U.S. GOVERNMENT PUBLISHING OFFICE

35–235 WASHINGTON : 2019

EXAMINING DRUG-IMPAIRED DRIVING 

HEARING 

BEFORE THE

SUBCOMMITTEE ON DIGITAL COMMERCE AND 

CONSUMER PROTECTION 

OF THE

COMMITTEE ON ENERGY AND 

COMMERCE 

HOUSE OF REPRESENTATIVES 

ONE HUNDRED FIFTEENTH CONGRESS 

SECOND SESSION 

JULY 11, 2018 

Serial No. 115–149 

( 

Printed for the use of the Committee on Energy and Commerce 

energycommerce.house.gov 

(II) 

COMMITTEE ON ENERGY AND COMMERCE 

GREG WALDEN, Oregon 

Chairman 

JOE BARTON, Texas 

Vice Chairman 

FRED UPTON, Michigan 

JOHN SHIMKUS, Illinois 

MICHAEL C. BURGESS, Texas 

MARSHA BLACKBURN, Tennessee 

STEVE SCALISE, Louisiana 

ROBERT E. LATTA, Ohio 

CATHY MCMORRIS RODGERS, Washington 

GREGG HARPER, Mississippi 

LEONARD LANCE, New Jersey 

BRETT GUTHRIE, Kentucky 

PETE OLSON, Texas 

DAVID B. MCKINLEY, West Virginia 

ADAM KINZINGER, Illinois 

H. MORGAN GRIFFITH, Virginia 

GUS M. BILIRAKIS, Florida 

BILL JOHNSON, Ohio 

BILLY LONG, Missouri 

LARRY BUCSHON, Indiana 

BILL FLORES, Texas 

SUSAN W. BROOKS, Indiana 

MARKWAYNE MULLIN, Oklahoma 

RICHARD HUDSON, North Carolina 

CHRIS COLLINS, New York 

KEVIN CRAMER, North Dakota 

TIM WALBERG, Michigan 

MIMI WALTERS, California 

RYAN A. COSTELLO, Pennsylvania 

EARL L. ‘‘BUDDY’’ CARTER, Georgia 

JEFF DUNCAN, South Carolina 

FRANK PALLONE, JR., New Jersey 

Ranking Member 

BOBBY L. RUSH, Illinois 

ANNA G. ESHOO, California 

ELIOT L. ENGEL, New York 

GENE GREEN, Texas 

DIANA DEGETTE, Colorado 

MICHAEL F. DOYLE, Pennsylvania 

JANICE D. SCHAKOWSKY, Illinois 

G.K. BUTTERFIELD, North Carolina 

DORIS O. MATSUI, California 

KATHY CASTOR, Florida 

JOHN P. SARBANES, Maryland 

JERRY MCNERNEY, California 

PETER WELCH, Vermont 

BEN RAY LUJA ́ N, New Mexico 

PAUL TONKO, New York 

YVETTE D. CLARKE, New York 

DAVID LOEBSACK, Iowa 

KURT SCHRADER, Oregon 

JOSEPH P. KENNEDY, III, Massachusetts 

TONY CA ́ RDENAS, California 

RAUL RUIZ, California 

SCOTT H. PETERS, California 

DEBBIE DINGELL, Michigan 

SUBCOMMITTEE ON DIGITAL COMMERCE AND CONSUMER PROTECTION

ROBERT E. LATTA, Ohio 

Chairman 

GREGG HARPER, Mississippi 

Vice Chairman 

FRED UPTON, Michigan 

MICHAEL C. BURGESS, Texas 

LEONARD LANCE, New Jersey 

BRETT GUTHRIE, Kentucky 

DAVID B. MCKINLEY, West Virgina 

ADAM KINZINGER, Illinois 

GUS M. BILIRAKIS, Florida 

LARRY BUCSHON, Indiana 

MARKWAYNE MULLIN, Oklahoma 

MIMI WALTERS, California 

RYAN A. COSTELLO, Pennsylvania 

JEFF DUNCAN, South Carolina 

GREG WALDEN, Oregon (ex officio) 

JANICE D. SCHAKOWSKY, Illinois 

Ranking Member 

BEN RAY LUJA ́ N, New Mexico 

YVETTE D. CLARKE, New York 

TONY CA ́ RDENAS, California 

DEBBIE DINGELL, Michigan 

DORIS O. MATSUI, California 

PETER WELCH, Vermont 

JOSEPH P. KENNEDY, III, Massachusetts 

GENE GREEN, Texas 

FRANK PALLONE, JR., New Jersey (ex 

officio) 

(III) 

C O N T E N T S 

Page 

Hon. Robert E. Latta, a Representative in Congress from the State of Ohio, 

opening statement ................................................................................................ 1 

Prepared statement .......................................................................................... 3 

Hon. Janice D. Schakowsky, a Representative in Congress from the State 

of Illinois, opening statement .............................................................................. 4 

Hon. Greg Walden, a Representative in Congress from the State of Oregon, 

opening statement ................................................................................................ 5 

Prepared statement .......................................................................................... 6 

Hon. Frank Pallone, Jr., a Representative in Congress from the State of 

New Jersey, prepared statement ........................................................................ 7 

WITNESSES

Robert L. Dupont, M.D., President, Institute for Behavior and Health ............. 9 

Prepared statement .......................................................................................... 12 

Answers to submitted questions ...................................................................... 185 

Jennifer Harmon, Assistant Director, Forensic Chemistry, Orange County 

Crime Lab ............................................................................................................. 22 

Prepared statement .......................................................................................... 24 

Answers to submitted questions ...................................................................... 190 

Colleen Sheehey-Church, National President, Mothers Against Drunk Driving .......................................................................................................................... 29 

Prepared statement .......................................................................................... 32 

Erin Holmes, Director, Traffic Safety Programs, Technical Writer, Foundation 

for Advancing Alcohol Responsibility ................................................................. 43 

Prepared statement .......................................................................................... 45 

Answers to submitted questions ...................................................................... 195 

SUBMITTED MATERIAL

Article entitled, ‘‘Raising awareness about drugged driving,’’ Laker/Lutz 

News, February 7, 2018 ....................................................................................... 71 

Report entitled, ‘‘Marijuana-Impaired Driving: A Report to Congress,’’ National Highway Traffic Safety Administration, 2017 ........................................ 74 

Article from the Heritage Foundation, May 16, 2018 ........................................... 117 

Brochure from Responsibility.org ........................................................................... 128 

Report from the Governor’s Highway Safety Association .................................... 130 

Report from the Institute for Behavioral Health .................................................. 170 

Article entitled, ‘‘Oral Fluid Testing for Impaired Driving Enforcement,’’ The 

Police Chief, January 2017 .................................................................................. 173 

Article entitled, ‘‘License Revocation as a Tool for Combating Drugged Driving,’’ Impaired Driving Update, 2014 ................................................................. 179 

(1) 

EXAMINING DRUG-IMPAIRED DRIVING 

WEDNESDAY, JULY 11, 2018 

HOUSE OF REPRESENTATIVES, SUBCOMMITTEE ON DIGITAL COMMERCE AND CONSUMER

PROTECTION, COMMITTEE ON ENERGY AND COMMERCE, 

Washington, DC. 

The subcommittee met, pursuant to call, at 1:02 p.m., in room 

2123, Rayburn House Office Building, Hon. Robert Latta (chairman 

of the subcommittee) presiding. 

Present: Representatives Latta, Kinzinger, Lance, Guthrie, Bilirakis, Bucshon, Mullin, Walters, Costello, Walden (ex officio), Schakowsky, Dingell, Welch, Kennedy, and Pallone (ex officio). 

Staff Present: Melissa Froelich, Chief Counsel, Digital Commerce 

and Consumer Protection; Ali Fulling, Legislative Clerk, Oversight 

and Investigations/Digital Commerce and Consumer Protection; 

Elena Hernandez, Press Secretary; Paul Jackson, Professional 

Staff, Digital Commerce and Consumer Protection; Bijan 

Koohmaraie, Counsel, Digital Commerce and Consumer Protection; 

Drew McDowell, Executive Assistant; Greg Zerzan, Counsel, Digital Commerce and Consumer Protection; Michelle Ash, Minority 

Chief Counsel, Digital Commerce and Consumer Protection; Jeff 

Carroll, Minority Staff Director; Evan Gilbert, Minority Press Assistant; Lisa Goldman, Minority Counsel; and Caroline Paris-Behr, 

Minority Policy Analyst. 

OPENING STATEMENT OF HON. ROBERT E. LATTA, A 

REPRESENTATIVE IN CONGRESS FROM THE STATE OF OHIO 

Mr. LATTA. Well, good afternoon. And I would like to call the 

Digital Commerce and Consumer Protection Subcommittee to 

order. 

And before we get started, just to let our panelists know, we 

have had two other subcommittees running today. And so we were 

downstairs, but Health is still running, and we had another subcommittee in here on telecom a little bit ago. So we kind of have 

members here, there, and everywhere today. But I just want to let 

you know what is going on with the full committee and the subcommittee. 

But I appreciate you all being here today. And, as I said, we will 

now come to order, and I will recognize myself for 5 minutes. And, 

again, good afternoon, and thank you for all appearing before us 

today. 

‘‘Drive sober or get pulled over.’’ It is a phrase that we have 

heard in classrooms and television and radio ads and seen billVerDate Nov 24 2008 13:50 Mar 19, 2019 Jkt 037690 PO 00000 Frm 00005 Fmt 6633 Sfmt 6633 U:\MY DOCS\HEARINGS 115\HEARINGS\115-149 CHRIS
2 

boards along the highway. Everyone knows that driving while 

under the influence of alcohol is dangerous and unacceptable, and 

there are methods to identify and apprehend those who break the 

law. 

Unfortunately, the consequence of driving under the influence of 

drugs has not been elevated until recently, and drugged driving 

presents new challenges to both law enforcement and health professionals. Amid the devastating opioid crisis and as more states legalize the use of marijuana, tackling this problem is now more important than ever. 

According to the Governors Highway Safety Association, in 2016, 

the number of drivers who were fatally injured in accidents with 

drugs in their system surpassed the number of those with alcohol 

in their system for the first time. 

As marijuana use increases in the general population, it continues to be the most common drug found in fatally injured drivers. 

Marijuana has been proven to increase drowsiness and decrease reaction speed, both of which limit a person’s ability to drive safely. 

Twenty percent of drivers killed in crashes in 2016 tested positive for opioids. Part of this can be tied to addiction and negligence, 

but legally prescribed opioids also play a role. When a patient is 

prescribed an opioid for pain relief, they may not understand the 

possible side effects. It is important that physicians and pharmacists draw attention to the warning labels and give consumers 

the information they need to take their medication safely. 

Driving while impaired is illegal in all 50 states, but there is no 

definition of drug impairment, and testing practices vary from state 

to state. Unlike with alcohol, there is no widely used drug field test 

comparable to a breathalyzer. Instead, most officers learn how to 

recognize signs of drug impairment, including drivers’ verbal and 

physical responses to questions and instructions. Teaching these 

methods has been a challenge, and the lack of data on drugged 

driving only exacerbates this challenge. 

New methods for roadside drug testing are being developed and 

deployed in several states, including saliva tests. At their summit 

in March, NHTSA committed to examining the operation of these 

tests and improving the data the government has about druggeddriving-related fatalities. Understanding the problem is an important first step to fixing it. 

