Candace Lightner, President, Founder Ed Wood, President This paper was written by Candace Lightner and Ed Wood
1648 Taylor Road #484 Morrison, CO 80465
Port Orange, FL 32128 Email: email@example.com
Email: clightner@WeSavelives.org (303) 478-7636
Driving Under the Influence of Drugs (DUID)
Prepared for The Committee on Transportation and Infrastructure
April 2, 2015
“Essentially what we surmised is that in the state of Missouri you can smoke marijuana, drive a motor vehicle, fail to yield and kill someone, just don’t have the marijuana on you at the time of the crash.”
Trish Bottfield, whose nephew was killed in a crash involving a driver with marijuana in his system and was not charged.
Drugged driving affects each of us at any given time of the day. At a NIDA conference (, Dr. Mike Walsh noted that “Several studies in the United States and a collaborative US-EU project found that at least 35% of people stopped for erratic driving, drivers involved in a crash, and fatally injured drivers had at least one drug in their system, and many were under the influence of both drugs and alcohol.” NHTSA’s recent 2014 Roadside Survey concluded that the number of drivers with alcohol in their system has declined by nearly one-third since 2007, and by more than three-quarters since the first Roadside Survey in 1973. But that same survey found a large increase in the number of drivers using marijuana or other illegal drugs.
Current laws, tools and training cannot cope with this growing problem:
· Drugged drivers frequently escape prosecution which means -
· No conviction which means -
This problem is not unique to America. Other countries, including New Zealand, Australia, Germany, France have implemented national drugged driving legislation, technologies and training. The latest country to act aggressively against drugged driving is Britain, which implemented drugged driving limits for sixteen drugs on March 2, 2015, after realizing that prosecution of DUID was only 2% of the rate of DUI alcohol, whereas its prevalence was 33% that of DUI alcohol. The British distinction is that they have the data to show the need for legislation. The United States doesn’t.
The United States has studied the problem for decades but has yet to take action. The latest study to identify DUID as a serious and growing problem is the GAO’s February 2015 report "Drug-impaired driving“. We rapidly accept legalization and commercialization of psychoactive drugs with no legal means to effectively provide for public safety or common sense. Colorado Governor Hickenlooper commented on Colorado’s legalization of marijuana, “If I could’ve waved a wand the day after the election, I would’ve reversed the election. This was a bad idea.” The results of these bad and costly decisions from our policy makers fall upon us, the innocent public, who suffer the devastating consequences on our roadways. Those of us who become victims and survivors of drugged driving experience an ongoing victimization, first by the drugged driver, then it continues with an ill-equipped and ineffective legal system unresponsive to our pleas.
DUID is not simply a problem of marijuana-impaired drivers. The 2007 National Roadside Survey  shows marijuana was the most common single drug found in drivers, followed by stimulants like cocaine and methamphetamine, then poly-use (more than one class of drug) and narcotic-analgesics like heroin and synthetic opioids. Dr. Christine Moore writes, “we have seen a large increase in heroin use recently probably because it is much cheaper than oxycodone.”
Perhaps more convincing than large scale studies of drug presence is a small scale study of drug impairment in drivers charged with DUI and either vehicular homicide or vehicular assault. DUID Victim Voices found that although marijuana was the most commonly cited drug in the 50 drugged drivers identified, marijuana was found alone in only 4% of that cohort of drugged drivers. Three-quarters of drugged drivers were on multiple drugs or drugs plus alcohol. After marijuna, the most common classes of drugs cited were stimulants, heroin and other opiate/opioids, and benzodiazepines.
As noted above, NHTSA and GAO report that the prevalence of driving under the influence of alcohol is gradually declining at the same time that the prevalence of drugged driving is increasing. 23 U.S Code 405 National priority safety programs addresses impaired driving, but all listed programs are specific to alcohol impairment. Multiple highway safety organizations including AAA (American Automobile Association), MADD (Mothers Against Drunk Driving) and GHSA (Governors Highway Safety Association) have all added drugged driving to their agenda. We Save Lives and DUID Victim Voices request revisions to 23 U.S Code §405 to provide incentives to States to implement technologies, practices and laws specifically directed at the measurement and deterrence of drugged driving.
