Memo to New York Legislators

RE: Road Safety and Marijuana Legalization

We support Executive Assistant District Attorney, Maureen McCormick’s concerns regarding the human toll that marijuana legalization causes to innocent users of our roadways.

Following are our recommendations on her “Top Line Asks”.

1. DWI by cannabis/marijuana must remain a misdemeanor. We agree, unless this is a repeat offense, in which case it should be a felony, consistent with current NY law where the misdemeanor escalates to a felony if it is the second conviction within 10 years.

   The marijuana lobby has consistently downplayed the risks of the average stoned driver, comparing it to the average drunk driver. The problem with that rationale is that not all drivers are average. Most are not. Impairment, regardless of the cause, is a dose-related phenomenon. The more alcohol, THC or other drug that is consumed, the more impaired the individual becomes. Data on this are incontrovertible. It is also a fact that someone on a high dose of THC can be more impaired than someone on a low dose of alcohol. Data can be presented to confirm this fact.

   Therefore, the rationale to lower the category of crime from a misdemeanor to a traffic infraction fails. Push back on this hard, we will support you 100%! Let us know if you need data references to support the above argument.

2. Definition of “drug” must be changed to include any substance or combination of substances that impair, to any extent, physical or mental abilities. This is now being done in 45 other states.

   We support this provision for the following reasons: It is impossible for a statute to keep up with the bewildering varieties of impairing drugs that are being consumed by the public. Refer to the Toxicology-Milestones report from the Colorado Bureau of Investigation (CBI)¹ . The CBI tox lab was funded by the legislature to test 100% of blood samples from DUI suspects for both alcohol and a full drug panel. They began doing so July 2019 and the data reported in this reference are for the first full year of that program. You will note that not only do

   DUI-THC samples outnumber the DUI-alcohol samples, but that there were 227 “designer benzodiazepines” discovered. These are drugs that were made to evade normal detection and legal issues, yet still cause the impairment for which benzodiazepines are known. They are not found in the USP. They will not be found on any state’s list of impairing drugs. Yet they impair.

   • There is a movement afoot now to produce drugs based on Δ8-THC or Δ10-THC, specifically to get around statues prohibiting Δ9-THC in drivers. Little has been published about the effects of these drugs, but anecdotal reports tell us that a user can get just as high from at least Δ8-THC as Δ9-THC.

   It would be a mistake to rely upon a list of impairing drugs, whether or not cannabis-derived drugs are included. This is one reason why we support your position to change the definition of impairing drugs.

3. Search warrants for blood draw must be allowed.

   Correct, but there are some issues associated with this. An article published by Ed Wood & others in Traffic Injury Prevention ² showed that the average time between an event (arrest or crash) and a blood draw was about an hour for a typical DUI arrest, two hours in case of a crash involving death or injury, and three hours if a warrant was required. Since the average [THC_MAX] has been shown to drop 79% within the first 25 minutes of beginning to smoke a joint, a blood sample obtained via a warrant while good may not be a true representative of the correct concentration at the time of the event.

   Roadside oral fluid testing must be added to VTL.

   We Save Lives took the lead on supporting and promoting oral fluid testing in this country. But roadside oral fluid testing must be coordinated with evidentiary oral fluid testing. Dr. Curt Harper from Alabama has done an excellent job describing how this has been successfully done on a state-wide basis³.

4. Chemical tests and funding.

   We support all of these provisions which are excellent.

5. Open container statute.

   We support this provision.

   Colorado’s C.R.S. 42-4-1305.5 is a model you might refer to in developing your law.

You should also be aware of the following little-known truths about the state of drug-impaired driving in the State of Colorado:

1. Percent of drivers who admit to 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 2019⁴ drove after using marijuana.
   • 54.4% of past 30-day high school student marijuana users in 2019⁵ drove after using marijuana.

