“Essentially what we surmised is that in the state of Missouri you can smoke marijuana, drive a motor vehicle, fail to yield and kill someone, just don’t have the marijuana on you at the time of the crash.”

Trish Bottfield, whose nephew was killed in a crash involving a driver with marijuana in his system and was not charged.

The Problem

Drugged driving affects each of us at any given time of the day, unlike drunk driving which mostly occurs on the weekends and late at night. In fact, 31% of fatal drunk driving crashes, happen on weekends. The hours between midnight and 3 am can be equally deadly when the highest number of drunk drivers are on the road.

Drugged drivers, on the other hand are a real threat to the safety of road users at all hours especially since the legalization of marijuana in most states.

The National Traffic Highway Safety Administration’s (NHTSA) last 2014 Roadside Survey1 concluded that the number of drivers with alcohol in their system has declined by nearly one-third since 2007, and by more than three-quarters since the first Roadside Survey in 1973. But that same survey found a large increase in the number of drivers using marijuana or other impairing drugs.

Current laws, tools and training cannot cope with this growing problem:

• Drugged drivers frequently escape prosecution which means –
• No conviction which means –
• No punishment or accountability which means –
• No rehabilitation which means –
• No justice for the victim/survivor and
• No protection for society

This problem is not unique to America. Other countries, including New Zealand, Australia, Germany, France have implemented national drugged driving legislation, technologies and training. The latest country to act aggressively against drugged driving is Britain, that implemented drugged driving limits for sixteen drugs on March 2, 2015, after realizing that prosecution of DUID was only 2% of the rate of DUI alcohol, whereas its prevalence was 33% that of DUI alcohol1. A British distinction is that they have the data to show the need for legislation. With rare exceptions, the United States doesn’t.

The United States has studied the problem for decades but has yet to take meaningful action. The National Highways Traffic Safety Administration (NHTSA) and The Government Accountability Office (GAO) report that the prevalence of driving under the influence of alcohol is gradually declining at the same time that the prevalence of drugged driving is increasing. We rapidly and recklessly accept legalization and commercialization of psychoactive drugs with no strategy to develop the legal means to effectively provide for public safety or common sense. Former Colorado Governor Hickenlooper commented on Colorado’s legalization of marijuana, “If I could’ve waved a wand the day after the election, I would’ve reversed the election. This was a bad idea.” The results of these bad and costly decisions from our policy makers fall upon us, the innocent public, who suffer the devastating consequences on our roadways. Those of us who become victims and survivors of drugged driving experience an ongoing victimization, first by the drugged driver, then it continues with an ill-equipped and ineffective legal system unresponsive to our pleas.

Drugged driving is a safety problem regardless of a drug’s legal status. But drug legalization and commercialization does make the problem more common as reported by the early marijuana legalization states of Colorado and Washington. More perversely, drug legalization advocates have consistently downplayed the seriousness of the situation and made it more difficult for states to implement sound drugged driving legislation. For example, during New York’s 2021 marijuana legalization effort, safety advocates were able to turn back a legislative effort to reduce driving while impaired by marijuana from a misdemeanor to a petty offense.

DUID is not simply a problem of marijuana-impaired drivers. In The 2019 National Survey on Drug Use and Health, 12,865 drivers admitted to driving under the influence of marijuana, a significant 8.7% increase over the previous year, and an additional 2,272 drivers admitted to driving under the influence of selected other illicit drugs.

In 2016, 44 percent of drug tested drivers in fatal car crashes were positive for drugs, according to a report entitled “Drug-Impaired Driving: Marijuana and Opioids Raise Critical Issues for States” by the Governors Highway Safety Association. (GHSA) This is up from 28 percent in 2006.

Colorado was the first state to legalize and commercialize marijuana for recreational and tax revenue purposes. New studies are now generating data to understand the horrific consequences of that decision in that state:

1. Percent of drivers who admit driving after marijuana use:
   Over half of our marijuana-using youth drive after using marijuana.
   • 18.6% of past 30-day adult marijuana users in 2019
   • 54.4% of past 30-day high school student marijuana users in 2019
2. Toxicology tests of those arrested for DUI:
   There are more positive blood tests for DUI-marijuana than for DUI-alcohol.
   

