legislation gives them that incentive,
he believes.
HOW
TO COMBAT "ZERO TOLERANCE" DUID LEGISLATION
So
now that you are aware of the background of zero tolerance
DUID laws and who's campaigning for them, the next question
is, how do we effectively combat this legislation?
From
a legislative standpoint, it is vital that we express to
politicians the fact that we, as do our opponents, strongly
support the goal of keeping impaired drivers off the road
-- regardless of whether the driver is impaired from alcohol
or other drugs. However, zero tolerance DUID laws do little
to meet this goal. Rather, they are an attempt to misuse
the traffic safety laws in order to identify and prosecute
recreational drug users per se by inappropriately
defining sober drivers who present no traffic safety risk
as legally being impaired.
By
comparing zero tolerance DUID laws to our existing laws
prohibiting drunk driving, their intellectual dishonesty
becomes that much more apparent. Do drunk driving laws punish
drivers for simply consuming alcohol? No. They sanction
drivers who are impaired by alcohol to the point that they
are no longer safe to operate a motor vehicle. Why not apply
this same standard to DUID legislation? Do drunk driving
laws target drivers for having previously consumed alcohol
some days or weeks earlier? Of course not. They sanction
drivers for present intoxication, and only if that intoxication
is presently affecting their driving performance. Here again,
why not apply this same common-sense standard to DUID legislation?
Do drunk driving laws set their per se levels at
zero? No, they employ scientifically sound cutoff
levels that can be correlated to impairment of performance.
Once again, why not apply this same standard to DUID laws?
At
a minimum, state DUID laws should identify "parent
drugs," not simply inactive drug metabolites. Further,
these laws must employ scientifically sound cutoff levels
that correlate drug concentration to impairment of performance,
similar to the 0.08 BAC standard that now exists for drunk
driving in most states. There must also be assurances that
these laws mandate any and all drug testing to be performed
and confirmed by accredited state labs using uniform procedures
and standards. It is my opinion that such measures, if enacted
by the states, would be a reasonable alternative to unsound
"zero tolerance" drugged driving legislation.
I
FOUGHT THE LAW AND THE LAW WON
Finally,
if you are practicing law in a state that has already enacted
zero tolerance DUID legislation, here are some suggestions
on challenging the the law's enforcement.
1)
Epidemiological data is lacking on the number of people
who drive under the influence of controlled substances,
as is any objective evidence that zero tolerance DUID laws
have a deterrent effect on drivers or have led to a reduction
in the number of motorists driving under the influence of
drugs. In addition, according the Department of Transportation,
"The role of drugs as a causal factor in traffic crashes
involving drug-positive drivers is still not understood."
2)
There exists no scientific consensus on appropriate cutoff
levels for detecting the presence of drugs and/or drug metabolites
in bodily fluids other than urine. In particular, oral fluid
assays for most drugs of abuse are still in developmental
stages. As a result, "There are no nationally established
standard methods for oral fluid drug testing, nor are their
any certification programs currently available" to
validate the accuracy of the test result.
3)
Neither the law nor the testing devices can delineate between
chronic and occasional drug use. Is it appropriate to punish
an occasional user the same way under the law as a chronic
offender?
4)
Most importantly, there exists no scientific standards
correlating drug concentration to impairment of performance.
There exists no known dose concentration relationship correlating
drug metabolite levels in the urine or blood to impairment,
nor does there exist a consensus regarding at what concentration
levels the detection of a parent drug in the blood or saliva
is associated with driver impairment.
5)
All positive test results must be confirmed at an accredited
lab for accuracy. However, most legislatures fail to appropriate
funding for confirmation testing, or allow for the establishment
of accredited labs to perform this testing. Non-accredited
labs may use cutoff standards that vary from the national
guidelines, thus bringing the accuracy of their test results
into question.
6)
Finally, if the presence of illicit drugs or drug metabolites
were detected through the use of a rapid point-of-collection-testing
(POCT) immunoassay devices (This would only apply to urine
and oral collection devices.), then confirmation testing
in a toxicology lab is required, as is independent verification
of the initial result. (Studies have found that police
officers are more likely than trained lab technicians to
make "human errors" using POCT devices and interpreting
the results.) Lastly, most POCT technology is not
FDA approved, and thus, is open to legal challenges.
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