The White House’s Office of National Drug Control Policy (ONDCP) has identified drugged driving as a policy priority, and established a goal in the agency’s 2011 National Drug Control Strategy to reduce drugged driving 10 percent by 2015. This goal was not met. Concrete actions are needed to stop the cultural acceptance of Driving Under the Influence of Drugs (DUID). Concrete actions like national alcohol per se laws, administrative license revocation and incentives for ignition interlock devices address the DUI-alcohol epidemic. No similar actions or incentives have been put in place to deal with DUID.
Congress should support eight initiatives to stop DUID, some of which have already been adopted by various states, as listed in Appendix 1 - Reference Statutes. With one exception, initiatives are listed in order of proposed urgency. The exception is initiative #8, calling for zero tolerance laws for DUID. We expect that zero tolerance laws would have the largest impact in reducing drugged driving of all proposed initiatives. Unfortunately, we recognize that is also the most the difficult initiative to adopt.
1. Separate DUI alcohol and DUID statute citation numbers. Not being able to distinguish drug-impaired from alcohol-impaired driving arrests in state records significantly impedes the States’ ability to assess the extent of drug-impaired driving and evaluate the impact of countermeasures. Lack of data may lead states like Washington to believe they address drugged driving by instituting per se laws for marijuana’s THC. The problem is far larger than that. Separate DUI and DUID citations have been recommended by NHTSA  and GHSA.
2. Use oral fluid devices to quickly and more effectively test for drug presence, preferably at the roadside, as is done with breath testing for alcohol. Commercially available devices test for opiates like heroin, cocaine, amphetamines, cannabis, and other drugs.
3. Implement mandatory testing of all (surviving and deceased) drivers involved in crashes that result in death or serious bodily injuries. Today’s lack of testing ensures DUID remains under-reported and often without resolution. For example, in 2013, 80% of Colorado’s deceased drivers were tested and reported to the Colorado Department of Transportation, but only 13% of surviving drivers were tested and reported.
4. Provide additional training for and use of Drug Recognition Experts (DREs) and officers trained in Advanced Roadside Impaired Driving Enforcement (ARIDE) since most officers are not qualified to identify drugged drivers.
5. Reduce delays in collecting blood samples through the use of electronic warrants. A recent study in Colorado revealed that traditional warrants add an average of 1½ hour to the normal two hours required to collect a blood sample in cases of death or serious bodily injury. 90% of marijuana’s THC is cleared from the blood within the first hour after smoking, making blood test results irrelevant after such a delay.
6. Enhance penalties for driving under the influence of combinations of drugs or drugs plus alcohol, recognizing that combinations of drugs can be more impairing than drugs individually. This is a strong NHTSA recommendation.
7. Implement effective treatment programs such as the 24/7 sobriety program for chronic offenders of both alcohol and drugs.
8. Adopt Zero Tolerance laws to facilitate drugged driving prosecution as alcohol per se laws do for drunk driving prosecution. Most states currently have zero tolerance for alcohol in minors, yet we hesitate to do that for illegal drugs. The Department of Transportation has a zero tolerance drug policy for employees involved in safety-sensitive positions such as commercial drivers. They are thus distinguished from per se level laws that attempt to define various drug concentrations in blood that prove brain impairment. Zero tolerance policies recognize that there is no level of any drug above which, everyone is impaired, and below which, no one is impaired. This is not due to a lack of research; it’s human biology. The impossibility of determining per se levels of all scheduled drugs becomes readily apparent when one considers the multiple thousand combinations of drugs that must also be considered. To deal with the concern of inappropriate arrests that could occur with zero tolerance enforcement, some jurisdictions sensibly limit application of zero tolerance laws to defendants that have been shown to be impaired by behavioral measuressuch as Standardized Field Sobriety Tests.
We request revisions to 23 U.S. Code §405 to provide incentives to States to implement the above initiatives to reduce drugged driving. Appendix 1 – Reference Statutes shows that the proposed initiates, far from being unrealistic, are already adopted in many locales.