Today, we are here to discuss what local, state, and Federal efforts are being made to combat this issue and what else needs to 

be done. Public education is an essential component of fighting 

drugged driving. We believe that, with improvements in awareness, 

the dangers of drugged driving will be as well understood as drunk 

driving. Additionally, we believe our witnesses can detail what 

Congress can consider to help stop this dangerous trend. 

Almost 1 year ago, this committee unanimously passed the SELF 

DRIVE Act. Getting safe self-driving cars on the road would prevent the senseless deaths of thousands of Americans on roadways 

every year. Until that day comes, we need to all do all we can to 

raise awareness of the dangers of impaired driving. 

More recently, this committee developed a package of over 50 

bills, including my legislation, the INFO Act, to address the opioid 

3 

crisis. These bills were included in the bipartisan House-passed 

opioids package. 

My bill creates a public dashboard consisting of comprehensive 

information and data on nationwide efforts to combat the opioid 

crisis. Establishing a one-stop shop makes it easier for individuals 

to access and analyze data that could lead to real solutions that 

save lives. 

We are committed to the communities and families confronting 

this challenge on a daily basis and will continue investigating key 

areas that contribute to the crisis. I want to thank you all again 

for being with us today. 

And, at this time, I yield back the balance of my time, and I 

would like to recognize the gentlelady from Illinois, the ranking 

member of the subcommittee, for 5 minutes. 

[The prepared statement of Mr. Latta follows:] 

PREPARED STATEMENT OF HON. ROBERT E. LATTA

Good morning and thank you to all our witnesses for appearing today. ‘‘Drive 

sober or get pulled over.’’ It’s a phrase that we have heard in classrooms and television and radio ads, and seen on billboards along the highway. Everyone knows 

driving while under the influence of alcohol is dangerous and unacceptable, and 

there are methods to identify and apprehend those who break the law. Unfortunately, the consequences of driving under the influence of drugs has not been elevated until recently, and drugged driving presents new challenges to both law enforcement and health professionals. 

Amid the devastating opioid crisis, and as more states legalize the use of marijuana, tackling this problem is now more important than ever. According to the Governors Highway Safety Association, in 2016 the number of drivers who were fatally 

injured in accidents with drugs in their system surpassed the number of those with 

alcohol in their system for the first time. 

As marijuana use increases in the general population, it continues to be the most 

common drug found in fatally injured drivers. Marijuana has been proven to increase drowsiness and decrease reaction speed, both of which limit people’s ability 

to drive safely. 

Twenty percent of drivers killed in crashes in 2016 tested positive for opioids. 

Part of this can be tied to addiction and negligence, but legally prescribed opioids 

also play a role. When a patient is prescribed an opioid for pain relief, they may 

not understand the possible effects. It is important that physicians and pharmacists 

draw attention to the warning labels and give consumers the information they need 

to take their medication safely. 

Driving while impaired is illegal in all 50 states, but there is no set definition of 

drug impairment and testing practices vary from state to state. Unlike with alcohol, 

there is no widely used drug field test comparable to a breathalyzer. Instead, most 

officers learn how to recognize signs of drug impairment, including driver’s verbal 

and physical responses to questions and instructions. Teaching these methods have 

been a challenge, and the lack of data on drugged driving only exacerbates that 

challenge. 

New methods for roadside drug testing are also being developed and deployed in 

several states, including saliva tests. At their summit in March, NHTSA committed 

to examining the operation of these tests, and improving the data the government 

has about drugged-driving related fatalities. Understanding the problem is an important first step to fixing it. 

Today, we’re here to discuss what local, state, and Federal efforts are being made 

to combat this issue, and what else needs to be done. Public education is an essential component of fighting drugged driving. We believe that with improvements in 

awareness, the dangers of drugged driving will be as well-understood as drunk driving. Additionally, we believe our witnesses can detail what Congress can consider 

to help stop this dangerous trend. 

Almost 1 year ago, this Committee unanimously passed the SELF DRIVE Act. 

Getting safe, self-driving cars on the road would prevent the senseless deaths of 

thousands of Americans on our roadways every year. Until that day comes, we need 

to do all we can to raise awareness of the dangers of impaired driving. 

4 

More recently, this committee developed a package of over 50 bills, including my 

legislation, the INFO Act, to address the opioids crisis. These bills were included 

in the bipartisan House-passed opioids package. My bill creates a public dashboard 

consisting of comprehensive information and data on nationwide efforts to combat 

the opioid crisis. Establishing a one-stop-shop makes it easier for individuals to access and analyze data that could lead to real solutions and save lives. We are committed to the communities and families confronting this challenge on a daily basis 

and will continue investigating key areas that contribute to the crisis. 

Thank you again for being here and I look forward to your testimony. I yield to 

Ranking Member, the gentlelady from Illinois, Ms. Schakowsky, for 5 minutes. 

OPENING STATEMENT OF HON. JANICE D. SCHAKOWSKY, A 

REPRESENTATIVE IN CONGRESS FROM THE STATE OF ILLINOIS 

Ms. SCHAKOWSKY. Thank you, Mr. Chairman. 

I am happy that we are holding this hearing today on drugged 

driving. Today’s hearing really comes down to one question: What 

is NHTSA doing in order to combat all impaired driving? 

‘‘Impaired driving’’ is a term used to describe driving while affected by alcohol or legal or illegal drugs. Impaired driving risks 

the lives not only of the impaired driver but everyone else as well. 

Everyone else is on the road. And those substances have no place 

in our society. It is illegal in every state. 

The Foundation for Advancing Alcohol Responsibility funded a 

report in 2015 that found that drugs were found in the system of 

43 percent of fatally injured drivers among those who were tested. 

While this statistic of course raises concern, I have questions and 

concerns about the methodology and accuracy of the statement and 

share many of the safety advocates’ concerns that this could divert 

attention and resources from efforts to curb drunk driving. 

Alcohol continues to cause more deaths than drugs. In 2016, according to a report from January of this year issued by the National Academies, more than 10,000 people were killed in crashes 

involving a drunk driver. 

This issue is a complicated one because there are hundreds of 

drugs, whether they be prescription, over-the-counter, or illegal, 

that can and do impair driving. Complicating matters further, 

drugs of all kinds affect individuals differently. And data on drug 

presence, like put forth by the Foundation for Advancing Alcohol 

Responsibility, is often misleading. 

Further complicating matters, there is no national accepted 

method for testing the drug impairment of a driver. Positive drug 

tests do not necessarily yield accurate results, as trace amounts of 

many drugs can linger in a person’s system for weeks, meaning 

that the driver may not necessarily be impaired, even when testing 

positive for some drugs. 

The National Highway Transportation Safety Administration, 

NHTSA, conducted a study in 2016 that found ‘‘alcohol was the 

largest contributor to crash risks,’’ and that ‘‘there was no indication that any drug significantly contributed to crash risks.’’ And 

yet, in 2018, NHTSA launched a National Drug-Impaired Driving 

Initiative, and, in March, NHTSA held a Drug-Impaired Driving 

Summit to engage on this issue. 

In Carol Stream, Illinois, local law enforcement is experimenting 

with a new swab test in order to test for a number of drugs, includVerDate Nov 24 2008 13:50 Mar 19, 2019 Jkt 037690 PO 00000 Frm 00008 Fmt 6633 Sfmt 6633 U:\MY DOCS\HEARINGS 115\HEARINGS\115-149 CHRIS
5 

ing marijuana, cocaine, amphetamines, methamphetamines, and 

opioids like heroin. The potential for such a test is undoubtedly 

promising, but I would urge caution, as such a test is unlikely to 

be admissible in court for some time. And, again, this may take 

precious resources away from preventing drunk driving. 

On the Federal level, I hope that NHTSA is working with state 

and local enforcement and transportation agencies to ensure that 

they are widely deploying resources to protect public safety. If 

NHTSA is going to prioritize drugged-driving enforcement and prevention and turns attention away from other risks, it is critical to 

ensure that we have accurate data to suggest that shifting their 

focus away is justified and, importantly, must ensure that they 

have accurate testing to ensure enforcement action is effective and 

accurate. 

I also hope that NHTSA continues to fulfill its mission of reducing death, injuries, and economic losses from motor vehicle crashes; 

that it works with other agencies to ensure that substance abuse 

treatment is also available for those who suffer from addiction. We, 

as a society and as Federal Representatives, must take a whole approach to curbing drunk and drugged driving, and that must include treating the underlying causes. 

I am trying to look at time. What do I have left? Twenty-two seconds. Let me see. 

I don’t want to leave the impression that I don’t think drugged 

driving is a problem. I do. And I think we need to do everything 

we can to make sure that we have the proper data to justify its importance. We do know about drunk driving, and we want to make 

sure that that effort to stop it continues. 

And I yield back. 

Mr. LATTA. Thank you. 

The gentlelady yield back, and the chair now recognizes the gentleman from Oregon, the chairman of the full committee, for 5 minutes. 

OPENING STATEMENT OF HON. GREG WALDEN, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF OREGON 

Mr. WALDEN. Thank you, Mr. Chairman. 

Good afternoon, and I want to thank our witnesses for participating in today’s hearing. We value your testimony. 

Sadly, we have all known too many lives cut short because of the 

reckless decision of some to get behind the wheel when impaired. 

About 1 in 4 traffic fatalities each year—that is roughly 10,000 

lives lost—involves an alcohol-impaired driver. 

Now, part of the problem for those trying to detect and prevent 

drug-impaired driving is the lack of statistics available. Even with 

all the advances in vehicle safety and crash avoidance systems in 

recent years, they are not enough to stop the fatal consequences of 

driving while impaired, whether by alcohol, marijuana, opioids, or 

a deadly combination. It is a real issue in Oregon, both for employers and others, is trying to find something that detects appropriately marijuana consumption in those who are at work or on the 

road. 

According to one recent study by the Governors Highway Safety 

Association, in 2016, about 20 percent of fatally injured drivers 

6 

who had drugs in their system tested positive for opioids, 20 percent, compared to 17 percent in 2006. So we are seeing an upward 

trend here in the presence of opioids and fatally injured drivers on 

the rise over the last 10 years. 

The Energy and Commerce Committee is all too familiar with 

the lethal effects of the opioid crisis, and drug-impaired driving is 

yet another fact of combating this national scourge. 

More than 50 bills from this committee were included in H.R. 6— 

that is the SUPPORT for Patients and Communities Act—to address various aspects of this crisis, including prevention, treatment, 

and support for both those battling addiction as well as their families. 

This is a crisis we have been working to combat over multiple 

Congresses in a bipartisan way, and we will continue in our efforts 

to legislate and evaluate and legislate as we go forward. 

Drug-impaired driving creates unique challenges for law enforcement. Whereas nearly every law enforcement agency in America 

has the resources to test for driving under the influence of alcohol, 

similar resources are often lacking when it comes to illegal narcotics. The lack of scientifically confirmable evidence of drug-impaired driving can make it difficult for law enforcement officers and 

prosecutors to keep impaired drivers off our roads. 

However, statistics provided by the National Highway Traffic 

Safety Administration make it clear this danger is on the rise. 

So I look forward to the testimony you are going to give to the 

committee and your answers to our questions. You are on the front 

lines in this battle, and I know you have the expertise to help us 

understand how better to deal with it. 

