Overview
Drugged
driving affects each of us at any given time of the day. At a NIDA conference (Drugged Driving: Future Research Directions), 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 -
- No
punishment or accountability which means -
- No
rehabilitation which means -
- No
justice for the victim/survivor and
- No
protection for society
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.
Requested Action
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.
Identified
Need
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 measures such 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.
Conclusion
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.
Definitions
·
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)
The Problem
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.
Legislative Remedy
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.
Rationale
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.
Supporting Data
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.
FAQs
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.