The combination of all eight methods will act as a deterrent to drugged driving, and demonstrate that DUID will not be tolerated. Most importantly, they will provide the means to collect reliable and critical data that will enable States to measure the impact of their initiatives and develop effective long-term strategies to deal with this growing threat on our highways.
Specific Requested Action
Revise 23 US Code § 405 (d) that specifies grants to States that implement impaired driving countermeasures. There are specific grants to States to reduce alcohol impairment (such as grants to adopt and enforce mandatory alcohol-ignition interlocks) but none for drugged driving impairment.
DUID is a growing problem made more acute by the alarming acceptance of recreational drugs and self-medication. This was brought home by a recent AAA survey that found “while two-thirds of those surveyed feel that those who drive after drinking alcohol pose a “very serious” threat to their personal safety, just over half feel the same way about drug use. Unfortunately, at any given moment, we share the road with an untold number of drugged drivers. Our experience with drunk driving shows we can address this problem. Why aren’t we doing the same with drugged driving?
The Institute for Behavior and Health estimates that 20% of traffic fatalities are attributable to drugged driving. Estimates are needed because no one measures DUID fatalities. It’s time to change that. It can be done at a modest expense obtained by either an additional appropriation, or reallocating current funds allocated to addressing impaired driving. It’s already identified as a National priority. It’s certainly a priority for DUID victims. It’s time to act.
· DRE – Drug Recognition Expert
· ARIDE – Advanced Roadside Impaired Driving Enforcement
· per se levels – It is a misdemeanor to drive with a specified level of alcohol or controlled drug in a driver’s body; the level intended to identify impairment. Establishing a per se level for alcohol is well accepted worldwide. Establishing per se levels for the thousands of impairing drug and drug combinations is not.
· Zero Tolerance – It is a misdemeanor to drive with any level of a prohibited psychoactive drug in a driver’s body if that driver shows evidence of impairment; any level beyond zero does not necessarily imply impairment, but rather a violation that can only be prosecuted if either there is behavioral evidence of impairment or probable cause for DUI has been established. Zero tolerance has been accepted to deal with drugged driving, since establishing per se levels is not generally accepted.
· SFST – standardized field sobriety test
· NHTSA – National Highway Traffic Safety Administration
· GAO – General Accountability Office
Appendix 1 – Reference Statutes
The eight recommendations have been adopted in one form or another by the following states. Although the states may have adopted the recommendations in statute, implementation and enforcement varies widely.
1 Separate DUI-alcohol, DUID and alcohol/drug combination statute numbers
AL, AZ, CA, DE, GA, HI, IN, KS, KY, LA, MD, MN, MS, MT, NV, NM, NY, ND, OK, PA, SC, VT, VA, WV, WY. Note that this conflicts significantly with common wisdom that is out of date. Although these states have separate statute citation numbers for alcohol, drugs and alcohol/drug combinations, few if any, take advantage of the separation to analyze their DUID problem and publish this information for use by policy makers. See Appendix 3 - Separate DUI and DUID Statute Citation Numbers for further details.
2 Use roadside oral fluid drug testing technology. This is allowed in approximately 16 states: AL, AR, AZ, CO, GA, IN, KS, LA, MO, NV, NY, NC, OH, OK, SD, UT. Ideally, all states would include oral fluid roadside testing in the Implied Consent statute and subsequent statutes regarding the use of preliminary tests.
Pilot programs or evaluations have been and/or are still being conducted in CA, VT, FL, and many others. None of these states currently use roadside oral fluid drug testing routinely, but some jurisdictions in AZ, CA and NV are doing so.
3 Mandatory testing of drivers involved in fatal or serious bodily injury crashes
AZ, FL, HI, ME, MN, MO, NV, NY and SC. See Appendix 4 - Mandatory Drug Test Rationale (Colorado example) for further details.
4 Drug Recognition Experts
All states have DRE programs but DREs are not universally available.
5 Reduce delays in collecting blood samples through the use of electronic warrants.
AZ, CA, GA, some local jurisdictions in CO, ID, TX, UT
6 Enhanced penalties for drivers under the influence of multiple drugs
To the best of our knowledge this law does not now exist in any state.