I also want to mention that this month marks the 1-year anniversary of when this committee unanimously passed the SELF 

DRIVE Act. I know Ms. Schakowsky played a huge role in that, 

and Mr. Pallone and others on the committee. It is a national Federal framework to ensure safe and innovative testing, development, 

and deployment of self-driving cars. Getting safe self-driving cars 

on the road would go a long way to preventing a lot of highway fatalities, the more than 100 Americans who die every day behind 

the wheel. 

But we are waiting for the Senate. So, we need them to act. Then 

we can get a bill down to the President’s desk and America can 

lead in the effort on creating self-driving vehicles and safer highways. 

So, Mr. Chairman, thanks for your great leadership on that effort, as well, and Ms. Dingell and others who have put so much 

time and energy into our SELF DRIVE Act. We need to pull out 

all the stops to find agreement, get the Senate to move, get agreement, get that down to the President. 

So, with that, Mr. Chairman, I yield back. 

[The prepared statement of Mr. Walden follows:] 

PREPARED STATEMENT OF HON. GREG WALDEN

Good morning and thank you to our witnesses for appearing before us today to 

participate in our hearing on drug-impaired driving. 

Sadly, we have all known too many lives cut short because of the reckless decision 

of some to get behind the wheel impaired. About 1 in 4 traffic fatalities each year, 

7 

that’s roughly 10,000 lives lost, involves an alcohol- impaired driver. Part of the 

problem for those trying to detect and prevent drug- impaired driving is the lack 

of statistics available. Even with all of the advances in vehicle safety and crash 

avoidance systems in recent years, they are not enough to stop the fatal consequences of driving while impaired, whether by alcohol, marijuana, opioids, or a 

deadly combination. 

According to one recent study by the Governors Highway Safety Association, in 

2016, about 20 percent of fatally-injured drivers who had drugs in their system tested positive for opioids. Compared to 17% in 2006, we’re seeing a stark trend here 

with the presence of opioids in fatally-injured drivers on the rise over the past decade. 

The Energy and Commerce Committee is all too familiar with the lethal effects 

of the opioid crisis, and drug-impaired driving is yet another facet of combating this 

national scourge. More than 50 bills from this committee were included in H.R. 6, 

the SUPPORT for Patients and Communities Act to address various aspects of this 

crisis, including prevention, treatment, and support both for the those battling addiction, as well as their families. This is a crisis we have been working to combat 

over multiple Congresses, and we will continue our efforts until we stem the tide. 

Drug-impaired driving creates unique challenges for law enforcement. Whereas 

nearly every law enforcement agency in America has the resources to test for driving under the influence of alcohol, similar resources are often lacking when it comes 

to illegal narcotics. The lack of scientifically confirmable evidence of drug-impaired 

driving can make it difficult for law enforcement officers and prosecutors to keep 

impaired drivers off of our roads. However, statistics provided by the National Highway Traffic Safety Administration (NHTSA) make it clear that this danger is on the 

rise. 

Today, I look forward to hearing from you, our witnesses, about what Congress 

can and should be doing to help those on the front lines detect and prevent drugged 

driving. I know your expertise will provide this committee a better understanding 

of the size and scope of the problem, as well as the obstacles to better detecting impaired drivers. 

I also want to mention that this month marks the 1-year anniversary of when this 

committee unanimously passed the SELF DRIVE Act, providing the first federal 

framework to ensure the safe and innovative testing, development, and deployment 

of self-driving cars. Getting safe self-driving cars on the road would go a long way 

to preventing the deaths of more than 100 Americans who die every day behind the 

wheel. 

But until that day, we must do everything we can to prevent senseless and avoidable tragedies caused by drug-impaired driving. Thank you, and I yield back. 

Mr. LATTA. Well, thank you very much. 

The gentleman yields back the balance of his time. The chair 

now recognizes the gentleman from New Jersey, the ranking member of the full committee, for an opening statement for 5 minutes. 

OPENING STATEMENT OF HON. FRANK PALLONE, JR., A REPRESENTATIVE IN CONGRESS FROM THE STATE OF NEW JERSEY 

Mr. PALLONE. Thank you, Mr. Chairman. 

Today’s hearing explores the complex topic of drugged driving. 

We know that driving under the influence of some drugs presents 

dangers to everyone on the road, and these drugs can impair judgment, slow reaction time, or distort perception. At the same time, 

there are many unknowns about the correlation of drugs and car 

crashes, and I expect we will address some of them today. 

Hundreds of different drugs, including prescription, over-thecounter, and illicit drugs, can affect a person’s driving. Unfortunately, the relationship between a specific drug’s effect on driving 

ability is still not well understood. Different substances affect different people in different ways. Drugs are frequently used together. 

Often, illicit drugs are used in the presence of alcohol. And the 

8 

combined effects of multiple drugs on driving performance requires 

more consideration. 

The scope of the drugged-driving problem is also unclear. Today, 

there is no nationally accepted method for testing whether a driver 

is impaired by drugs. Because trace amounts of certain drugs can 

linger in a person’s system for weeks, a positive drug test result 

does not necessarily mean that the driver was impaired while driving. Moreover, the reporting of data of accidents involving drivers 

with drugs in their systems is inconsistent across jurisdictions, and 

nationwide data are incomplete. 

So we should take the issue of drugged driving seriously so that 

we can adequately address the problem, but because we must appropriately allocate resources, our review should be of impaired 

driving more broadly. We should not neglect the causes of impaired 

driving, especially alcohol-impaired driving, which remains the 

leading cause of traffic fatalities. 

The statistics for drunk driving are alarming. Every 2 minutes 

a person is injured, every 51 minutes a person is killed in a drunk 

driving crash. The Centers for Disease Control and Prevention reported that, in 2016, more than 10,000 people were killed in alcohol-impaired crashes. And drunk driving accounts for about 28 percent of all traffic-related deaths. 

And, as reported just last week, one-third of pedestrians killed 

in car crashes in 2016 were found to be over the legal alcohol limit. 

Of course, we should not blame the victims who try to do the right 

thing and not get behind the wheel when they have been drinking, 

but perhaps policies that encourage us to stay away from our cars 

also should consider that more people will be walking. 

While the number of deaths linked to drugged driving is less 

clear than other causes of impaired driving, no one should drive 

impaired. If you are unable to function normally or safely when operating a motor vehicle, you should not get behind the wheel. Even 

common over-the-counter medicines can have adverse effects on 

driving performance. 

And recent studies show that drowsy driving can be just as dangerous as drunk driving. In fact, my home State of New Jersey has 

a law that prohibits driving while drowsy. Under the law, a driver 

who goes without sleep for more than 24 consecutive hours and 

causes a fatal crash can be charged with vehicular homicide and 

face up to 10 years in prison and a $100,000 fine. 

So impaired driving takes on many forms, but the wreckage left 

behind is the same. It has devastating consequences to family, 

friends, neighborhoods, and communities across the country. And I 

hope we continue to work together to fight impaired driving. 

I don’t know if anyone wants any of my time, but, if not, I will 

yield back, Mr. Chairman. 

Mr. LATTA. Well, thank you very much. 

The gentleman does yield back the balance of his time, and that 

will conclude opening statements from our members. 

And, also, the chair reminds members that all of their statements will be included in the record. 

Again, we want to thank our panel for being with us today to testify before the subcommittee. 

9 

Today’s witnesses will have the opportunity to give a 5-minute 

opening statement, followed by a round of questions from the members. 

Our witness panel for today’s hearing will include Dr. Robert L. 

DuPont, the President of the Institute for Behavior and Health; 

Ms. Jennifer Harmon, the Assistant Director of Forensic Chemistry 

at Orange County Crime Lab; Ms. Colleen Sheehey-Church, the national President of Mothers Against Drunk Driving; and Ms. Erin 

Holmes, the Director of the traffic safety programs and technical 

writer at responsibility.org. 

And, again, we appreciate your being here to give us your testimony. 

And, Mr. DuPont, you will be recognized first, and you are recognized for 5 minutes for your opening statement. Thank you very 

much. 

STATEMENTS OF ROBERT L. DUPONT, M.D., PRESIDENT, INSTITUTE FOR BEHAVIOR AND HEALTH; JENNIFER HARMON, ASSISTANT DIRECTOR, FORENSIC CHEMISTRY, ORANGE COUNTY CRIME LAB; COLLEEN SHEEHEY-CHURCH, NATIONAL 

PRESIDENT, MOTHERS AGAINST DRUNK DRIVING; AND ERIN 

HOLMES, DIRECTOR, TRAFFIC SAFETY PROGRAMS, TECHNICAL WRITER, FOUNDATION FOR ADVANCING ALCOHOL 

RESPONSIBILITY 

STATEMENT OF ROBERT L. DUPONT, M.D. 

Dr. DUPONT. Thank you very much, Mr. Chairman. 

I am President of the Institute for Behavior and Health, a nonprofit organization committed to understanding the modern drug 

epidemic and to develop policies to reverse that, to turn it back. 

I am a graduate of the Harvard Medical School, a physician. I 

did my training at Harvard and also at NIH. And I have been 

working on the problem of drugged driving for four decades, including as the Director of the National Institute on Drug Abuse, the 

first Director. And I also served as the White House Drug Czar for 

two Presidents, Nixon and Ford, and have been active in that field 

all of my professional life. 

Two trends I want to bring to everybody’s attention in all the 

numbers we talk about. One is the fact that the highway deaths 

have gone up for the first time in a long time, and they have gone 

up by a significant number. That is very important to notice. The 

second trend is the increasing presence of drugs in drivers tested, 

whether in fatal crashes or in the National Roadside Survey. 

I want to focus on four ideas that I hope will be useful. 

The first is thinking about alcohol as a model for understanding 

impaired driving. This is very useful in many ways, but there is 

one area where it has catastrophic effects, and that is the search 

for a point equivalent to a .08 BAC. That will never happen with 

marijuana and other drugs. It cannot happen, because there is no 

fixed relationship between the blood level and impairment for other 

drugs. Alcohol is the exception, not marijuana, in this. And we are 

going to have exactly that problem with every single drug, and it 

cannot be fixed by additional research. That is number one. 

10 

Number two, the drug problem and alcohol problem are not just 

a drug like marijuana or alcohol, because what is dominant now is 

polydrug use. Many of the people who are arrested for alcohol have 

drugs present in them. Many of the people with drugs have alcohol. 

And so we are talking about a polydrug. To look at this druggeddriving problem as this drug and that drug misses what is happening to the drug epidemic in the United States. It is a polydrug 

epidemic. 

The third point is that they are talking about metabolites that 

are present and misleading. Let me assure you that there are no 

metabolites present when the parent drug is not in the brain. If the 

metabolite of marijuana is in the urine, at that time THC is in the 

brain. The metabolites are quickly eliminated. It is the THC that 

stays, not the metabolite. 

The fourth point is a thought experiment. We have for decades— 

and I was part of this—had safety-sensitive jobs be drug-tested, 

with a zero-tolerance standard. The prototype is commercial airline 

pilots. We have a zero tolerance for that because of safety. 

Now, I want you to think about the question of whether it makes 

sense to do that. Is that a good idea or a bad idea? And the reality 

is the pilots are professional at their job; the people driving in the 

cars are amateurs. Last year, we had zero deaths from commercial 

airlines and we had 40,000 deaths from the highway. 

