Drug Czar, Prohibition Establishment Seek "Zero Tolerance" for "Drugged Driving" -- Sober Marijuana Users in the Crosshairs 11/22/02

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In a coordinated series of announcements beginning late last week, federal agencies and private sector prohibitionists opened a new front in the drug war -- this time targeting "drugged driving." But the solution they are proposing, "zero-tolerance" laws that would consider drivers with even the "mere presence" of illicit drugs in their system as guilty of Driving While Intoxicated (DWI, or in the drug czar's lexicon, DUID -- driving under the influence of drugs), seems designed more to further criminalize marijuana smokers than to improve highway safety.

It is one of the cruel ironies of the drug war that relatively innocuous marijuana -- by far the most widely used illicit drug -- remains detectable in peoples' blood for up to 10 days after smoking a single joint. Under the "zero-tolerance" model legislation the drug czar and others are proposing, the person who smoked a joint on Friday night could be busted for DWI a week later and regular pot smokers, in whom cannanaboid metabolites are presumably always present, could be subject to a DWI arrest any time they got behind the wheel.

Eight states (Arizona, Georgia, Illinois, Indiana, Iowa, Minnesota, Rhode Island and Utah) currently have what are referred to as "per se" laws, meaning the mere presence of illicit drug metabolites is considered evidence of intoxication. The rest of the nation should follow their lead, said Dr. Michael Walsh, head of the President's Advisory Committee on Drugs under President Bush the elder, and lead author of a massive study of drugged driving done under the auspices of the Robert Woods Johnson Foundation's (RWJF) Substance Abuse Research Program and the American Bar Association's Standing Committee on Substance Abuse.

"Driving under the influence of drugs, other than alcohol, has become a significant problem, but drugged drivers are not detected as often as drunk drivers," said Walsh at a November 14 press conference flogging the study that was the opening shot in the new offensive. "There is a lack of uniformity in the way state laws approach drugged driving, there are no national standards for testing drugged drivers, and too few police officers are trained to detect drivers who may be under the influence of drugs," he warned, citing figures from the federal Substance Abuse and Mental Health Services Administration (SAMHSA) that suggest as many as eight million Americans drive under the influence of illicit drugs each year.

"If DUID laws were consistent and easier to apply, we could identify these individuals and get them into treatment before they become a serious threat to public safety," Walsh added. There are other ways of dealing with drugged drivers. Some states require that the drugs render a driver "incapable of safely operating a vehicle." Other states require that the drug "impair" the driver's ability to operate a vehicle safely or require the driver to be "under the influence or affected by an intoxicating drug."

But that's not good enough, said Walsh and his fellow conferees. They found that most state laws require prosecutors to prove that the use of an illegal drug caused the driving impairment, thus few people are ever prosecuted, complained Special Assistant Maricopa County Attorney Jerry Landau of Phoenix. But Landau and his fellows would get around that rather substantial obstacle -- having to actually prove impairment -- by simply defining the presence of any illicit drug residues as evidence of intoxication. "Zero-tolerance" laws "simply make it a criminal offense to operate a vehicle while having a drug or a drug metabolite in one's body or bodily fluids," explained Landau.

"In the case of driving under the influence of alcohol, there is a scientifically proven and defined relationship between alcohol consumed and impaired driving," Landau continued. But the model legislation proposed by Walsh and Landau would break that link when it comes to illicit drugs. The model legislation assumes that the presence of even drug metabolites indicates impairment. But that has not been proven to be the case, particularly when it comes to marijuana.

"Marijuana does not impair driving," said Dr. Mitchell Earleywine, an expert on addiction and personality at the University of Southern California and author of the just published Understanding Marijuana: A New Look at the Scientific Evidence. "Robbe (1998) got people high and had them drive around in the Netherlands. They had a little trouble staying smack in the center of their lanes, but showed no other problems. They tended to slow down, increase the distance between their car and the car in front of them, and refrain from trying to pass other vehicles. In short, they drove safely despite marijuana intoxication," he told DRCNet. [For links to the scientific literature, see the bottom of the article.]

"Also, three studies have shown that people who tested positive for THC were no more likely to be at fault in accidents than people with no drugs detected," Earleywine continued. "With that in mind, if we want safe roads, we should focus on field sobriety tests rather than urine screens. If cops want to stop people who are driving recklessly and have them touch their nose, walk a straight line, and ride a unicycle, that's fine. If they want them to pee in a cup, though, they're wasting their time," he argued. "THC doesn't affect driving, and a lot of the drugs that they would detect in urine maybe left over from previous use. A person could have used a drug weeks before and no longer be impaired but still test positive in a urine screen."