   Analysis: Recent THC* use impairs driving skills, but acute THC impairment subsides within a few hours after inhaled use of the drug. The data above are fairly soft since they are based on surveys. Nevertheless, the high percentage of current high school marijuana users who admit to driving after use of the drug is quite alarming. If that cohort continues their practice into adulthood, we can expect a continual increase in drugged driving and attendant traffic fatalities.

2. Toxicology tests of those arrested for DUI:⁶

   CBI reported more positive 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
   Methamphetamine and similar		1,090
   Cocaine		838
   Opioids/opiates		699
   Sleeping Zs		115

   Note: Colorado Bureau of Investigation (CBI) data from July 2019 to June 2020

   Analysis: Validity of past similar reports has suffered from the fact that after finding that a driver exceeded the alcohol per se limit of BAC .08 gm/dL, it is uncommon for police to proceed with gathering drug use. Therefore, the prevalence of drugged driving was dramatically under-reported. In contrast, CBI tested all blood samples for both alcohol and drug testing beginning in July, 2019. CBI reported 12,771 positive drug results from the 9,763 samples submitted, suggesting a maximum of 23.6% polydrug use. The above data do not include Colorado’s forensic toxicology tests performed by Chematox Labs for the month of June 2019 or DUI evidentiary breath tests.

   These data show that 96.8% of positive cannabinoid screens resulted in positive THC test results. Benzodiazepines have long been a common impairing drug found in Colorado’s DUI forensic toxicology assays. Although benzodiazepines are prescribed as Valium® and Xanax® for example, they are commonly used “recreationally”. 12.8% of the benzodiazepines were “designer benzos,” cooked up for illicit use, not for conventional medications.

   * THC refers only to Δ9-tetrahydrocannabinol, the psychoactive agent in marijuana, not to its inactive metabolite.

3. 3. DUI charges– percent caused by alcohol, THC and polydrug use – 3-year trend:⁷

   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%

   Analysis: DUI is not only about alcohol and DUID is not only about THC, the prevalence of which is increasing rapidly while the prevalence of alcohol impairment is declining. These data include both blood testing as well as evidentiary breath testing.

4. Traffic deaths per Billion Vehicle Miles Traveled (BVMT):

   Traffic deaths increased over 1.5/BVMT since marijuana commercialization.

   • • Increased from 9.91 deaths/BVMT in the five years before marijuana commercialization to 11.26/BVMT in the five years after marijuana commercialization ⁸.
     • Increase of 1.46 deaths/BVMT per year adjusted after marijuana commercialization, compared with a synthetic control⁹.
     • Increase of 1.9 deaths/BVMT per year adjusted after marijuana commercialization, compared with states with stable legalization policies¹⁰.
     • Increase of 1.7 deaths/BVMT per year non-adjusted after marijuana commercialization compared with states without legal recreational or medical marijuana¹¹.

   Note: the above reports measured the effect of marijuana commercialization in 2014, not marijuana legalization in 2012.

   Analysis: These four separate analyses have similar results showing the association between marijuana commercialization and increasing traffic fatalities. They all show association but cannot prove causation.

   The first analysis shows Colorado fatalities before and after commercialization. The last three compare Colorado’s death rate with control states during the same time period.

5. Traffic fatalities implicating THC:

   Deaths implicating THC are increasing.

   	Traffic fatalities	THC-positive	THC-positive
   201812	632	83	36
   201913	596	113	73

   Analysis: The above data come from NHTSA’s FARS reports. FARS reports are commonly used for drugged driving epidemiology studies in spite of their acknowledged limitations. Part of the increase in THC-positive cases from 2018 to 2019 was the increased testing done by CBI beginning June 2019. The distinction between THC above and below 5 ng/mL is not very meaningful since a driver can be highly impaired below 5 ng/mL and be only modestly impaired above that level.

6. Crash involvement by drug group convictions:¹⁴

   Impaired drivers’ crash risk is at least double that of sober drivers.