Why in the world do we have a lower standard for drivers of cars 

than we have for pilots? And if you don’t think it is needed, why 

don’t you stop doing it for pilots? I think if you think about that 

a little bit, some thoughts will come clear about what is needed 

here. 

Now, I have, quickly running along, several points to get at. 

First of all, we need local and national data. The problem is deficient in having data. That is really important. 

We need to test every driver arrested for impairment. And I emphasize the testing comes after the arrest for impairment, not before. In the discussion, it acts as if we are just testing all drivers. 

No, we are testing drivers who have been judged to be impaired for 

the drugs. That is really important to understand. 

Third, we want to test every driver under 21, a zero tolerance for 

marijuana and other drug use. It is zero tolerance for alcohol under 

21. You don’t have to be .08 if you are under 21; any alcohol is a 

violation. It should be the same for marijuana. That would be a big 

step forward. 

We need to use administrative license revocation, which has been 

very helpful for the alcohol area, for the drug area as well. 

We need to test all drivers involved in fatalities and serious injury crashes for drugs and alcohol, not just for alcohol. And when 

you get one positive for alcohol, you don’t stop testing, because you 

want to know about the drugs too. That is really important conceptually. 

And because it is a polydrug problem, we need to have penalties, 

additional penalties, for people who have multiple drugs. It is a different situation, and it requires a different response. 

NHTSA needs to organize the FARS data and publish those results annually as it now does with alcohol. It doesn’t do it for 

11 

drugs. It needs to do that. And NHTSA needs to establish guidelines for what drugs to test for and what the cutoff levels are. 

Finally, we need sentinel sites around the country that report on 

a real-time basis. I favor the shock trauma units, which are easy 

to get access to. And half a dozen of those around the country could 

give you real-time data, highly sophisticated results about traffic 

injuries, serious injuries, and monitor the problem on a real-time 

basis and not wait 5 years for the answer. 

I think that the opportunity is immense right now, and this committee has a tremendously important positive role for it. I am very 

optimistic that we will move forward with it. But the idea that we 

are going to find the magic bullet that is going to solve this problem is completely wrong. And that idea that ‘‘look for the .08 equivalent for marijuana and other drugs and we will act when we get 

that’’ is completely contrary to the public interest and public safety. 

We need to move now. We have lots of good ideas. They need to 

be implemented. 

And the idea that they are going to stop our interest in alcohol 

is completely wrong. These things go together. They are not two 

sides of a teeter-totter. Enhancing one enhances the other. And you 

see that in the behavior of what is going on. So to pose this as 

just—that is completely wrong. 

Thank you very much. 

[The prepared statement of Dr. DuPont follows:] 

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Prepared Testimony of Robert L. DuPont, MD 

Before the House Energy and Commerce Committee's 

Subcommittee on Digital Commerce and Consumer Protection Hearing 

Examining Drug-Impaired Driving 

July 11, 2018 

Thank you for the opportunity to present my testimony today. My name is Dr. Robert L. DuPont 

and I am President of the Institute for Behavior and Health, a non-profit organization that 

develops ideas to reduce illegal drug use. Since 1980 I also have been Clinical Professor of 

Psychiatry at the Georgetown University School of Medicine. Previously I served as first 

Director of the National Institute on Drug Abuse (NIDA) and the second White House Drug 

Chief. My full CV is enclosed. 

Drug-impaired driving is a serious and growing threat to public safety on par with the better 

known problem of alcohol-impaired driving. 

The National Roadside Survey (NRS) first conducted in 1973 has shown impressive declines in 

the prevalence of alcohol among drivers over the last several decadcs. 1 The NRS tested oral 

fluid and blood of drivers for the prevalence of drugs in addition to alcohol for the first time in 

2007 and found that 16.3 percent of weekend nighttime drivers in the US were positive for 

potentially impairing drugs. In the most recent NRS conducted in 2013-2014,22.5 percent of 

drivers were drug-positive, a dramatic 38 percent increase. Moreover, drugs were found at 

similar rates during both weekday days and weekend nights. Tetrahydrocannabinol (THC), the 

1 Berning, A., Compton, R., & Wochinger, K. (2015, February). Results of the 2013-2014 National Roadside 

Survey of Alcohol and Drug Use by Drivers. Traffic Safety Facts, Research Note. DOT HS 812 118. Washington, 

DC: US Department of Transportation, National Highway Traffic Safety Administration, Office of13ehavioral 

Research. Available: https://www.nhtsa.gov/sites/nhtsa.dot.gov/files/812118-roadside survey 20 l4.pdf 
13 


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primary psychoactive ingredient in marijuana, or its metabolite 11-hydroxy-THC (11-0H-THC) 

was found among II. 7 percent of drivers during weekday days and 12.6 percent of drivers 

during weekend nights. Concurrent testing for alcohol showed not only lower prevalence but also 

variation between weekday and weekend use: alcohol use was more prevalent among drivers 

during weekend nights (8.3 percent) than weekday days (1.1 percent). 

Among fatally injured drivers, potentially impairing drugs were found recently at much higher 

rates than in years past. The most recent data from the Fatality Analysis Reporting System 

(FARS) showed that in 2016, 43.6 percent of drivers with known drug tests results were drugpositive.2 In 2006, this figure was at 27.8 percent- a remarkable 57 percent increase over the 

course of ten years. 

My core message to you today is this: Although progress has been made in recent years on the 

recognition of the problem of drugged driving, the current approaches laws, programs and 

public education- are grossly inadequate in the context of the national drug epidemic and the 

expansion of state-based legalization of marijuana. 

The primary conflicts over efforts to address drugged driving center around marijuana, an 

impairing drug that can adversely affect the skills needed for safe driving.3 There is a natural 

2 Hedlund, J. (2018, May). Drug-Impaired Driving: Marijuana and Opioids Raise Critical Issues for States. 

Washington, DC: Governors Highway Safety Association. Available: https://www.ghsa.org/resources/DUID18 3 Examples include: Hartman, R. L., Brown, T. L., Milavetz. G., Spurgin, A., Pierce, R. S., ... , Huestis, M.A. 

(2015). Cannabis effects on driving lateral control with and without alcohol. Drug and Alcohol Dependence, I 54, 

25-47. Available: https://www.ncbi.nlm.nih.gov/pmc/articles/PMC4536116/; Lenne, M.G., Dietz, P.M., Triggs, T. 

1., Walmsley, S., Murphy, B., & Redman, J. R. (2010). The effects of cannabis and alcohol on simulated arterial 

driving: influences of driving experience and task demand. Accident; Analysis and Prevention. 42(3), 859-866; 

Hartman, R. L., & Huestis, M.A. (2013). Cannabis effects on driving skills. Clinical Chemistry, 59(3),478-492 

Available: https://www.ncbi.nlm.nih.gov/pmc/articles/PMC3836260/ 

2 
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instinct to manage the problem of marijuana-impaired driving in the same way as alcoholimpaired driving by identifying a scientifically valid tissue level for marijuana impairment that is 

analogous to the blood alcohol concentration (BAC) of0.08 g/dL. Under such a scheme, any 

driver suspected of impaired driving with a specific level ofTHC, would be "impaired". This 

proposal sounds sensible. It is impossible. 

No amount of additional research can determine a tissue level associated with impairment for 

marijuana (or any other drug) analogous to the BAC limit.4 This is because alcohol is an unusual 

drug: it is water-soluble. That means that brain levels and impairment are closely correlated with 

blood levels. As intake of alcohol increases, impairment increases and blood alcohol levels 

increase correspondingly; likewise, as blood alcohol level decreases, impairment decreases. 

Unlike alcohol, THC is not water soluble, only fat 

soluble, so after marijuana is smoked, THC is 

quickly eliminated from the blood- 90% in the 

first hour after smoking -and moves to fatty 

tissues in the body including, crucially, the brain. 

Almost immediately after smoking marijuana, 

blood levels ofTHC peak, then dramatically fall 

(see figure at right). 5 

160 ¢ Peak THC blood level 

140 

120 -- ntC -o- 11-otf.ntC 

..J 100 -- THCCOOit 

e 60 a, 

c 60 

0 2 3 4 

H 

-~~~~ Hours 

Figure 2. Mean p~sma levels of THC. 11·0H·THC. and THCCOOH during 

and after smoldno a. alngle 3,55% THC marijuana cioaretts. 

4 Reisfield, G. M., Goldberger, B. A., Gold, M.S. & DuPont, R. L. (2012). The mirage of impairing drug 

concentration thresholds: A rationale for zero tolerance per se driving under the influence of drugs laws. Journal of 

Analytical Toxicology, 36(5), 353-356: Huestis, M.A. (2015). Cannabis-impaired driving: a public health and safety 

concern. Clinical Chemistry, 61(10), 1223-1225. Available: http://clinchem.aaccjnls.org/content/61/10/1223 

'Huestis, M.A., Henningfield, J. E., & Cone, E. J. (1992). Blood cannabinoids. I. Absorption ofTHC and fonnation 

ofTHC and of 11-0H-THC and THCOOH during and after smoking marijuana. Journal ofAna/ytical Toxicology, 

16(5), 276-282. 

3 
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Further complicating the picture is the metabolism of marijuana "edibles". When marijuana is 

ingested orally as an "edible", the THC is absorbed and sent to the liver where it is partially 

metabolized and then circulated to the brain and other fatty tissues. This delay in absorption and 

distribution to the brain means a person who eats marijuana will not be immediately impaired 

and likely will feel confident about driving. However, an hour later that individual behind the 

wheel could be severely impaired with THC blood- and brain- levels peaking up to four hours 

after consumption. 

The contrast between metabolism of alcohol and marijuana (and other drugs) is only one of 

many reasons there will never be BAC equivalents for marijuana and other drugs. Other key 

factors include but are not limited to tolerance and drug-to-drug and drug-to-alcohol interactions. 

Simultaneous use of multiple impairing drugs is deeply concerning, particularly the simultaneous 

use of alcohol and marijuana, which is the most common drug combination among drivers. The 

use by drivers of prescription drugs is an added concern for impaired driving. There is no 

interest in hindering medical care of patients; however, even when drivers have valid 

prescriptions for potentially impairing drugs, it is illegal for these individuals to drive impaired 

by these drugs alone or in combination with alcohol and other drugs. Nationally, half (50.5 

percent) of all deceased drug-positive drivers in 2016 were positive for two or more drugs and 

40.7 percent were positive for alcohol. Drug-impaired driving is by no means limited only to 

marijuana-impaired driving and yet the largely singular focus on marijuana and driving severely 

hinders progress in reducing all drug-impaired driving. 

4 
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Marijuana advocates fear action on drugged driving because they fear that drivers who are not 

impaired will test positive for marijuana use that occurred long (weeks or months) before the 

test. While it is possible to detect THC in some chronic daily marijuana users following a period 

of sustained abstinence, 6 many chronic marijuana users show significant psychomotor 

impairment three weeks after last marijuana use. 7 

Most importantly, however, drivers are asked to submit to laboratory tests for drugs a{ier law 

enforcement officers determine they are impaired and arrest them, or alternatively, if they arc 

involved in serious or fatal crashes and arc required to submit to testing under state law. No 

matter the circumstances under which drug testing of drivers takes place, the testing typically 

occurs between 90 and 120 minutes- or longer- after driving in non-crash cases while drug 

testing may not occur for 2 to 4 hours in crash cases, further highlighting the need for effective 

action to address this public safety threat. 

