By Candace Lightner and Nick Wing
Drugged driving is a significant road safety hazard and lawmakers in the UK have found one very effective legislative solution. On March 2nd 2015, the UK initiated its new drugged driving law and police departments throughout England and Wales began utilizing new roadside oral fluid drug testing equipment under a hybrid per se standard (1, 2). This hybrid enforcement approach establishes per se limits for pharmaceutical drugs and “zero-tolerance” per se limits for illicit drugs, and includes the safeguard of a statutory medical defense for drivers who are taking their medications in accordance with their physician’s instructions (2). The UK’s new comprehensive legal approach and the roadside drug testing equipment have achieved outstanding benefits & outcomes for road safety.
The results were immediate and hundreds of drugged drivers were being efficiently identified and prosecuted throughout England and Wales, and the BBC reported that in Cheshire, the number of drugged drivers charged had increased by over 600% by November of 2015 (3). The final report released by the Cheshire Police, which included the results from December, revealed that there was an 800% increase in drugged-driving arrests with a 98% conviction percentage (4). While nationally, there was a fourfold increase in the number of drugged-drivers charged in 2015 (2). Via “good targeting by the police,” approximately 45% of all suspected drugged-drivers screened at the roadside with the new oral fluid test kits were positive for drugs, and 95% of these drivers subsequently entered a guilty plea (2). The clarity of the law and introduction of supportive enforcement technologies have made a significant difference. According to Martin Ellis, Lead Policy Advisor UK Dept. for Transport, the UK has adopted a hybrid per se and zero-tolerance per se drugged-driving enforcement approach with a statutory medical defense, thus harmonizing with the national drug control strategy and satisfying the requests of multiple stakeholders (2).
The British per se model is a hybrid of the standard per se and zero-tolerance per se approaches to drugged-driving enforcement. Thus, a driver who is found to be “over the specified limit” for one of eight illicit drugs including Benzoylecgonine, Cocaine, Cannabis, Ketamine, Lysergic Acid Diethylamide, Methylamphetamine, MDMA and 6-Monoacetylmorphine (a unique marker for Heroin) would fall under the “zero-tolerance” per se limit, which is set above the threshold to rule out accidental exposure (2, 5). Whereas, a driver who tests positive for one of nine pharmaceutical drugs including Amphetamine, Clonazepam, Diazepam, Flunitrazepam, Lorazepam, Methadone, Morphine, Oxazepam or Temazepam will be subject to the standard per se limits, which are set within normal prescribed dosages rather than the lower “zero-tolerance” per se limits for illicit drugs (2, 5). If a driver has a lawful prescription for any of the aforementioned pharmaceutical drugs, then they could possibly invoke the statutory medical defense, which effectively assured the pharmaceutical industry that patients would not be deterred from taking their medications as directed by their physician, although in practice this has not yet been necessary (2). Mr. Ellis underscored the importance of legislative pragmatism to satisfy the needs of a variety of stakeholders, while never losing sight of the principle goal of road safety (2, 5). This vetting and negotiating process has resulted in what may prove to be the most encompassing drugged driving legislative model yet to be adopted.
The clarity of the new law’s per se approach has been of critical importance to its success. UK Secretary of Transport Patrick McLoughlin stated that prior to the introduction of the new law, it was unnecessarily difficult to prosecute drugged drivers and that a driver suspected of driving under the influence of drugs was 50 times less likely to be convicted than a driver under the influence of alcohol (6). The introduction of the hybrid per se standards is effectively resolving this issue and the conviction rate of drugged drivers increased substantially from 52% in 2012 to more than 95% in 2015 (2). The 2015 drugged-driving conviction percentage is now proportional to the drunk driving offense conviction percentage which is around 96% (7). This increase could not have been achieved without the new per se drugged-driving standards supported by a positive roadside drug test result. The global expansion of the use of evidential roadside drug testing under per se standards has been central to Candace Lightner’s advocacy, and the We Save Lives legislative position was further supported by the recent Kern County, California drug-DUI test case which admitted as evidence the results of a roadside oral fluid drug testing system that is also currently approved for use nationwide in the U.K. (3, 8, 9). Ms. Lightner and We Save Lives have been advocating for the adoption of these evidential roadside drug testing systems and updated per se DUID laws, similar to the standard breathalyzer approach, for years and the extraordinary results of the UK program have certainly been vindicating (8). The challenge in this country is convincing our numerous different state legislatures first, that drugged driving is a problem. Due to the lack of drug testing when there is an arrest we lack the data to show how serious the problem is and until recently have relied mainly on volunteer roadside surveys to gauge the extent of drugged driving in this country. Second, most states still see urine and blood as the only viable testing methods, and are reluctant to try anything new despite the success in Britain and elsewhere. Oral fluid testing has several benefits: it gets the drivers off the road sooner, saving lives, plus it enables them to get into treatment and gives us the data to make more informed DUID policy decisions.
The first year of the UK’s drugged driving law has been an extraordinary success, and further emphasizes its potential to become a legislative model for consideration by lawmakers around the globe. The introduction of similar hybrid per se legislation will mean fewer drugged drivers on the roads & highways and therefore should logically result in fewer drugged driving collisions and more lives saved. This new drug driving law could have road safety benefits far beyond the borders of the UK, and save innumerable lives each year via more effective prosecution and prevention of drugged driving.
Candace Lightner is the founder of MADD and president of We Save Lives.
Nicholas Wing is a composer, co-inventor and researcher based in Nashville, TN. He graduated with honors from Ohio University with a specialization in the Global Leadership Center (GLC), and later earned a professional certificate in non-profit management from Case Western Reserve University. Wing began his professional career in opposition research for the Terry Anderson for Ohio Senate Campaign, and this entailed researching the opposition candidate’s voting record and a variety of public policy issues affecting the local communities in the voting District. Wing’s interest in the public policy issue of drugged-driving was in response to having dangerous criminal drug organizations move in proximity to multiple members of his family which created a variety of potentially life-threatening road & community safety issues.