   Impaired category	Crash prevalence	Crash prevalence ratio
   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

   Analysis: This kind of analysis has never been done before. Past epidemiological studies of drugged driving crash risk compared crash rates for drivers testing positive for drugs with drivers testing negative for drugs. A limitation of those studies is that one must infer impairment from drug testing results. The above data do not require that inferring that a drug-positive driver was or was not impaired. All of the Colorado drivers above except the controls were convicted of DUI/DWAI in 2018, categorized by drug assay. Controls were all non-impaired Colorado drivers in 2018, reported to CDOT and CDOR.

7. Vehicular homicide convictions by drug group in 2016:¹⁵

   Drugged driving causes vehicular homicide.

   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

   Analysis: All the above cases were charged with vehicular homicide caused by DUI, categorized by the drugs identified. Colorado’s Division of Criminal Justice discontinued providing this analysis after only one year, so we have no current data. Nevertheless, we can see that drugged driving can be deadly, whether from THC, other drugs, or polydrugs.

Regards,

Ed Wood for DUID Victim Voices edwood27@icloud.com, 303 478 7636

Candace Lightner for We Save Lives clightner@wesavelives.org, 703 296 4708

¹https://us17.campaign-archive.com/?u=8c19b56d089ffb41f61475b71&id=7e46389639

²Wood E, Brooks-Russell A, Drum P. Delays in DUI blood testing: Impact on cannabis DUI assessments. Traffic Injury Prevention 2016 Vol 17 No 2, 105-108

³Harper, Curt. Implementing a Statewide Oral Fluid Testing Program in Alabama, Transportation Research Board, 98th Annual Meeting, 2019

⁴https://marijuanahealthinfo.colorado.gov/health-data/behavioral-risk-factor-surveillance-system-brfss-data

⁵https://marijuanahealthinfo.colorado.gov/health-data/healthy-kids-colorado-survey-hkcs-data11.2% of students divided by 20.6% of past 30-day users

⁶https://us17.campaign-archive.com/?u=8c19b56d089ffb41f61475b71&id=7e46389639

⁷Rosenthal A, Reed J. Driving Under the Influence of Drugs and Alcohol. Colorado Department of Public Safety, Division of Criminal Justice, Office of Research and Statistics, Nov 2020

⁸Federal Highway Administration, https://www.fhwa.dot.gov/resources/pubstats/

⁹Santaella-Tenorio J, Wheeler-Martin K, DiMaggio CJ et al. Association of Recreational Cannabis Laws in Colorado and Washington State With Changes in Traffic Fatalities, 2005-2017. JAMA Intern Med. Published Online June 22 (2020)

¹⁰Aydelotte JD, Mardock AL, Mancheski CA et al. Fatal crashes in the 5 years after recreational marijuana legalization in Colorado and Washington. Accident Analysis and Prevention 132 (2019) 105284

¹¹Kamer RS, Warshafsky S, Kamaer GC. Change in Traffic Fatality Rates in the First 4 States to Legalize Recreational Marijuana. JAMA Intern Med. Published Online June 22 (2020)

¹²Gorman T. The Legalization of Marijuana in Colorado: The Impact. Vol 6 Sept 2019. Rocky Mountain High Intensity Drug Trafficking Area

¹³Clarke C. The Legalization of Marijuana in Colorado: The Impact. Vol 7 Sept 2020. Rocky Mountain High Intensity Drug Trafficking Area

¹⁴Drugged driver data:Rosenthal A, Reed J. Driving Under the Influence of Drugs and Alcohol. Colorado Department of Public Safety, Division of Criminal Justice, Office of Research and Statistics, Nov 2020. Control data: Colorado Department of Transportation https://www.codot.gov/safety/safetydata/colorado-problem-identification-id-reports/2020_statewideperspective_final.pdf. And Colorado Department of Revenue data, personal communication, Christine Demont, Epidemiologist for Colorado Department of Public Health and Environment, Dec 31, 2020

¹⁵Bui B, Reed J. Driving Under the Influence of Alcohol and Drugs. A Report Pursuant to HB 17-1315. July 2018. Colorado Division of Criminal Justice