With this background, I present the following proposals for action to reduce drugged driving: 

I. Use reliable field testing technology for every driver arrested for impaired driving to test 

for alcohol and potentially impairing drugs, including marijuana. 

6 Bergamaschi, M., Larschner, E. L., Goodwin, R. S., Scheidweiler, K. B., Hirvonen, J., ... , Huestis, M.A. (2013). 

Impact of prolonged cannabinoid excretion in chronic daily cannabis smokers' blood on per se drugged driving 

laws. Clinical Chemistry, 59(3), 519-526. Available: https:/lwww.ncbi.nlm.nih.govlpmclarticles/PMC3717350/ 7 Bosker, W. M., Karschner, E. L., Lee, D., Goodwin, R. S., Hirvonen, J., Innis, R. B., Theunissen, E. L., Kuypers, 

K. P., Huestis, M.A., & Ramaekers, J. G. (2013). Psychomotor function in chronic daily cannabis smokers during 

sustained abstinence. PLoS One, 8(1):e53127. 

5 
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2. Apply to every driver under 21 years old who tests positive for any illicit or impairing 

drug, including marijuana and impairing prescription drugs without a valid prescription, 

the same zero-tolerance standard specified for alcohol, the use of which in this age group 

is illegal. 

3. Apply to every driver found to have been impaired and positive for drugs, including 

marijuana, the same remedies and penalties that are specified for alcohol-impaired 

drivers, including administrative or judicial license revocation. 

4. Apply additional penalties to impaired drivers that arc positive for multiple drugs, 

including alcohol. 

5. Require every driver involved in a crash which results in a fatality or significant injury, 

including injury to pedestrians, who could be charged with a moving violation to provide 

a sample for testing. Test those samples for alcohol and impairing drugs, including 

marijuana, a panel of opioids, and other prescription drugs. 

6. Ask the National Highway Traffic Safety Administration (NHTSA) to report FARS drug 

test data annually as is presently done for alcohol. Reporting rates of drug test results to 

the national F ARS database vary dramatically from state to state, with further variation in 

testing technology. Systemic changes arc needed across states for improved collection 

among both fatally injured drivers and impaired driving suspects. 

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7. Develop sentinel studies of seriously injured drivers treated at half a dozen major shock 

trauma centers to provide near real-time data about the prevalence of drugs and alcohol in 

crashes that produce serious injuries. A useful model for this can be found in the wellknown study of seriously injured drivers admitted to a Maryland Ievel-l shock-trauma 

center.' 

While most laws and programs related to drugs, including alcohol, and driving arc developed at 

the state and local level, there is a long history of federal leadership focused on reducing 

impaired driving including identifying best practices, piloting innovative programs and 

encouraging their widespread adoption. Two widely recognized examples of state-based 

changes directed by the federal government are increasing the minimum drinking age to 21 and 

setting the 0.08 BAC limit for alcohol. States were incentivized by the federal government by 

withholding a small portion of federal highway funds if these essential public health and safety 

changes were not made. It is no surprise that today all 50 states have set 21 as the legal drinking 

age and a BAC limit of 0.08 g/dL. 

Any policy actions taken to reduce drugged driving must include the essential element of public 

education. The impressive strides our country has made in reducing alcohol-impaired driving 

have been in part because of the strong public messaging of"Don't Drink and Drive" that has 

been coupled with effective enforcement. Public education efforts reinforce the laws, and the 

laws reinforce public education efforts. The analogous message for drugged driving that must be 

8 Walsh, J. M., Flegel, R., Atkins, R., Cangianelli, L.A., Cooper, C., ... , & Kerns, T. J. (2005). Drug and alcohol 

use among drivers admitted to a Level-l trauma center. Accident Analysis & Prevention, 37(5), 894-901. 

7 
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conveyed in a clear and comprehensive way backed by policies and active enforcement is "Don't 

Use Drugs and Drive." 

There is widespread public support for the limits set on drug use and alcohol for commercial 

drivers, commercial pilots, train operators and others in safety sensitive positions. That is 

because the public recognizes that safety is a priority for highways, trains and aircraft. It is 

difficult to argue that these well-established standards should not be used for every driver on the 

nation's roads and highways given the life-and-death consequences of impairment. In 20 17 there 

were zero commercial airline fatalities. That same year there over 40,000 people lost their lives 

on our nation's roads and highways. 

As a physician who has worked for five decades to reduce the adverse health effects of drug 

abuse, including alcohol- and drug-impaired driving, I call your attention to the unique role of 

the criminal justice system in not only reducing drug abuse but also in promoting recovery. 

Arrests for alcohol- and drug-impaired driving are commonly positive turning points in the lives 

of the people who are arrested. 

As you continue to gather information about drugged driving and consider proposals for action, 

remember that driving on the nation's roads and highway is a privilege, that driving impaired is 

illegal, and that we must protect the public from drugged drivers who put not only themselves at 

risk but all others on the road- drivers, passengers, cyclists and pedestrians. Again, no one 

wants to board a plane that is operated by an alcohol- or drug-impaired pilot. Who wants to 

share the road with a drug-impaired person driving a two-ton vehicle at 65 miles per hour? 

8 
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Remember also that while your deliberations take place, people are dying on the nation's roads at 

unacceptable rates. I submit that the time for action is now. 

I would like to conclude my testimony by recognizing the leadership of Heidi King, 

Administrator of the long-leading National Highway Traffic Safety Administration (NHTSA) 

who is passionately committed to reducing the threat of drug-impaired driving. 

Finally, thank you for your leadership. This hearing is an essential public expression of the 

importance of the drugged driving issue and serves as a vital milestone on our nation's path to 

making progress in reducing this serious public safety problem. 

Enclosures: 

• Curriculum Vitae of Robert L. DuPont, MD 

• GHSA Report Drug-Impaired Driving: Marijuana and Opioids Raise Critical Issues for 

States 

• DUID Model Laws from Institute for Behavior and Health (IBH) and National 

Partnership on Alcohol Misuse and Crime (NP AMC) 

• "License revocation as a tool for combatting drugged driving" by Talpins, eta!., 2014 

• Heritage Working Paper DUID 

Recommended Websitcs: 

www.StopDruggedDriving.org 

vo~ww. DUIDVictim Voices.org 

9 
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Testimony Summary of Robert L. DuPont, MD 

• Drug-impaired driving is serious as alcohol-impaired driving. 

• Marijuana use can impair driving and is the most widely identified drug among impaired drivers 

and fatally injured drivers. 

• There will never be a 0.08 g/dL BAC equivalent for THC (marijuana) or any other drug. 

• Current efforts to combat drugged driving are not enough. Seven proposals are offered: 

1. Use reliable field testing technology for every driver arrested for impaired driving to test 

for alcohol and impairing drugs, including marijuana. 

2. Apply to every driver under 21 years old who tests positive for any illicit or impairing 

drug, including marijuana and impairing prescription drugs without a valid prescription, 

the same zero-tolerance standard specified for alcohol, the use of which in this age group 

is illegal. 

3. Apply to every driver found to have been impaired and positive for drugs, including 

marijuana, the same remedies and penalties that are specified for alcohol-impaired 

drivers, including administrative or judicial license revocation. 

4. Apply additional penalties to impaired drivers that are positive for multiple drugs, 

including alcohol. 

5. Require every driver involved in a crash which results in a fatality or significant injury 

who could be charged with a moving violation to provide a sample for testlng. 

6. Ask NHTSA to report FARS drug test data annually as is presently done for alcohol. 

Make systemic changes across states for improved collection among both fatally injured 

drivers and impaired driving suspects. 

7. Develop sentinel studies of seriously injured drivers treated at major shock trauma 

centers to provide near real-time data about the prevalence of drugs and alcohol on the 

nation's roads. 
22 

Mr. LATTA. Thank you very much. 

And, Ms. Harmon, you are recognized for 5 minutes for your 

opening statement. Thank you. 

STATEMENT OF JENNIFER HARMON 

Ms. HARMON. Thank you. And thank you again for having us 

here. 

Drug-impaired driving is not a new problem on our roadways. 

However, it is an ever-increasing one. That is certainly the case in 

Orange County. We are the sixth most populous county in the 

United States. 

My name is Jennifer Harmon. I am an assistant director with 

the Orange County Crime Lab. We are located in Santa Ana, California. Our laboratory offers comprehensive forensic testing to the 

county and all law enforcement entities contained within, which is 

over 30 municipal, State, and Federal agencies, including the district attorney’s office and the Orange County Sheriff-Coroner Division. 

For over 8 years, our laboratory has worked collaboratively with 

law enforcement, prosecutorial, and public health partners, as well 

as traffic safety advocates, to better toxicological testing, research, 

and training on drug-impaired driving in our county and the State 

of California. 

We utilize state-of-the-art technology, comprehensively testing 

apprehended DUI suspect blood samples. These are post-arrest 

samples. For nearly a year, we have been testing every driver, regardless of their blood alcohol level. This is a practice that has 

been advocated for for more than 10 years by the National Safety 

Council but is still not routine practice in public crime labs. 

Every sample is initially analyzed for alcohol, inhalants, and 

seven classifications of drugs, a total of about 50 drugs currently. 

And we report 72 different compound blood concentrations when 

we test for those compounds. 

Beginning in August of this year, every traffic-safety-related 

case, living or deceased, will be tested for over 300 drugs, to include illicit substances, prescriptions, over-the-counter medications, 

and new synthetic and designer drugs. 

Our chemical testing methods in Orange County are a mechanism to assist in populating the scientific research and a means to 

collaborate with public health partners on drug-impaired-driving 

solutions and impacts. 

As a laboratory, we test drug stability, impacts on collection 

methods, new technology options, including roadside saliva testing, 

and the correlation of drug levels on observed field impairments. 

Our testing schemes allow us to collect comprehensive countywide 

data on DUI suspects and fatally injured drivers. 

Our current countywide data suggests that 45 percent of our apprehended DUI drivers test positive for at least one drug other 

than alcohol. Twenty-nine percent of our drivers who have blood alcohol levels greater than the per se level of a .08 are positive for 

at least one other drug. 

Fifty-six percent of our fatally injured drivers test positive for at 

least one drug, nearly half of those alcohol and/or THC, the 

psychoactive drug found in marijuana. What is additionally alarmVerDate Nov 24 2008 13:50 Mar 19, 2019 Jkt 037690 PO 00000 Frm 00026 Fmt 6633 Sfmt 6633 U:\MY DOCS\HEARINGS 115\HEARINGS\115-149 CHRIS
23 

ing is that our non-alcohol-involved traffic-related cases that are 

drug-positive, 40 percent of them test for three or more drugs. 

The success of the Orange County model over the last several 

years has been due to our collaborative efforts with stakeholders. 

We cross-train our dedicated toxicologists with traffic safety law 

enforcement, prosecutors, and public and private defense. Our experts attend law enforcement training and provide reciprocal training as well. 

Our team routinely interacts with law enforcement certified drug 

recognition experts, also known as DREs, ensuring that their expertise on drug impairments, metabolism, trends, and poly-pharmacy are a marrying of field observation and scientific theory. It 

ensures that our law enforcement partners are able to maintain 

their certifications; validate their in-field, at-roadside impairment 

observations; and stay current on emerging drug trends. 