   Drug category		Number
   Cannabinoids	Positive screens	4,205
   	THC positive	4,069
   Alcohol		3,956
   Benzodiazepines		1,774
   Amphetamines		1,090
   Cocaine		838
   Opioids/opiates		699
   Sleeping Zs		115

    

3. DUI charges– percent caused by alcohol, THC and polydrug use – 3-year trend:
   DUI-alcohol charges are decreasing while DUI-drug charges are increasing.
   

   	2016	2018	% change
   Alcohol	75.8%	75.3%	– 4.4%
   THC	5.4%	6.4%	+18.5%
   Polydrug	12.7%	14.5%	+14.2%

    

4. Traffic deaths per Billion Vehicle Miles Traveled (BVMT):
   Traffic deaths increased over 1.5/BVMT since marijuana commercialization.
   
   • Increased from 9.91 in the five years before marijuana commercialization to 11.26 in the five years after marijuana commercialization.
   • Increase of 1.46 deaths/BVMT per year adjusted after marijuana commercialization, compared with a synthetic control.
   • Increase of 1.9 deaths/BVMT per year adjusted after marijuana commercialization, compared with states with stable legalization policies.
   • Increase of 1.7 deaths/BVMT per year non-adjusted after marijuana commercialization compared with states without legal recreational or medical marijuana.
     Note: the above reports measured the effect of marijuana commercialization in 2014, not marijuana legalization in 2012.
5. Traffic fatalities implicating THC:
   Deaths implicating THC are increasing.
   

   	Traffic fatalities	THC-positive	THC5 ng/ml
   2018	632	83	36
   2019	596	113	73

    

6. Crash involvement by drug group convictions:
   Impaired drivers’ crash risk is at least double that of sober drivers.
   

   Impaired category	Crash rate	Crash risk
   Non-impaired controls	2.87%	1.0
   THC only	7.1%	2.5
   Alcohol only	24.8%	8.6
   Single other drug only	28.7%	10.0
   Alcohol + THC	28.5%	9.9
   Other polydrug	30.7%	10.7

   Note: Impaired drivers were all convicted of DUI in 2018, categorized by drug assay. Controls were all non-impaired Colorado drivers in 2018.
   
   

7. Vehicular homicide convictions by drug group in 2016:
   Drugged driving causes vehicular homicide and convictions.
   

   Drugs detected	Number
   Alcohol only	10
   THC only	2
   Single other drug only	1
   Alcohol + THC	2
   Alcohol + other drug	1
   Alcohol + THC + other drug	2

    

The White House’s Office of National Drug Control Policy identified drugged driving as a policy priority and established a goal in the agency’s 2011 National Drug Control Strategy to reduce drugged driving 10 percent by 2015. That goal was not met. Concrete actions are needed to stop the cultural acceptance of Driving Under the Influence of Drugs (DUID). Concrete actions like national alcohol per se laws, administrative license revocation and incentives for ignition interlock devices address the DUI-alcohol epidemic. No similar actions or incentives have been implemented with DUID.

We Need Action to Save Lives!

The 23 U.S Code 405 National priority safety programs addresses impaired driving, but all listed programs are specific to alcohol impairment. This can be remedied by revising 23 U.S Code §405 to provide incentives to States who implement the following technologies, practices and laws specifically directed at the measurement and deterrence of drugged driving. There are specific grants to States to reduce alcohol impairment (such as grants to adopt and enforce mandatory alcohol-ignition interlocks) but none for drugged driving impairment.

Multiple highway safety organizations including AAA (American Automobile Association), Resposibility.org, National Safety Council, and GHSA (Governors Highway Safety Association) have all added drugged driving to their agenda. The Senate’s Drug Caucus recommended cannabis policy initiatives and California’s Highway Patrol published recommended best practices to deal with drugged driving. The Department of Transportation needs to do the same. But we need more than agenda items; we need the Federal Government to financially incentivize states to adopt practices that will reduce DUID.

