On a dry, overcast day in December 2002, state trooper Leonard Gray was hit by a car as he directed traffic around a jackknifed semitrailer on a hilly, winding two lane road in southeastern Ohio.
Gray, then 51, was thrown into the air, hit his head on the car’s windshield, rolled off the hood and landed unconscious on the pavement–with two broken legs and head injuries, according to Hocking County assistant prosecutor David Sams.
There was no indication that the driver of the car, 61 year old Ronald Hamrick, had even seen Gray, let alone taken any evasive action to avoid hitting him, Sams says. As Sams recounts the incident, Hamrick’s car didn’t come to a stop until 50 to 100 yards down the road, and then he asked a state highway worker who had witnessed the collision, “What’d I hit?”
At the police station, Hamrick refused to consent to a urine test for drugs. So prosecutors got a search warrant to take a blood sample. The results of the test, taken nearly eight hours after the accident, showed that Hamrick had a large amount of cocaine in his system, along with trace amounts of marijuana and an anti seizure medication, Sams says.
Few Have Per Se Standard
If Hamrick had been drinking and had registered a blood alcohol level of .08 percent or more, the legal limit in Ohio, Sams says, the case against him would have been fairly cut and dried: aggravated vehicular assault with alcohol as a contributing factor.
But Ohio, like most states, has no comparable per se standard as to what constitutes an unsafe amount of illegal drugs in a driver’s system. So Sams, who prosecuted the case against Hamrick, had to spend several months and several thousand dollars to prove that Hamrick had so much cocaine in his system at the time of the accident that he shouldn’t have been driving.
Hamrick pleaded guilty to aggravated vehicular assault and was sentenced to four years in prison, Sams says, but he was released after serving about a year.
“It’s a felony in Ohio to possess, much less use, cocaine,” Sams says. “And it’s my feeling that if somebody doesn’t want to get into an accident and have that accident pinned on him, he shouldn’t be committing the felony crime of using an illegal drug in the first place.”
He’s not alone. At least 12 states have what are known as per se drugged driving laws, which in their strictest form (called zero tolerance laws) forbid drivers from operating a motor vehicle if they have any detectable levels of illicit drugs or drug metabolites present in their bodily fluids. At least two states–Ohio and Texas–are considering similar legislation.
The ABA Standing Committee on Substance Abuse researched state drugged driving laws for a project funded by the Robert Wood Johnson Foundation. The 2002 project report urged states to consider adoption of per se laws and recommended that license reinstatement for convicted offenders be tied to participation in a treatment program. Proponents of such laws say drugged driving is a huge problem.
Research shows that in 2002 nearly 11 million people admitted to driving under the influence of illegal drugs. And the National Highway Traffic Safety Administration estimates that illegal drugs (often in combination with alcohol) are used by 10 percent to 22 percent of drivers involved in all traffic accidents.
Yet drug impaired drivers are less frequently detected, prosecuted or referred to treatment than drunk drivers. And most states make it exceedingly difficult to identify, prosecute or convict drugged drivers, critics say.
“The purpose of these [per se] laws is to save lives and get drugged drivers off the road and into treatment,” says Scott Burns, deputy director for state and local affairs in the White House Office of National Drug Control Policy.
Punishing Pot Smokers?
But critics say such laws have little to do with promoting public safety or identifying motorists who drive while impaired, particularly when it comes to marijuana, by far the most commonly used illegal drug. That’s because THC, the main psychoactive ingredient in marijuana, may be detected at low levels in the blood of heavy users for up to two days after use, long after the intoxicating effects of the drug have worn off. And marijuana’s primary metabolite is detectable in urine for days and sometimes weeks after use.
“Under zero tolerance per se laws, a person who smoked a joint on a Monday could conceivably be arrested the following Friday and charged with drugged driving, even though he or she was no longer impaired or intoxicated,” says Paul Armentano, a senior policy analyst for the National Organization for the Reform of Marijuana Laws. Armentano says such laws are based not on science but on convenience.
Since scientists can’t agree on what level of drug or drug metabolite constitutes impairment, he says, politicians often simply choose to set the standard at zero.
Ed Orlett, a former Ohio legislator, is lobbying against that state’s drugged driving bill on behalf of the Drug Policy Alliance, which has offices in four states and Washington, D.C. Orlett says he doesn’t know anybody who favors allowing impaired people to drive. But he says the pending legislation there has nothing to do with impairment, at least as far as marijuana is concerned. “It’s just a way to punish recreational drug users,” he says.
Critics also say police could use such laws to target certain types of drivers, such as young people or those with Grateful Dead bumper stickers on their cars, for suspected drugged driving. And such laws will do nothing to stop people from driving while impaired on prescription drugs or over the counter medications, they point out. Graham Boyd, director of the American Civil Liberties Union’s Santa Cruz, Calif. based Drug Law Reform Project, says such laws effectively turn marijuana smokers into criminals, which violates the well established legal principle that a person’s status as a drug user is not in and of itself a crime.
The U.S. Supreme Court said as much in the 1962 case of Robinson v. California, 370 U.S. 660, when it held that the imprisonment of a person on the sole basis of his status as a drug addict constitutes cruel and unusual punishment. The court reiterated that principle in the 1968 case of Powell v. Texas, 392 U.S. 514, when it held that a chronic alcoholic’s arrest for public intoxication did not violate the Eighth Amendment because he was punished for the act of being drunk in public, rather than for his mere status as an alcoholic.
But that argument doesn’t carry much weight with somebody like Burns, who says it is ludicrous to suggest that anybody who has trace amounts of an illegal drug in his or her system should be allowed behind the wheel.
Last year, Congress considered legislation that would have required every state to adopt a zero tolerance drugged driving law or lose federal highway funding. That bill was passed by the House but stalled in a conference committee.
In September, however, President Bush signed into law a transportation appropriations bill instructing the secretary of transportation to coordinate with other federal agencies on how to address the problem of drugged driving. Under the law, the transportation secretary has 18 months to submit a report on the problem to Congress, including “an assessment of the methodologies and technologies for measuring driving impairment resulting from the use of the most common illicit drugs.”
In the meantime, federal agencies are testing a new generation of devices that will allow police to check a driver’s saliva for drugs at the side of the road within minutes. The appeal of such a device is twofold: It produces rapid results, and the method of collection is less intrusive than taking blood or urine samples.
J. Michael Walsh is head of the Walsh Group, a substance abuse research and consulting firm in Bethesda, Md., that is coordinating the research. He says the devices work well for detecting methamphetamines, amphetamines and opiates–but not so well for marijuana, the use of which can be detected for only about an hour after being smoked.
“The ability of onsite testing to detect marijuana use is poor,” he says.
Walsh says about a dozen such devices are commercially available now, but they still must be approved for medical use by the Food and Drug Administration, a process that could take a year or more.