Law enforcement and toxicology expertise is critical to successful 

prosecutions of the drug-impaired in Orange County, as we have a 

95-plus-percent conviction rate on DUID cases that are tried. The 

county also houses the statewide Traffic Safety Resource Prosecutor Program, which allows for information sharing in the criminal justice system at a statewide level. 

Crime labs, in general, are severely underfunded, especially in 

the area of forensic toxicology. Our laboratory alone in the last 8 

years has seen a 60-percent increase in the number of exams conducted on our toxicology samples and an over 100-percent increase 

in the number of DUID cases processed, with a 25-percent reduction in staffing. 

However, our county has made a conscious effort to utilize resources as efficiently as possible and ensure high-quality testing on 

every case, regardless of the charge or the presence of the most 

commonly encountered substances, like alcohol. 

To understand the scope of the drug-impaired-driving problem, 

comprehensive testing must be obligated by all laboratories conducting toxicology and traffic safety-related cases. Orange County’s 

overall goal has been to share information, collaboratively train all 

stakeholders in the traffic safety system, and to collect data for 

overall better outcomes and educated traffic safety policy. 

Knowing the prevalence of the problem will result in better preventative health measures, safer roadways, and improved treatment for the drug-impaired. It also aids in improving forensic drug 

testing for all types of crimes beyond traffic safety, including drugfacilitated sexual assault, death investigation, and overdose. 

For those of us who work in America’s crime labs, no day passes 

without seeing clear evidence that confirms the fact that our nation 

is in the grips of a drug epidemic. As discussed in my testimony, 

drugs impact the safety of motorists, but, of course, the impact goes 

far beyond our roadways. 

My colleagues and I appreciate the work Congress has done and 

continues to do in addressing this problem. Those of us at the local 

level remain committed to joining you in this worthwhile effort. 

I appreciate the opportunity to share. 

[The prepared statement of Ms. Harmon follows:] 

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Witness Testimony Summary: Jennifer Harmon 

National statistics show that more than 40% of fatally-injured drivers, that were 

tested for drugs are positive, nearly the same as those with a positive blood alcohol level. 

This is certainly the case for the County of Orange, the sixth most populous county in the 

U.S. The Orange County Crime Laboratory offers comprehensive forensic testing to the 

County of Orange and all law enforcement entities contained within; over 30 municipal, 

regional, state, and federal agencies as well as the Orange County District Attorney's 

Office and the Orange County Sheriff-Coroner, Coroner Division. 

For over eight years, our laboratory has worked collaboratively with law 

enforcement, prosecutorial, and public health partners as well as traffic safety advocates 

to better toxicological testing, research and training on drugged impaired driving in our 

county and the state of California. We utilize state of the art technology to 

comprehensively test apprehended DUI suspect blood samples and fatally-injured drivers, 

regardless of their tested blood alcohol level. 

Our chemical testing methods in Orange County are a mechanism to assist in 

populating the scientific research and means to collaborate with public health partners on 

drug impaired driving impacts and solutions. Our testing schemes allow us to collect 

comprehensive county-wide data on DUI suspects and fatally-injured drivers. To 

understand the scope of the drug impaired driving problem, comprehensive testing must 

be obligated by all laboratories conducting toxicology in traffic safety related cases. 

Orange County's overall goal has been to share information, collaboratively train all 

stakeholders in the traffic safety system, and to collect data for overall better outcomes 

and educated traffic safety policy. 
25 


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Witness Testimony: Jennifer Harmon 

Drug impaired driving is not a new problem on our roadways however it is an 

ever-increasing one. National statistics show that more than 40% of fatally-injured 

drivers, that were tested for drugs are positive, nearly the same as those with a positive 

blood alcohol level. This is certainly the case for the County of Orange, the sixth most 

populous county in the U.S. My name is Jennifer Harmon and I am an Assistant Director 

with the Orange County Crime Laboratory located in Santa Ana, California. Our 

laboratory offers comprehensive forensic testing to the County of Orange and all law 

enforcement entities contained within; over 30 municipal, regional, state, and federal 

agencies as well as the Orange County District Attorney's Office and the Orange County 

Sheriff-Coroner, Coroner Division. 

For over 8 years, our laboratory has worked collaboratively with law 

enforcement, prosecutorial, and public health partners as well as traffic safety advocates 

to better toxicological testing, research and training on drugged impaired driving in our 

county and the state of California. We utilize state of the art technology to 

comprehensively test apprehended DUI suspect blood samples. For nearly a year we have 

been testing every driver regardless of their blood alcohol level. This is a practice that has 

been advocated for by the National Safety Council for over 10 years but is still not 

routine in many public crime labs. Every sample is initially analyzed for alcohol, 

inhalants, and 7 classifications of drugs, 50 drugs in total. We currently report blood drug 

concentrations for 72 different compounds. Beginning in August, every traffic safety 

related case, living or deceased, will be tested for over 300 drugs to include illicit 
26 


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substances, prescriptions, over the counter medications and new synthetic and designer 

drugs. 

Our chemical testing methods in Orange County are a mechanism to assist in 

populating the scientific research and means to collaborate with public health partners on 

drug impaired driving impacts and solutions. As a laboratory we study drug stability, 

impacts of collection methods, new technology options, including roadside saliva testing, 

and the correlation of drug levels on field observed impairments. Our testing schemes 

allow us to collect comprehensive county-wide data on DUl suspects and fatally-injured 

drivers. Our current county-wide data suggests that 45% of our apprehended DUI drivers 

test positive for at least one drug other than alcohol and 29% of drivers with blood 

alcohol levels greater than the legal per se of 0.08% (w/v) are positive for at least one 

additional drug. 56% of our fatally-injured drivers test positive for at least one drug, 

nearly half of those include alcohol and, or delta-9-tetrahydrocannabinol, THC, the 

psychoactive drug found in marijuana. What is additionally alarming is that of our nonalcohol involved traffic related cases that are drug positive, 40% have three or more 

drugs in their system. 

The success of the Orange County model over the last several years has been due 

to our collaborative efforts with stakeholders. We cross-train our dedicated DUID 

(driving under the influence of drugs) expert toxicologists with traffic safety law 

enforcement, prosecutors, and public and private defense counsel. Our experts attend law 

enforcement training and provide reciprocal training as well. Our team routinely 

interacts with law enforcements' certified Drug Recognition Experts (DRE) ensuring that 

their expertise on drug impairments, metabolism, trends, and poly-pharmacy are a 
27 


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marrying of field observation and scientific theory. lt ensures that our law enforcement 

partners are able to maintain their certifications, validate their in-field, at roadside 

impairment observations and stay current on emerging drug trends. Law enforcement and 

toxicology expertise is critical to successful prosecutions of the drug-impaired as Orange 

County has a 95+% conviction rate on DUID cases. The County also houses the 

statewide Traffic Safety Resource Prosecutor program (TSRP) which allows for sharing 

of information at a statewide level. 

Crime labs, in general, are severely under-funded especially in the area of forensic 

toxicology. Our laboratory alone, in the last 8 years, has seen a 60% increase in the 

number of exams conducted on our toxicology samples, an over 100% increase in the 

number of DUID cases processed, and a 25% reduction in staffing. However, our county 

has made a conscience effort to utilize resources as efficiently as possible and ensure high 

quality testing on every case regardless of the charge or presence of the most commonly 

encountered substances like alcohol. 

To understand the scope of the drug impaired driving problem, comprehensive 

testing must be obligated by all laboratories conducting toxicology in traffic safety 

related cases. Orange County's overall goal has been to share information, 

collaboratively train all stakeholders in the traffic safety system, and to collect data for 

overall better outcomes and educated traffic safety policy. Knowing the prevalence of 

the problem will result in better preventative health measures, safer roadways, and 

improved treatment for the drug-impaired. It also aids in improving forensic drug testing 

for all types of crime beyond traffic safety including drug-facilitated sexual assault, death 

investigation and overdose. 
28 


35235.015

For those of us who work in America's crime labs, no day passes without seeing 

clear evidence that confirms the fact that our nation is in the grips of a drug epidemic. As 

discussed in my testimony, drugs impact the safety of motorists, but of course the impact 

goes far beyond our roadways. My colleagues and I appreciate the work Congress has 

done and continues to do in addressing this problem. Those of us at the local level 

remain committed to joining you in this worthwhile effort. Thank you for the opportunity 

to share my perspective on this important topic. 
29 

Mr. LATTA. Well, thank you very much for your testimony. 

And, Ms. Sheehey-Church, you are recognized for 5 minutes. 

STATEMENT OF COLLEEN SHEEHEY-CHURCH 

Ms. SHEEHEY-CHURCH. Thank you so much. 

Chairman Latta, Ranking Member Schakowsky, and the members of the subcommittee, I want to thank you for the opportunity 

to testify today before your subcommittee on the issue of drug-impaired driving. 

My name is Colleen Sheehey-Church, and I serve as the national 

president of Mothers Against Drunk Driving, or MADD. Drugged 

driving is a serious issue and one that is gaining attention across 

our country. I look forward to sharing with the committee MADD’s 

thoughts on how best to address this problem. 

I am uniquely qualified to testify today. My son, Dustin Church, 

was killed by a drunk and drugged driver on July 10, 2004. At only 

18 years old, Dustin had graduated from high school and had his 

whole life ahead of him. That night in July, Dustin had not been 

drinking. He was doing what most kids like to do and he was hanging out with friends when they decided to go grab a pizza. 

My husband, Skip, and I had told both of our sons about not 

drinking until age 21 and never drinking and driving. We also 

talked to them about the dangers of riding in a car with a drunk 

driver. I will never know why Dustin got into that car that night, 

but I am sure, because tests showed, that he was sober and had 

buckled his seatbelt. 

Unfortunately, the driver had been drinking and had illicit drugs 

in her system. That pizza run turned tragic when the driver lost 

control of her car, careened off the road, went over a cliff and into 

a river. The driver and passenger escaped, but not Dustin. 

Early in the morning, Skip and I got that knock on the door that 

no parent should ever receive. The pain of losing someone so senselessly to a preventable crime never goes away. That is why we 

must work harder than ever to eliminate drunk and drugged driving. 

In 2015, MADD updated our mission statement to include ‘‘help 

fight drugged driving.’’ We want victims of drugged driving to know 

that we are here to serve their needs. We also know that the legalization of recreational and medicinal marijuana, the national opioid 

crisis, and the prevalence of prescription drugs in our society can 

only lead to more drug-impaired driving on our roadways. 

What we don’t know, however, is the role of drugs as causal factors in traffic crashes. This is why more research is needed. MADD 

is committed to a research- and data-driven agenda. 

I would like to call your attention to a report released earlier this 

year from the National Academy of Sciences which states that alcohol-impaired driving remains the deadliest and costliest danger on 

the U.S. roads today. Every day in the United States, 29 people die 

in an alcohol-impaired-driving crash—1 death every 49 minutes— 

making it a persistent public health and safety problem. 

The Insurance Institute for Highway Safety, also known as IIHS, 

reports that, out of all drugs, alcohol is the biggest threat on the 

roads. IIHS states that the battle against alcohol-impaired driving 

is not won and that states and localities should keep channeling reVerDate Nov 24 2008 13:50 Mar 19, 2019 Jkt 037690 PO 00000 Frm 00033 Fmt 6633 Sfmt 6633 U:\MY DOCS\HEARINGS 115\HEARINGS\115-149 CHRIS
30 

sources into proven countermeasures to deter impaired driving, 

such as sobriety checkpoints. 