Marijuana researcher Dr. Ethan Russo of Montana Neurobehavioral Specialists in Missoula echoed Earleywine's conclusions. "Based on the science, there is no rational basis for the federal government to impose a zero tolerance test for cannabis or its metabolites with the prospect that its implementation will improve highway safety," he told DRCNet. "Cannabis in isolation rarely causes serious impairment in motor skills or driving safety. Blood levels of THC and urinary measurement of THC metabolites do not correlate with brain levels or mental effects in any meaningful fashion," Russo added. "The only reasonable measure to assess 'drugged driving' is a field sobriety test, much as is commonly done for alcohol ingestion. A person who fails such a test based on evidence of impaired or reckless driving certainly deserves to be arrested and investigated for the sake of public safety."

But if popular culture is any indication, you don't have to be a scientist to know these things. Countless comedians have joked about stoned drivers never getting out of the garage or blazing down the road as 4 MPH. Bill Hicks advocated mandatory marijuana for road raging drivers. The bit ends with the sound of a toke taken, followed by, "Whoa, sorry, man, I guess I was taking life too seriously." Some unknown wit also compared pot and alcohol. "The drunk driver blows right through the stop sign, the stoned driver waits for it to turn green," he joked, pithily condensing volumes of scientific research. Or in the words of political humorist PJ O'Rourke, "How can you say anything bad about a drug that makes teenage boys driver slower?"

But the federal government has notoriously displayed little interest in a rational basis for its drug policy, even if it has displayed a certain skill at manipulating the media and the public. It was no surprise that after RWJF's press conference timed to hit the weekend newspapers, drug czar John Walters and a coterie of other federal officials initiated phase two of the offensive on Tuesday.

At a Washington, DC, press conference Walters inaugurated the federal government's portion of the campaign against drugged driving. "While the consequences of drunk driving have become well known over the past 20 years, drugged driving has received relatively limited attention," he said. "We have solid data regarding the prevalence and seriousness of impaired driving. America already loses too many lives to drivers who are under the influence of alcohol, we cannot allow a lack of public awareness to contribute to the deaths of more innocent motorists," he said.

"Between 10 and 22 percent of drivers involved in motor vehicle crashes are under the influence of illegal drugs," added Walters. "It's not taken seriously enough." [Actually, between 10% and 22% of drivers involved in crashes in one federal survey had illicit drug metabolites in their systems. The data did not show how many were actually impaired by the drugs, nor did it indicate whether those drivers were at fault, but who is the drug czar to bother himself with nuance or accuracy?]

Walters told the press conference his office would work to increase public awareness of the problem with two new television ads that will begin airing in January. Joined by officials from the National Highway Traffic Safety Administration (NHTSA) and the American Automobile Association, Walters also announced that the three bodies would seek "increased resources" for drugged driving enforcement, as well as its own "zero-tolerance" model legislation for the states. And he added that drug testing technology similar to a Breathalyzer was under development and would soon be available.

NHTSA, for its part, announced that it will undertake "a major enforcement initiative" in December, which has been declared National Drugged and Drunk Driving Prevention Month. The month of heightened sobriety checkpoints and saturation patrols, will mark the start of a yearlong effort by NHTSA to increase public awareness of the risks of drugged and drunk driving.

Drug reformers find themselves in a difficult position. While taking great pains to make clear that they do not support driving while impaired, they must find a way to confront an appeal to "public safety" that will disproportionately impact their marijuana smoking constituencies. "The fear of drugs and driving makes this a volatile issue and many people are concerned, said Kevin Zeese, head of Common Sense for Drug Policy (http://www.csdp.org). "It is important to emphasize that using drugs and driving is not a good idea and that we need legitimate standards to measure impairment," he told DRCNet. "But it doesn't look like the people in power now are interested in legitimate standards. This looks like another tool to go after marijuana users."

The first thing Marijuana Policy Project (http://www.mpp.org) communications director Bruce Mirken did when contacted by DRCNet was to cite the group's mission statement. Its goal number one reads: "An individual's marijuana consumption must not harm or threaten the health and safety of others. For example, operating motor vehicles while impaired," Mirken emphasized.