Congress should support the following initiatives to reduce DUID:

1. Each state should maintain a comprehensive drugged driving data base 

   Each state should be tasked with the responsibility of ensuring that all data related to DUID is collected, analyzed, and published so we can better understand the prevalence, causes and consequences of drugged driving. This information comes from the law enforcement agencies, toxicology laboratories and the courts. They should also report the number of DUID citations and causes, and convictions compared to DUI-alcohol. (Also recommended by NHTSA and GHSA.)
   
   

2. Adopt best practices to ensure each state’s DUID conviction rate is no lower that 90% of the DUI-alcohol conviction rate. 

   Adoption of recommendation #1 will inform the state of the conviction rates for all forms of DUI. If the conviction rate for DUID drops below 90% of the conviction rate for DUI due to alcohol, the state should compare its practices with those of other states having higher DUID conviction rates and adopt those practices that can increase conviction rates. Practices studied should include training, staffing, law enforcement, prosecution, technology, and laws.
   
   

3. Implement oral fluid testing (both roadside preliminary devices and evidentiary assays):
   • Roadside non-quantitative oral fluid testing devices can be used by officers prior to arrest if the officer has reasonable grounds to believe that the driver may be impaired by drugs.
     • Roadside non-quantitative oral fluid testing devices shall guide officers in evidence collection.
     • The roadside non-quantitative oral fluid test results may not be considered evidentiary.
     • Available devices test for drugs including opiates, cocaine, amphetamines and cannabis.
   • Evidentiary laboratory oral fluid testing has been scientifically validated for use in lieu of blood evidentiary testing to prove presence of an impairing substance. Roadside preliminary oral fluid testing is now being used routinely in three states.
4. Provide more Drug Recognition Experts (DREs) and Advanced Roadside Impaired Driving Enforcement (ARIDE)trained officers:
   Provide additional training for and use of (DREs) and ARIDE trained officers. According to the International Association of Chiefs of Police, there were only 9,878 DREs in the United States through December 31, 2019. For example Virginia is now seeking legislative support to legalize marijuana yet they only have 25 trained DREs, the lowest number in the country.“Why the need? Quite simply the cultural changes of liberalized drug policy and reduced perception of harm from drugs parallel an increase in drug use, an increase in drugged driving, and an increased difficulty convicting drugged drivers in front of jurors subject to the same social climate. There isn’t a lot we can do about the first of those, but improving detection and deterrence followed up with more effective and convincing testimony are squarely in the realm of priorities that can be aided by DRE’s.” Matt Myers, DRE and Assistant Chief of Police, Peachtree City Police Department
   
   
5. Implement mandatory drug testing in the following cases:
   • Preliminary breath alcohol tests and preliminary oral fluid drug tests for all drivers who are arrested for driving recklessly or impaired.

     Even though officers are authorized to collect and test specimens for drugs on all DUI/DUID arrestees (with probable cause and a warrant for a blood test), they do not routinely perform drug testing especially when the BAC is .08 or higher. Colorado began testing all blood samples from drivers arrested for DUI for both alcohol and a full drug panel in July 2019.
     
     

   • Evidentiary alcohol and drug tests of all (surviving and deceased) drivers involved in crashes that result in death or serious injuries. Ongoing lack of testing ensures that DUID remains under-reported.

     The Governors Highway Safety Association reported that in 2015 55.4% of deceased drivers in fatal collisions were tested for drugs and 19.0% of surviving drivers were tested for drugs. Test protocols and reporting are so poorly standardized that the National Highway Traffic Safety Administration issued a caution that researchers not use its data to infer drugged driving trends.
     

6. Implement eWarrants for blood draws:
   Reduce delays in collecting blood samples through the use of electronic warrants. Traditional warrants can add 1 hour to the normal two hours required to collect a blood sample in cases of death or serious bodily injury. An average of 73% of marijuana’s THC is cleared from the blood within 25 minutes after beginning to smoke, making blood THC levels irrelevant after such a delay.
   
   
7. Enhance penalties for polydrug impairment:
   Enhance penalties for driving under the influence of combinations of drugs including alcohol. Combinations of drugs can be more impairing than individual drugs. Enhanced penalties can incentivize and financially support additional drug testing.
   
