A bill that would define drivers as impaired if certain set quantities of illicit drugs or their metabolites are detected in their blood or urine sailed through the Ohio Senate last week, but may have been knocked off course this week in the House as opponents mobilized to amend or defeat it. The bill, a pet project of Hope Taft, the wife of Republican Gov. Robert Taft, would make Ohio the second state after Nevada to set precise measures of amounts of illegal drugs that would be considered per se evidence of impaired driving.
Drunk driving laws use a per se measure -- typically a 0.08% blood alcohol level -- and assume that drivers above that level are impaired. But the national push to enact drugged driving laws announced in November 2002 by drug czar John Walters has typically favored "zero tolerance" drugged driving statutes, where any detectable amount of a drug or its metabolites is considered evidence of impaired driving. At least ten states have passed such laws since the campaign began.
Opponents of such measures argue that because zero tolerance drugged driving laws have no scientific basis -- the presence of a drug or metabolite does not necessarily prove impairment -- their real purpose is not to increase highway safety but to find yet another way to punish drug users. Since most drug users are marijuana smokers and since marijuana is notorious for lingering in one's system, opponents view such laws primarily as an attack on marijuana users. While per se standards are less obnoxious than zero tolerance standards, opponents say, those standards must be set at drug levels that are actually scientifically linked to impairment.
The legislation, Senate Bill 8, approved on a 30-1 vote by the Ohio Senate sets the following standards, among others:
"What it will do is give us the same objective measure for drugs that exists for alcohol, so a jury or a judge can have confidence that the person we have arrested has got levels that are high enough that it did not accidentally or involuntarily get into their system," Captain John Born, legislative lobbyist for the Ohio Highway Patrol, told the Senate.
But Paul Armentano, executive director of the National Organization for the Reform of Marijuana Laws and an authority on drug testing, told DRCNet the bill would roll up unimpaired marijuana users in its dragnet. "Because marijuana's main metabolite, THC-COOH, remains detectable in certain bodily fluids, particularly urine, for days and sometimes weeks after past use, this legislation seeks to define sober drivers as if they were intoxicated," he said. "Someone who smokes marijuana is impaired as a driver at most for a few hours, certainly not for days or weeks. To treat all marijuana smokers as if they are impaired, even when the drug's effects have long worn off, is illogical and unfair."
Armentano laid out three broad objections to the bill as written. "We object to including drug metabolites as indicative of impairment when clearly there is no scientific evidence that the presence of metabolites establishes either recent drug use or impairment," he said.
"Also, there is no scientific consensus that an individual who has two nanograms of THC in his blood is either impaired or has an elevated risk of a traffic accident," Armentano said. "The science on this is in its infancy, but there is data out there to suggest that when a person tests above five nanograms, and closer to ten, that there is an elevated risk. Two nanograms is not a standard associated with impairment. If they are going to use a cut-off standard it should be in line with scientific evidence and associated with actual impairment. The standard for alcohol was picked because there is evidence that when a person reaches that threshold, he is a danger on the road. Marijuana should be held to the same standard -- not a different one with no scientific basis," he argued.
The bill's per se standard is also objectionable for another reason, Armentano said. "Rather than setting a per se standard that says all a prosecutor needs is a toxicology report to win a conviction, we would like that changed to a rebuttable presumption, where the driver might be presumed to be impaired, but could still present evidence to show that he was not."
Armentano has been working hand in hand with former Ohio legislator Ed Orlett, the Ohio representative for the Drug Policy Alliance to win changes in the bill. In a House committee hearing this week, Orlett's testimony, along with that of a toxicologist who was called to testify by bill supporters, succeeded in sowing some doubt in legislator's minds about the measure.
"I told the committee our position is that metabolites should not be in the bill because they only detect usage, not impairment," Orlett told DRCNet. "I also testified that the limit should be five nanograms, not two, if they want a reasonable standard supported by the scientific evidence."
With copies of Orlett's written testimony in hand before the hearing, committee conservatives attempted to blunt his remarks by bringing in Dr. James Ferguson, a toxicologist and former county coroner, to testify to the appropriateness of the standards, but to the committee's surprise, and Orlett's pleasure, Ferguson agreed that metabolites should be stricken from the bill and that the blood level for marijuana should be set not at two nanograms but above five nanograms.
"The Highway Patrol about fell out of their chairs when they heard that," Orlett chortled.
Shocking the Highway Patrol is one thing; getting the bill changed is another. But, said Orlett, there are signs that will happen. "Rep. Sites (R-Cincinnati) is one of the most conservative members of the committee, but when I asked him if he would be drafting appropriate amendments to the bill, he said he was already working on it."
To get the bill modified to remove its most egregrious provisions would be a tremendous victory, said Orlett. "This is Hope Taft's pet project, and it has been prioritized by the governor as one of the top seven bills he wants passed this session."
If the House does amend the bill, it will have to go back to the Senate, and if the Senate declines to accept the amended version, the bill would have to go to conference committee, Orlett said. But he pronounced himself well-satisfied at being able to throw a wrench in the works already. "I thought this was a done deal," he confessed. "I know when I hear a train a-coming, but maybe we've derailed this."
Stay tuned -- more hearings are set for next week.