MPP has reason to be careful, said Mirken. "We were beaten up badly with this issue in Nevada," he said, "so we are very concerned about what the drug czar is doing. We worry that if they really intend to use a "mere presence" standard, they will be laying the foundation for something that does more harm than good. We have to have laws that measure impairment, not ones that are just an underhanded way of imposing zero-tolerance on marijuana consumers."

Mirken worried that, if successful, the push for "zero-tolerance" drugged driving laws would criminalize the behavior of millions of Americans. "That will turn people's lives upside down for no reason and waste huge amounts of law enforcement and prosecutorial resources," he said. "Those sanctions should be preserved for real crimes. I want the guy who is really stoned and driving dangerously to go to jail."

The movement has a problem, said Keith Stroup, executive director of the National Organization for the Reform of Marijuana Laws (http://www.norml.org). "We saw the drug czar use the driving while stoned issue to great effect in Nevada, and we haven't yet provided the public with a satisfactory response," he told DRCNet. "I think the drug czar views this as a wedge issue. This offensive suggests they believe if they can exaggerate the dangers of driving and marijuana, they can use that to defeat any new initiatives or legislative reform efforts." NORML is working on white papers on drugged driving and another of the drug czar's hot-button issues, marijuana potency, said Stroup. "Research to date indicates that marijuana smokers do not present any particular road hazard, but we recommend that people not smoke marijuana and drive," he said. "It's only common sense."

Still, he said, the drugged driving campaign is an attack on marijuana consumers. "They are not going to identify people stoned and driving, they will identify anyone who smoked marijuana in the last several days," he said. "Regular smokers could test positive for up to six weeks. With people who do more dangerous drugs, it won't be effective -- they go through the system in just a few hours. This is just part of the drug czar's anti-marijuana campaign."

Drug czar spokeswoman Jennifer de Vallance disagreed. "It's about public safety," she told DRCNet. "If illegal drugs are in someone's system, they would be classified as driving while impaired." When queried about the scientific literature showing little danger from drivers under the influence of marijuana and the fact that marijuana remains in the system long after its psychomotor effects have diminished, she replied: "It's about public safety."

"If it's really about public safety, we need standards that measure impairment," countered Zeese. "From their perspective, any marijuana use is or even metabolites in your blood is intoxication. We know that's not true."

Y'all drive safe now, y'hear?

Visit http://saprp.org/druggeddriving.html to read the documents from the Robert Woods Johnson Foundation research presentation. Visit http://www.whitehousedrugpolicy.gov/news/press02/111902.html to read the drug czar's press release announcing the new offensive. Visit http://www.norml.org/index.cfm?Group_ID=5448 for recent scientific studies on marijuana and driving. Visit http://www.parl.gc.ca/illegal-drugs.asp for the most recent overview of the scientific literature, by the Canadian Senate Select Committee on Illegal Drugs.

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Issue #264, 11/22/02 DRCNet Needs Your Help! | Editorial: It's Not About Public Safety | Drug Czar, Prohibition Establishment Seek "Zero Tolerance" for "Drugged Driving" -- Sober Marijuana Users in the Crosshairs | DC Treatment Initiative Clears Legal, Bureaucratic Hurdles, More Funding and Implementation Battles Loom | Medical Marijuana in New York: As the Marijuana Reform Party Licks Its Wounds, MPP Funds New Legislative Effort | Newsbrief: This Week's Cop Corruption Story | Newsbrief: HEA Resolution on the Move on Campuses | Newsbrief: With Milwaukee Drug War Running on Overdrive, Drug Court Judge Begins to Wonder | Newsbrief: Oklahoma Prisons Gobble Up More Cash | Newsbrief: Ambitious US Attorney in Boston Orders Increased Drug Penalties | Newsbrief: Arkansas Drug Czar Resigns After DWI Bust | Newsbrief: Could It Possibly Be TRUE Department -- New African High? | Newsbrief: California Town Won't Report Medical Marijuana Cases to DEA 264/antimarijuanaresearch Newsbrief: NORML Gives Heads Up on Anti-Marijuana Research Results to Be Published Next Week | Green Aid Establishes Legal Defense Fund for Ed Rosenthal | Media Scan: Doonesbury, Forbes in Slate, OC Register, Ed Forchion in DrugWar.com, Youth Today, Nando Times, CCLE Salvia, Heroin Times, Pot TV on John Walters, ONDCP | Action Alerts: Rave Bill, Medical Marijuana, Higher Education Act Drug Provision, Tulia, Salvia Divinorum | The Reformer's Calendar
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