7 Implement 24/7 sobriety programs
SD, NB, MT
8 Zero Tolerance DUID laws
AZ, DE, GA, IA, IL, IN, MI, MN, NC, PA, SD, RI, UT, WI. Note that laws vary widely in scope.
Appendix 2 – Proposed changes to 23 US Code § 405 (d)
The following proposed revisions implement the eight methods identified above to reduce drugged driving (revisions in bold):
· (d) (3) (B) (i) a statewide impaired driving task force in the State developed a statewide plan during the most recent 3 calendar years to address the problems of impaired driving due to alcohol, due to drugs, and due to the combination of alcohol and drugs; or
· (d) (3) (C) (i) (I) conducted an assessment of the State’s impaired driving program during the most recent 3 calendar years that includes an impairment by alcohol, impairment by drugs, and impairment by a drug/alcohol combination; or
· (d) (4) (B) (iii) court support of high visibility enforcement efforts, training and education of criminal justice professionals (including law enforcement and law enforcement liaisons, prosecutors and Traffic Safety Resource Prosecutors, judges and judicial outreach liaisons, drug recognition experts, ARIDE training and probation officers) to assist such professionals in handling impaired driving cases, hiring traffic safety resource prosecutors, hiring judicial outreach liaisons, and establishing driving while intoxicated courts;
· (d) (4) (B) (v.5) implementing roadside drug testing technology;
· (d) (4) (B) (v.6) implementing electronic warrant systems to reduce delays in collecting biological samples needed for drug tests;
· (6.1) Grants to states that adopt enhanced drugged driving deterrence laws.-
· In general. – The Secretary shall make a separate grant under this subsection to each State that adopts and enforces one or more of the following enhanced drugged driving deterrence laws:
o Mandatory drug testing of all drivers (deceased and surviving) involved in crashes that result in death or serious bodily injury.
o Enhanced penalties for driving under the influence of combinations of drugs or drugs plus alcohol.
o 24/7 sobriety monitoring program for repeat offenders
o Per se violation for driving with any level of scheduled drugs in the body of a driver shown to be impaired by behavioral measures.
· Use of funds.- Grants authorized under subparagraph (A) may be used by recipient States for any eligible activities under this subsection or section 402.
· Allocation.- Amounts made available under this paragraph shall be allocated among States described in subparagraph (A) on the basis of the apportionment formula set forth in section 402 (c) multiplied by the number of enhanced drugged driving deterrence laws enforced.
Appendix 3 – Separate DUI and DUID Statute Citation Numbers
NHTSA reported to Congress in 2009 that, “Only two States (Hawaii and New York) have DUID statute citation numbers separate from their alcohol DUI laws. In all other States, a driver violates a DUI statute if the driver drives under the influence of alcohol, drugs, or a combination of alcohol and drugs.”
This may have once been true, but it is no longer. NHTSA published A State-by-State Analysis of Laws Dealing With Driving Under the Influence of Drugs in 2009. This document provides references to each state’s DUI statute and has since been updated by NMS Labs. Using the updated document’s identification of state statutes, DUID Victim Voices reviewed each current statute, all of which are available on-line. Each statute is written differently, but at least 25 states have statues that clearly enable officers to cite a driver with DUI alcohol, DUID, or a combination, each separately or in combination.
AL, AZ, CA, DE, GA, HI, IN, KS, KY, LA, MD, MN, MS, MT, NV, NM, NY, ND, OK, PA, SC, VT, VA, WV, WY all have separate DUI alcohol and DUID statute citation numbers.
California implemented its statute providing separate citation numbers for alcohol, drugs and combinations of alcohol and drugs effective January 1, 2014. Below are portions of the statutes of AL, AZ and DE as examples to show that more than Hawaii and New York have such statutes.
Alabama (Code of Alabama, Chapter 32 – Motor Vehicles and Traffic, Section 32-5A-191)
(a) A person shall not drive or be in actual physical control of any vehicle while:
(1) There is 0.08 percent or more by weight of alcohol in his or her blood;
(2) Under the influence of alcohol;
(3) Under the influence of a controlled substance to a degree which renders him or her incapable of safely driving;
(4) Under the combined influence of alcohol and a controlled substance to a degree which renders him or her incapable of safely driving; or
(5) Under the influence of any substance which impairs the mental or physical faculties of such person to a degree which renders him or her incapable of safely driving.