The NAS and IIHS reports are important because recent headlines would lead you to believe that drug-impaired driving has 

overtaken drunk driving in terms of highway deaths. That is simply not true. The truth is that we do not know how many people 

are killed each year due to drug-impaired driving. 

There are two major obstacles to determining the scope of the 

problem. First, we lack impairment standards for drugs. According 

to the 2013–2014 National Roadside Survey, marijuana is the second most commonly found impairing drug after alcohol. Yet marijuana has no impairment equivalent to a .08 for alcohol. For prescription drugs, there are also no impairment levels for drugs legally prescribed by one doctor. 

With alcohol impairment, we know what works. MADD’s Campaign to Eliminate Drunk Driving in 2006 has created a national 

blueprint to eliminate drunk driving in our country. The campaign 

is based on proven strategy and supports law enforcement, all-offender ignition lock laws, advanced vehicle technology, and asks 

the public to help us support these initiatives. Congress has fully 

endorsed the campaign by funding its initiatives as part of both 

MAP–21 and the FAST Act. 

Mr. Chairman, MADD believes that the best way to move forward on drug-impaired driving is to do more work on drunk driving. MADD has long supported our heroes in law enforcement because we know that they are the men and women who actually get 

drunk and drugged drivers off the roads. Law enforcement is under 

enormous pressure, and nationwide arrests are down. This is a 

trend and must be reversed. And this is an area we encourage this 

committee to further explore. We must encourage law enforcement 

agencies all across the country to make traffic enforcement a priority. Sobriety checkpoints and saturation patrols catch and deter 

drunk and drugged driving. 

We also support proper training for law enforcement which helps 

them detect drugged drivers. Every law enforcement officer should 

receive the Standard Field Sobriety Testing Training. We also believe Advanced Roadside Impaired Driving Enforcement, ARIDE, 

training and the DRE, drug recognition expert, are important for 

law enforcement to be able to make drugged-driving arrests. 

In the mid to long term, we need to focus on further research and 

data to understand the scope of the drugged-driving problem. One 

important piece of research that we urge Congress to reinstate and 

fully fund is the National Roadside Survey. This study is conducted 

roughly every 10 years, and the last Roadside Survey was last conducted 2013-2014. It is a critical tool that gives policymakers like 

yourselves important information about drivers who are using alcohol and then driving on the roadways. 

With the prevalence of marijuana legalization, both recreational 

and medicinal, it is critical that more work be done to understand 

impairment. We agree with the recent AAA study which states a 

.08 equivalent may not be possible with marijuana, but we still 

must better understand how marijuana impairment influences 

driving behaviors. 

31 

In closing, I encourage the Congress to look at near-term solutions to stop recent increases in traffic fatalities. The National 

Academy of Sciences report made clear that alcohol is the leading 

killer on the roadways. Therefore, drunk driving should be a major 

focus in crash prevention. The good news is that doing more to prevent drunk driving will result in fewer drugged-driving deaths too. 

Law enforcement is the best defense against drugged and drunk 

drivers. We urge the committee to work with law enforcement leaders to make sure that traffic enforcement is a priority. 

And, finally, it is critical that we have the research and data to 

better understand this problem, to include impairment. 

Mr. Chairman, I am here because of my son, Dustin. He was 

killed by a drunk and drugged driver. It is my hope that the recommendations I am making on behalf of MADD will help to make 

progress on drunk driving and drugged driving and prevent others 

from the same tragedy that has devastated my family. 

Thank you again for the testimony. 

[The prepared statement of Ms. Sheehey-Church follows:] 

32 


35235.016

Testimony of Colleen Sheehey-Church 

National President, Mothers Against Drunk Driving 

House Energy and Commerce Committee 

Subcommittee on Digital Commerce and Consumer Protection 

July 11, 2018 

Chairman Latta, Ranking Member Schakowski, and members of the subcommittee: Thank you 

for the opportunity to testify today before your subcommittee on the issue of drug impaired 

driving. My name is Colleen Sheehey-Church and I serve as the National President of Mothers 

Against Drunk Driving, or MADD. Drugged driving is a serious issue and one that is gaining 

attention across the country. I look forward to sharing with the committee MAD D's thoughts on 

how to best address this problem. 

I am uniquely qualified to testify today. My son Dustin Church was killed by a drunk and 

drugged driver on July 10,2004. At only 18 years old, Dustin had just graduated from high 

school and had his whole life ahead of him. 

That night in July, Dustin had not been drinking. He was doing what most kids like to do and 

was hanging out with friends when they decided to go grab a pizza. My husband Skip and I had 

talked to both of our sons about not drinking until age 21 and never drinking and driving. We 

also talked to them about the dangers of riding in a car with a drunk driver. I'll never know why 

Dustin got into the car that night, but I am sure and tests showed that he was sober and had 

buckled his seat belt. Unfortunately the driver, his friend, had been drinking and had illicit drugs 

in her system. 
33 


35235.017

The pizza run turned tragic when the driver lost control of her car and it careened off the road 

into a river. The driver and passenger escaped, but not my Dustin. 

Early the next morning, Skip and I got that knock on the door that no parent should ever receive. 

The pain of losing someone so senselessly to a I 00 percent preventable crime never goes away. 

That's why we must work harder than ever to eliminate drunk and drugged driving. 

In 2015, MADD updated our mission statement to include "help fight drugged driving." As one 

of the largest victim's assistance organizations in the country, we want victims of drugged 

driving to know that we are here to serve their needs. We also know that the legalization of 

recreational and medicinal marijuana, the national opioid crisis, and the prevalence of 

prescription drugs in our society can only lead to more drug impaired driving on our roadways. 

What we don't know, however, is the role of drugs as causal factors in traffic crashes. This is 

why more research is needed. 

MADD relies on research and data to make informed public policy recommendations. Since our 

founding in 1980, we have led the way on every major drunk driving reform in our nation. The 

21 minimum drinking age, zero tolerance laws, and the national .08 BAC standard are just a few 

of the major policy initiatives MADD has championed to help cut drunk driving deaths in half 

since 1980. 

MADD is committed to a research and data driven agenda. I would like to call your attention to 

a report released earlier this year from the National Academy of Sciences (NAS) which states 

"Alcohol-impaired driving remains the deadliest and costliest danger on U.S. roads today. Every 
34 


35235.018

day in the United States, 29 people die in an alcohol-impaired driving crash-one death every 49 

minutes-making it a persistent public health and safety problem." 

The Insurance Institute for Highway Safety (IIHS) reports that "Out of all drugs, alcohol is still 

the biggest threat on the roads (IIHS Status Report, June 22, 2017). IIHS states that "the battle 

against alcohol-impaired driving isn't won" and that "states and localities should keep 

channeling resources into proven countermeasures to deter impaired driving such as sobriety 

checkpoints." 

The NAS and IIHS reports are important because recent headlines would lead you to believe that 

drug impaired driving has overtaken drunk driving in terms of highway deaths. This is not true. 

The truth is that we do not know how many people are killed each year due to drug impaired 

driving. There are two major obstacles to determining the scope of the problem. First, we lack 

impairment standards for drugs. According to the 2013-2014 National Roadside Survey, 

marijuana is the second most commonly found impairing drug after alcohol. Yet marijuana has 

no impairment equivalent to .08 for alcohol. For prescription drugs, there also are no impairment 

levels for drugs legally prescribed by ones doctor. 

In addition to impairment, most states and localities do not have standard testing to determine if 

drivers involved in fatal crashes were impaired by drugs. This means we do not have a good 

estimate on how many people are actually killed by drug impaired drivers. 
35 


35235.019

There is a key difference between 'drug presence' and 'drug impairment.' MADD believes that 

drug presence is sometimes being used as a way to suggest drug impairment- when this is not 

the case. Imagine if"alcohol presence" implied "alcohol impairment." Currently it is possible to 

ascertain whether a drug is present in a driver's system, but showing the role of drugs as causal 

factors in crashes has not yet been achieved. 

Other than alcohol, marijuana is the drug that is most frequently detected in drivers' systems 

after a vehicle crash. The National Highway Traffic Safety Administration's (NHTSA) website 

currently states that "it is still unclear the extent to which [marijuana] contributes to the 

occurrence of vehicle crashes. Some studies have attempted to estimate the risk of driving after 

marijuana use, but these remain inconclusive in terms of predicting real-world crash risk." 

(NHTSA website, July 2018) 

MADD firmly stands behind the need to conduct robust research to determine drug impairment, 

and efforts to educate the public on the dangers of impaired driving. 

The Campaign to Eliminate Drunk Driving 

With alcohol impairment, we know what works. MAD D's Campaign to Eliminate Drunk 

Driving began in 2006 and has created a national blueprint to eliminate drunk driving in our 

country. The Campaign is based on a proven strategy and supports law enforcement, all offender 

ignition interlock laws, advanced vehicle technology, and asks the public to help us support these 
36 


35235.020

initiatives. Congress has fully endorsed the Campaign by funding its initiatives as part of both 

MAP-21 and the FAST Act. 

Since 2006, MADD has successfully advocated in 3 2 states plus the District of Columbia for all 

offender ignition interlock laws. The Centers for Disease Control and Prevention has compiled 

over 15 peer-reviewed studies that show interlocks reduce DUI recidivism, and several recent 

national studies show that all-offender interlock laws reduce drunk driving deaths. Thanks to 

these state laws, over 176 million Americans are protected by all-offender ignition interlock 

laws. 

Congress has continued to fund twice annual high visibility law enforcement campaigns, now 

known as Drive Sober or Get Pulled Over. NHTSA estimates that states which conduct sobriety 

checkpoints in conjunction with high visibility advertisements have an almost 20 percent 

reduction in DUI deaths. 

Finally, Congress authorized and funded the Driver Alcohol Detection System for Safety 

program, or DADSS. DADSS is a public-private partnership that seeks to create a passive, 

reliable, relatively inexpensive and publicly-accepted in-vehicle alcohol detection technology 

that would prevent a drunk driver from driving a vehicle. lUIS estimates that DADSS has the 

potential to save 7,000 lives a year. 

The concept for DADSS emerged from a 2006 MADD conference in New Mexico, and work 

began in 2008 with equal support from NHTSA and auto manufacturers. Since that time, 
37 


35235.021

technology development has advanced and a limited on-road test program is in place. The bulk 

of the program funding now comes from government sources. 

Needless to say, as an organization that represents the victims of drunk driving, we are impatient 

to see successful completion of this program. In this regard, we support the language in the June 

12, 2018 House Report 115-750 from the Committee on Appropriations, which states that "The 

Committee encourages NHTSA and its program partners to work diligently toward making the 

technology ready for vehicle integration by the end of the FAST Act authorization in fiscal year 

2020." We have great faith and confidence that our friends in the auto industry recognize the 

value of this program and the need to make it available to their customers as soon as possible to 

help save many thousands of lives. 

Recommendations to Move Forward 

Mr. Chairman, MADD believes that the best way to move forward on drug impaired driving is to 

do more on drunk driving, and specifically to increase impaired driving enforcement. MADD 

has long supported our heroes in law enforcement because we know that they are the men and 

women who actually get drunk and drugged drivers off the roads. Law enforcement is under 

enormous pressure and nationwide arrests are down. This is a trend that must be reversed and 

this is an area we encourage this committee to further explore. 
38 


35235.022

We must encourage law enforcement agencies all across the country to make traffic enforcement 

a priority. Sobriety checkpoints and saturation patrols catch and deter drunk and drugged 

drivers. 

