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a. Per Se Standard

b. Penalties

c. Constitutionality

Visit to track current drugged driving legislation across the United States.

2014 State-by-State Analysis of Laws Dealing with Driving Under the Influence of Drugs [PDF]

a. Per Se Standard
All 50 states and the District of Columbia have laws that specifically target drugged drivers. Almost one-third of states have adopted the per se standard which has been identified by the Obama administration's 2010 National Drug Control Strategy as one of its major initiatives. IBH considers the per se standard to be the single most effective policy tool for dealing with drugged drivers. Per se means that any detectable amount of a controlled substance, other than a medicine prescribed by a physician for that driver in a driver's body fluids, constitutes per se evidence of a "drugged driving" violation. This per se standard has been federal law for commercial drivers in the U.S. since 1988. It is also the standard widely used in the developed world outside the U.S., including Western European nations, Canada, Australia and New Zealand. The benefit of a per se standard is that prosecutors do not have to meet more complex and difficult to use standards of guilt. In addition, with the per se standard drivers know that they must abstain from use of illegal drugs before getting behind the wheel of a car or face the risk of a Driving While Intoxicated (DWI) conviction.

Some per se drugged driving laws are better than others. For example, some states exclude specific commonly abused illegal drugs. Some limit the specimens that can be collected (urine, oral fluid, blood) or specify specific cut-off levels. IBH is working to create a model per se drugged driving law for states to implement to achieve the greatest reductions in rates of drugged driving and to improve drugged driving enforcement.

There is no 0.08 g/mL Blood Alcohol Concentration (BAC) equivalent for drugs and detecting drugged drivers because drug levels do not consistently correlate with specific levels of impairment. A drug concentration that produces no observable impairment in one individual may be profoundly impairing to another. There are currently no laboratory tests that identify tolerance, one of several factors that determine impairment after drug use. This same variability exists with alcohol levels, a fact that is reflected in varying BACs that are considered to be unsafe. In Sweden drivers must be under 0.02 BAC while many other Western European countries use a 0.05 BAC standard is used. The U.S. permits a higher level of alcohol, 0.08 BAC.

It is too often assumed that the problem of finding specific levels of drugs other than alcohol that cause impairment is a simple matter requiring additional study. While further study of alcohol and other drugs in driving contexts is desirable, it is imperative that action be taken now, based on more than four decades of research on drugs and driving. There is abundant precedent for using the per se standard for illegal drug use. There is no acceptable level of BAC for an underage drinker in the U.S. because any alcohol consumption under the age of 21 is illegal. For the same reason, the per se standard has been used for illegal drugs among commercial drivers for more than two decades with great success and little controversy. This standard is used in federally-mandated workplace drug testing for safety-sensitive jobs. There is no more safety sensitive common human activity than driving a motor vehicle. For all of these reasons, IBH strongly supports the White House recommendation of using the per se standard for drugged driving.

Conviction of drugged drivers is not the only positive outcome of establishing a per se statutes. Enforcing these effective drugged driving laws will create a major new path to substance abuse treatment just the way drunk driving law enforcement has established a path to treatment for people with alcohol-related problems.

Read The Need for Drugged Driving Per Se Drug Laws: A Commentary.

IBH Commentary: Marijuana Use is a Serious Highway Safety Threat: 5 ng/ml Marijuana Impairment Limits Give Drivers a Free Pass to Drive Stoned

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b. Penalties

Penalties for drugged driving should be comparable to those instituted for drunk driving offenses. Penalties for drivers found to be above the legal limit for alcohol and positive for drugs of abuse should be subject to additional penalties compared to drivers found guilty of driving with either alcohol or drugs alone. Penalties should include loss of driving privileges, fines and possible imprisonment, all of which are more severe for multiple DWI offenses.

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c. Constitutionality

The Supreme Court has deliberated on matters relating directly to the issue of drug and alcohol testing in the past and has consistently ruled in favor of such things as roadside blood alcohol concentration (BAC) testing, sobriety checkpoint roadblocks and random student drug testing.

Examples of cases that have upheld the legality of the following protective safety measures:

Legal Resources
Safe, Accountable, Flexible, Efficient Transportation Equity Act of 2005 (SAFE - TEA)

One of the provisions of the 2005 legislation called for the development of a national drugged driving policy, increased funds for drugged driving research, and authorization for the Department of Transportation (DOT) to issue a model state statute on drugged driving to encourage states to adopt per se laws. Unfortunately DOT requested a continuation by Congress each ensuing year and nothing resulted. Now SAFE - TEA is up for re - authorization in 2009. This language must be preserved in the 2009 legislation, and preferably, modified. Read the suggested language for the reauthorization here.

Comprehensive information on SAFE - TEA can be found at the Department of Transportation's Federal Highway Administration:

The Feasibility of Per Se Drugged Driving Legislation

Funded by the Robert Wood Johnson Foundation's Substance Abuse Policy Research Program, the Walsh Group P.A. and the American Bar Association's Standing Committee on Substance Abuse gathered experts including police, judges, prosecutors, and health and safety constituent groups to review state laws regarding drugged driving and to explore how these laws might be made more effective.

Key findings of the expert consensus group include:

  • Drugged drivers are less frequently detected, prosecuted, or referred to treatment compared with drunk drivers.
  • There is a lack of uniformity or consistency in the way the 50 U.S. states approach drugged drivers.
  • Current law in most U.S. states make it difficult to identify, prosecute, or convict drugged drivers.
  • Too few police officers have been trained to detect drugged drivers.
  • Per se laws are feasible and represent a good strategy for dealing with drugged drivers.
  • Per se laws can assist in the prosecution of drugged driving.

AAA Foundation for Traffic Safety

An Evaluation of Data from Drivers Arrested for Driving Under the Influence in Relation to Per Se Limits for Cannabis

Drug Toxicology for Prosecutors

The American Prosecutors Research Institute developed this report specifically for prosecutors to better understand drug toxicology in the context of prosecution of drugged driving cases.

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