Arizona (Arizona Revised Statutes Section 28-1381)
A. It is unlawful for a person to drive or be in actual physical control of a vehicle in this state under any of the following circumstances:
1. While under the influence of intoxicating liquor, any drug, a vapor releasing substance containing a toxic substance or any combination of liquor, drugs or vapor releasing substances if the person is impaired to the slightest degree.
2. If the person has an alcohol concentration of 0.08 or more within two hours of driving or being in actual physical control of the vehicle and the alcohol concentration results from alcohol consumed either before or while driving or being in actual physical control of the vehicle.
3. While there is any drug defined in section 13-3401 or its metabolite in the person's body.
4. If the vehicle is a commercial motor vehicle that requires a person to obtain a commercial driver license as defined in section 28-3001 and the person has an alcohol concentration of 0.04 or more.
Delaware (Delaware Code 21 Del. Code Section 4177)
(a) No person shall drive a vehicle:
(1) When the person is under the influence of alcohol;
(2) When the person is under the influence of any drug;
(3) When the person is under the influence of a combination of alcohol and any drug;
(4) When the person's alcohol concentration is .08 or more; or
(5) When the person's alcohol concentration is, within 4 hours after the time of driving .08 or more. Notwithstanding any other provision of the law to the contrary, a person is guilty under this subsection, without regard to the person's alcohol concentration at the time of driving, if the person's alcohol concentration is, within 4 hours after the time of driving .08 or more and that alcohol concentration is the result of an amount of alcohol present in, or consumed by the person when that person was driving;
(6) When the person's blood contains, within 4 hours of driving, any amount of an illicit or recreational drug that is the result of the unlawful use or consumption of such illicit or recreational drug or any amount of a substance or compound that is the result of the unlawful use or consumption of an illicit or recreational drug prior to or during driving.
Having separate citation numbers for DUI alcohol, DUID, and DUI due to combinations of alcohol and drugs is a necessary first step to enable states to understand their prevalence and impact of DUID, and then to enact policies to reduce or eliminate drugged driving and its consequences. Law enforcement officers must then be trained and equipped to identify drugged drivers, just as today they can identify drunk drivers. State judicial agencies must provide data coding and retrieval mechanisms to enable access to DUID citations, their causes, impacts, and judicial outcomes. And finally, states must fund analysis of the resulting DUID data to monitor DUID trends, causes, costs, and judicial outcomes. These analyses should be available for public education, and for use by policy makers to craft legislation and regulations to deal with the consequences of DUID.
Appendix 4 – Mandatory Drug Test Rationale (Colorado example)
Alcoholic odors, slurred speech, stumbling gait, and Preliminary Breath Testers (Breathalyzers) help officers identify drunk drivers. None of these tools suffice to quickly identify drugged drivers. Officers must establish Probable Cause (PC) to justify testing a biological sample for drugs. This results in the following:
1. Drivers causing death or serious bodily injury are not adequately evaluated or prosecuted if there is no evidence of alcohol impairment.
2. Laboratory reports are invalidated, limiting justice for victims.
3. Delays caused by developing PC and warrants compromise laboratory test value.
Amend ¶42-4-1301.1 to require drug testing of all drivers involved with crashes that result in fatalities or serious bodily injuries. Require that all drug test results be reported to Coloado Department of Transportation (CDOT) for statistical analysis.
Limited mandatory drug testing can partly offset the difficulty of convicting drugged drivers, compared with convicting drunk drivers. This can be done at minimal cost, since most costs would be recovered from defendants under current law. The vast majority of drivers charged with vehicular homicides or vehicular assaults are already charged with DUI, justifying a mandatory drug test for all such drivers.
