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Home > Research Articles > Driving drugged often not enough to prosecute

Scripps Howard

Friday, November 15, 2002

Across most of the country, driving under the influence of illegal drugs is not enough to result in conviction. Prosecutors often have to prove that those drugs led to dangerous driving.

A study released Thursday finds only a handful of states have "zero tolerance" laws against drugged driving on the books, even as drug abuse surveys suggest that millions of Americans are getting behind the wheel buzzed by marijuana, cocaine and other performance-altering drugs.

The most recent federal survey on drug abuse indicates that more than 9 million Americans reported driving within two hours of consuming an illegal drug at least once in the past 12 months.

"We know from surveys of people taking breathalyzer tests that a third are also using illegal drugs, but the hit rate is almost as high for people who pass breathalyzer tests," said Michael Walsh, an international expert and consultant on substance abuse who led the two-year review of state drugged driving laws.

The effort also involved the American Bar Association's committee on substance abuse, with financial support from the Robert Wood Johnson Foundation and the federal Highway Traffic Safety Administration.

The enforcement situation contrasts starkly with drunk driving laws in force in all 50 states that set a threshold for enforcement based on blood alcohol content.

"On its face, you'd think that driving with a substance in your body that's illegal to possess in your pocket would itself be illegal, but that's not the case in most states," said Walsh.

"There is an assumption that if we can identify the drunk drivers, we are also getting all the drugged drivers. That's not true. There are literally millions of Americans who are driving under the influence of drugs, often with little or any alcohol," Walsh said.

Police have well-established tools, including their sense of smell and Breathalyzer tests, to tell if a driver is under the influence of alcohol. But the signs of drug impairment are not always so obvious, and the science of detecting illegal drugs in the blood or urine is more intrusive.

"The technology of screening for many illegal drugs is actually quite good, and getting better, but the laws for using these techniques remains inadequate in many states," said Linda Chezem, a law professor at Purdue and Indiana universities and a senior circuit court judge in Indiana.

Walsh noted that at least 50 drug screening tests that get results from urine samples within 10 minutes are on the market, and that new tests using saliva samples are already in use in some workplaces, although they're not yet approved by the U.S. Food and Drug Administration. The key is providing police the legal backup and technical competence to use those tests.

Procedures that make gathering and presenting evidence more difficult or complex tend to discourage police and prosecutors from pursuing drugged driving charges, said Chezem, who also served on the committee that wrote the report.

Although most states require individuals to supply urine or blood for testing if asked by the police, penalties for refusing vary widely. Some only punish the driver if the original charge of drugged driving can be proved in court.

Only Arizona, Georgia, Illinois, Indiana, Iowa, Minnesota, Rhode Island and Utah have zero tolerance laws for any prohibited substance or drug in a driver's body, the study found. The remaining states have laws against driving "under the influence" of illegal drugs, but with various definitions of impairment and how to prove it.

"There's no bright line for how many nanograms of cocaine or percentage of metabolites of marijuana has to be in the blood to affect an individual's ability to drive. People do vary to some degree, and defense lawyers are more than ready to use that ambiguity," said Jerry Landau, special assistant attorney in Phoenix and a member of the group that wrote the report.

"This isn't an issue of arresting more people or jailing more people; the focus is on highway safety," Landau said. Although he has no statistics on how many more drugged drivers are being caught in Arizona now than were before zero tolerance law took effect in 1990, "I know there are more because before, we weren't prosecuting hardly any unless they had already been involved in a fatal crash."

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