   
8. Adopt responsible DUID legislative options:
   
   1. Zero tolerance for impairing drugs for drivers under the age of 21.
   2. Tandem DUI per se where a driver is guilty of Tandem DUI per se if the following sequence of events occurs:
      • An officer had probable cause, based on the driver’s demeanor, behavior and observable impairment to believe that the driver was impaired; and
      • Proof that the driver had any amount of an impairing substance in blood, oral fluid or breath other than alcohol.
   3. Permissible inference that a driver is guilty of DUI if the driver had any amount of an impairing substance in blood, oral fluid or breath other than alcohol.

      Sixteen states have zero drug tolerance for drivers, following the Department of Transportation’s zero drug tolerance policy for commercial drivers and other select employees. These zero tolerance laws vary widely from state-to-state, but all are suitable substitutes for Tandem DUI per se. Per se drug concentration limits for drugs other than alcohol are not advised. The impossibility of determining scientifically valid per se levels for all drugs becomes readily apparent when one considers the multiple thousand combinations of drugs that must also be considered.

      A 5 ng/ml THC per se law or a non-zero permissible inference level is NOT a responsible DUID option; most THC-impaired drivers test below 5 ng/ml THC in whole blood.
      

9. Implement 24/7 sobriety programs for chronic alcohol and drug offenders:
   24/7 sobriety programs are being used in 8 states. The RAND Corporation evaluated North Dakota’s program, finding a 13.7 percentage point lower rearrest or probation revocation compared with subjects not in a 27/7 program. Washington and North Dakota have successfully included drugged drivers in their 24/7 programs.
   
   
10. Impose Administrative License Revocation for drugged driving:
    Drivers’ licenses should be revoked administratively for all drivers who either fail preliminary alcohol or drug tests or who refuse to provide biological samples for alcohol or drug testing.
    
    • At a minimum, the administrative penalty (license suspension) for a refusal to provide a specimen for drug testing should be at least as severe as for a first DUID offense. (IACP)
11. Comprehensive drugged driving plans must be made mandatory by states prior to legalizing psychoactive drugs like marijuana.
    Comprehensive drugged driving plans should include creation of a drugged driving database for at least five years prior to legalizing psychoactive drugs to enable measuring the impact of drug legalization on traffic crashes and deaths.
    
    
12. Implied consent laws should cover both alcohol and drugs
    Implied consent laws should: (a) extend to drugs and support the collection of blood and/or oral fluid for drug testing; (b) include the collection of a specimen or specimens for multiple tests; and (c) should not permit suspects to choose the type of test(s). (IACP)
    

The combination of all the above practices will act as a deterrent to drugged-driving and will demonstrate that DUID will not be tolerated. Most importantly, they will provide the means to collect reliable and critical data that will enable States to measure the impact of their initiatives and develop effective long-term strategies to deal with this growing threat on our highways.

Conclusion

The drug-impaired driving problem is out of control in part due to a common belief that drug-impaired driving is not a problem. Opinions are shaped by self-serving publicity from the marijuana industry and from the media. A defectively designed study by NHTSA1 has been misrepresented to support claims that psychoactive drugs like marijuana THC cause no impairment. Even the CDC published misleading information regarding the safety of THC-impaired driving2. The CDC has since changed its analysis3 but not before Colorado’s Department of Motor Vehicles included a misquote of the incorrect CDC analysis in the state’s 2020 Driver Handbook4.

These common erroneous beliefs were documents by the 2017 GHSA report:

In surveys and focus groups with regular marijuana users in Colorado and Washington, almost all believed that marijuana doesn’t impair their driving, and some believed that marijuana improves their driving (CDOT, 2014; PIRE, 2014; Hartman and Huestis, 2013). Most regular marijuana users surveyed in Colorado and Washington drove “high” on a regular basis. They believed it is safer to drive after using marijuana than after drinking alcohol. They believed that they have developed a tolerance for marijuana effects and can compensate for any effects, for instance by driving more slowly or by allowing greater headways. However, Ramaekers et al. (2016) found that marijuana effects on cognitive performance were similar for both frequent and infrequent marijuana users.

We now have the facts proving that drug-impaired driving is a very real threat to highway safety. Handwringing and passing toothless resolutions won’t solve this problem. Congress must take a lead by changing the narrative that accommodates drug-impaired driving and by requiring states to implement meaningful reform.