1. The Governors Highway Safety Association has published the following policy recommendation:
“increase the testing and reporting of drug testing information on fatally injured drivers”
2. Colorado tests & reports a minority of drivers involved with crashes that result in fatalities. 2012 data:
a. 632 drivers in 474 fatalities, 288 tested, 78 positive for drugs (CDOT)
b. 35 vehicular homicide charges (Colo State Judicial)
3. The vast majority of vehicular homicide/assault defendants are charged with DUI. 2013 data:
a. 222 vehicular homicide/assault defendants (Colo State Judicial through 10/1/2014)
b. 174 (78.4%) of the above were also charged with DUI
c. 48 were not charged with DUI, but 25 of those were charged with hit and run. Drivers often flee from the scene to escape a DUI charge and conviction.
4. ¶42-4-1301.1 requires coroners to drug test all deceased drivers involved with fatalities, but does not require reporting of those results. In 2013, 80% of deceased drivers were tested and reported to CDOT, but only 13% of surviving drivers were tested and reported to CDOT. 45% of the latter tested positive for drugs.
1. Isn’t mandatory blood testing a 4th amendment violation?
¶42-4-1301.1 Expressed Consent law requires breath or blood testing when needed for public safety. This proposal simply expands the conditions already in place, but it requires “drug testing”, rather than “blood testing” to stimulate the state to adopt oral fluid testing, already permitted by ¶42-4-1301.1 (8). Similar laws are in place in AZ, FL, HI, ME, MN, MO, NV, NY and SC.
2. Doesn’t the SCOTUS Missouri vs. McNeely ruling require warrants before drug testing?
The Missouri vs. McNeely ruling is limited to testing for alcohol. Alcohol is metabolized in a predictable, linear fashion so that timing of blood draws is much less critical than it is for drugs. The THC in marijuana drops 90% within the first hour after smoking, so the logic used for Missouri vs. McNeely does not apply to drugs.
 “Results of the 2013-2014 National Roadside Survey of Alcohol and Drug Use by Drivers,” NHTSA Traffic Safety Facts Research Note, DOT 812 118, February 2015
 “Drug-impaired driving,” GAO-15-293, February 2015
 op.cit. “Drug-impaired driving”, Table 1
 Personal communication, Christine Moore, PhD, Immunalysis Corp, Pomona, CA, March 31, 2015
 DUID Victim Voices 2013 study, unpublished
 op.cit. Traffic Safety Facts, DOT 812 118
 op.cit. Drug-impaired driving, GAO
 op.cit. Traffic Safety Facts, DOT 812 118
 “Drug-Impaired Driving: Understanding the Problem and Ways to Reduce It: A Report to Congress,” DOT HS 811 268, p 15, December 2009
 “Collecting Oral Fluid Evidence in Drugged Diving Cases,” Rennick, P and Flintoft, J, For the Road, Idaho Prosecuting Attorneys Association, Oct 2013 V 7 No 4
 Rocky Mountain HIDTA analysis, Jan 19, 2015
 DUID Victim Voices 2013 study, unpublished
 “Developing Science-Based per se Limits for Driving under the Influence of Cannabis,” Grotenhermen, Franjo et al, September, 2005
 The Effect of Cannabis Compared with Alcohol on Driving,” Sewell, R.A. et al, The American Journal on Addictions, 18: 185–193, 2009, DOI: 10.1080/10550490902786934
 op.cit “Drug-Impaired Driving: Understanding the Problem and Ways to Reduce It,” p 16
 Institute for Behavior and Health, Public Policy Statement, www.druggeddriving.org
 State vs. Marsini (2010 – Larimer County) – underage driver who admitted to smoking a joint earlier and had no alcohol on his breath after killing a pedestrian was not tested, and eventually charged only with failure to wear a seat belt.
 State vs. Fabrizius (2010 – Weld County) – Methamphetamine-impaired driver was convicted of vehicular homicide due to reckless driving (Class 4 felony), rather than due to DUI (Class 3 felony which doubles the sentence range).
 Missouri v. McNeely, SCOTUS 2013. The median time between officer dispatch to a fatality/injury crash and a blood draw is over 2 hours. Blood THC levels decline 90% within the first hour after smoking.
 2014-2015 Policies and Priorities, GHSA, ghsa.org/html/publications/pdf/14-15PP.pdf
 Rocky Mountain HIDTA analysis, Jan 19, 2015