We also support proper training for law enforcement that helps them detect drugged drivers. 

Every law enforcement officer should receive Standardized Field Sobriety Testing (SFST) 

training. This is the basic roadside test that police use to help determine impairment. Next, the 

Advanced Roadside Impaired Driving Enforcement (ARID E) training provides an additional 

level of training to help detect drug impairment. Finally, we support the Drug Recognition 

Expert (ORE) program which is an intensive training course that gives officers the knowledge to 

identify drug impairment more definitively and provide expert testimony in a court of law. 

In addition to law enforcement training, prosecutors need to know best practices to obtain 

drugged driving convictions. We support the Traffic Safety Resource Prosecutors (TSRP) who 

help train prosecutors in order to get drunk and drugged driving convictions. 

Research and Data 

In the short term, our focus must be on providing law enforcement with the necessary resources 

to get drunk and drugged drivers off the road. In the mid to long term, we need to focus on 

conducting further research and improving data to understand the scope of the drugged driving 

problem and measure the level of impairment associated with different amounts of drugs. 
39 


35235.023

One important piece of research that we urge Congress to reinstate and fully fund is the National 

Roadside Survey (NRS) which has been conducted for the last 45 years by NHTSA and/or the 

IIHS. The National Institutes of Health also supported the last two NRS surveys. This study is 

conducted roughly every ten years and the last roadside survey was conducted in 2013-2014. 

This is not a sobriety checkpoint. Drivers are paid to voluntarily participate. If they are found to 

be impaired, as participants of the survey they are not arrested but rather safety escorted home. 

This is a critical tool that gives policy makers important information about drivers who are using 

alcohol and drugs and then driving on our roadways. 

The NRS is critical to the highway safety community as we try to better understand drunk and 

drug impaired driving. In fact, it is one of the few data points available to give us a sense of 

what is really happening on the roads in terms of presence. The 2013-2014 NRS found that there 

has been a large decrease in the percentage of drivers who were alcohol positive, from 35.9 

percent in 1973 to 8.3 percent in 2013-2014. For BrACs of .08 and higher, there was a decrease 

from 7.5 percent in 1973 to 1.5 percent in 2013-2014, revealing an impressive 80 percent 

reduction in the percentage of alcohol-impaired drivers on the road on weekend nights. 

In contrast, THC was the most widely found drug and the prevalence increased from 8.6 percent 

in 2007 to 12.6 percent in 2014. This can be attributed to the widely changing landscape of 

marijuana legalization and medical marijuana legalization. It should be emphasized that the 

survey identifies only the presence of drugs and not impairment. 
40 


35235.024

Congress has prohibited funding for the NRS as part of the annual appropriations process. We 

have been told that this is due to privacy concerns. These concerns are unfounded as again the 

survey is completely voluntary and the data is entirely anonymous. 

The information from the roadside survey is critical to tracking the prevalence of drug presence 

among drivers, and we urge the committee to work with your colleagues to restore funding for 

the NRS. 

With the prevalence of marijuana legalization, both recreational and medicinal, it is critical that 

more work be done to understand impairment. We agree with a recent AAA study which states a 

.08 equivalent may not be possible with marijuana, but we still must better understand how 

marijuana impairment influences driving behaviors. For example, how long should someone 

wait after using marijuana before driving? And how does this vary between edibles and 

smoking? We need answers to these questions in order to make good policy. 

In addition to impairment, we encourage more testing to determine the presence and amounts of 

drugs among drivers in crashes. Most states and localities do not have standard testing to 

determine if drivers involved in fatal crashes were impaired by drugs. This means we do not 

have a good estimate on how many deaths occur in crashes of drivers with drugs in their systems 

or who arc impaired. 
41 


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Closing 

In closing, I encourage the Congress to look at near term solutions to stop recent increases in 

traffic fatalities. The National Academy of Sciences report makes clear that alcohol is the 

leading killer on our roadways and therefore drunk driving should be a major focus in crash 

prevention. The good news is that doing more to prevent drunk driving will result in fewer 

drugged driving deaths, too. 

Law enforcement is our best defense against drunk and drugged drivers. We urge the committee 

to work with law enforcement leaders to make sure that traffic enforcement is a priority. In 

addition, proper training such as SFST, ARIDE, and DRE are important tools police need to 

detect driver impairment, make arrests, and ultimately convict. 

Finally, it is critical that we have the research and data needed to better understand the problem 

of drugged driving. Congress can start by reinstating the National Roadside Survey. In addition, 

we must look at ways to identifY drug impairment, especially with regard to marijuana, in order 

to make better policy recommendations to the public. 

Mr. Chairman, I'm here because my son Dustin was killed by a drunk and drugged driver. It is 

my hope that the recommendations I am making on behalf of MADD will help to make progress 

on drunk driving and drugged driving and prevent others from the same tragedy that has 

devastated my family. 
42 


35235.026

Thank you again for the opportunity to testify before your committee. I am happy to answer any 

questions you might have. 
43 

Mr. LATTA. And thank you very much for your testimony today. 

And on behalf of the committee and the subcommittee we mourn 

your loss, because what we are here for is to make sure that other 

families don’t suffer the same loss that you have suffered, the loss 

of your son. So we appreciate your testimony today. 

Ms. Holmes, you are recognized for 5 minutes. 

STATEMENT OF ERIN HOLMES 

Ms. HOLMES. Thank you. 

Good afternoon, Chairman Latta, Ranking Member Schakowsky, 

and distinguished members of the subcommittee. Thank you for the 

opportunity to testify on the issue of drug-impaired driving. 

My name is Erin Holmes, and I am the Director of Traffic Safety 

at the Foundation for Advancing Alcohol Responsibility. Responsibility.org is a national not-for-profit organization and a leader in 

the fight to eliminate drunk driving and underage drinking. We are 

funded by leading distilled spirits companies, including Bacardi 

U.S.A., Beam Suntory, Brown-Forman, Constellation Brands, 

DIAGEO, Edrington, Mast-Jagermeister US, and Pernod Ricard 

USA. 

I would first like to begin by expressing my gratitude. Leadership is needed to address impaired driving in all of its forms, and 

I applaud the committee for recognizing the seriousness of this 

problem and the need to push for solutions to save lives. 

I also would like to acknowledge the efforts of the National Highway Traffic Safety Administration under the leadership of Deputy 

Administrator Heidi King. NHTSA has made drug-impaired driving 

a priority and is actively engaged in identifying countermeasures 

that work, furthering research, and increasing public awareness. 

While not a new issue, drug-impaired driving has come into 

greater focus in recent years due to the increasing number of states 

that have legalized marijuana and the spread of the opioid and heroin epidemic. 

Let me be clear: Drug-impaired driving is a serious public safety 

concern. In 2016, the most recent year for which we have data 

available, drugs were present in 43.6 percent of fatally injured 

drivers with a known drug test result. 

Further complicating the issue is the realization that it is not uncommon for drivers to have more than one substance in their system. Research has continually shown that drugs used in combination or with alcohol can produce greater impairment than substances used on their own. In 2016, 50.5 percent of fatally injured 

drug-positive drivers were positive for two or more drugs, and 40.7 

percent were found to have alcohol in their system as well. 

Unfortunately, polysubstance-impaired drivers are often not 

identified if they have a blood alcohol concentration above the illegal limit of .08, which then, of course, has implications for supervision and treatment decisions. 

So what can be done to address this problem? To effectively reduce drug-impaired driving and save lives, a comprehensive approach must be employed. Drug-impaired driving is more complex 

than alcohol-impaired driving, and we have heard some of those explanations here already today as to why that is so. Therefore, different policy approaches are needed to address certain aspects of 

44 

the problem. However, it is constructive to examine the policies 

and programs that have been effective in reducing alcohol-impaired 

driving and replicate these tactics when feasible. Some examples 

may include administrative license suspension, zero-tolerance laws 

for individuals under 21, and enhanced penalties for polysubstance 

use. 

I encourage Congress to take a multifaceted approach that involves a combination of education, policy, and enforcement initiatives, which are outlined in detail in my written submission. 

First and foremost, ongoing support and funding is needed to increase the number of law enforcement officers trained in Advanced 

Roadside Impaired Driving Enforcement, or ARIDE, and certified 

as drug recognition experts. Understanding that more resources 

are needed at the state level to accomplish this goal, responsibility.org partnered with the Governors Highway Safety Association to offer grants, which is now in its third year. Since that 

began, that program has resulted in more than 1,500 officers receiving drug-impaired-driving training in 13 different states. 

We also recommend supporting NHTSA in expediting oral fluid 

testing research and exploring the creation of minimum standards 

for these devices, like with breath testing or ignition interlocks. 

Oral fluid screening devices test for the presence of the most common categories of drugs. They are quick and easy to use and minimally invasive. These devices could be another tool for law enforcement to use as part of a DUI investigation. 

But identification of impaired drivers is only the first step. To 

improve outcomes, assessment must guide decisionmaking in the 

justice system. The screening and assessment of impaired drivers, 

whether drunk, drugged, or polyusers, for both substance use and 

mental health disorders is imperative to determine individual risk 

level and treatment needs. Congress should continue to support 

and make appropriations for assessment and treatment interventions and evidence-based criminal justice programs, such as DUI 

and treatment courts. 

Other important recommendations to consider include supporting 

the creation of national minimum standards for toxicological investigations, allocating additional highway safety funds to improve the 

capabilities of state labs, monitoring NHTSA’s progress in creating 

large-scale education campaigns and providing appropriations to 

expand those should they be deemed effective, continuing to invest 

in research initiatives to better understand drug impairment and 

identify effective countermeasures. 

Congress, NHTSA, state highway safety offices, and traffic safety 

organizations must continue to work collaboratively to prevent the 

occurrence of this behavior, improve the administration of justice, 

and further knowledge in the field. 

Thank you so much, and we look forward to working collaboratively with you on these issues. 

[The prepared statement of Ms. Holmes follows:] 

45 


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FOUNDATION FOR 

ADVANCING ALCOHOL 

RESPONSIBILITY 

Testimony of Erin Holmes 

on behalf of 

The Foundation for Advancing Alcohol Responsibility 

Before the 

Subcommittee on Digital Commerce and Consumer Protection 

of the 

House Energy and Commerce Committee 

Hearing on 

"Examining Drug-Impaired Driving" 

July 11, 2018 

Good afternoon distinguished members of the committee. Thank you for the opportunity to testify on the 

issue of drug-impaired driving. My name is Erin Holmes and I am the Director of Traffic Safety at the 

Foundation for Advancing Alcohol Responsibility (Responsibility.org). Responsibility.org is a national notfor-profit organization and a leader in the fight to eliminate drunk driving and underage drinking. We are 

funded by the following distilled spirits companies: Bacardi U.S.A., Inc.; Beam Suntory; Brown-Forman; 

Constellation Brands, Inc.; DIAGEO; Edrington; Mast-Jagermeister US, Inc.; and Pernod Ricard USA. For 27 

years, Responsibility.org has transformed countless lives through programs that bring individuals, families, 

and communities together to guide a lifetime of conversation around alcohol responsibility and by offering 

proven strategies to stop impaired driving. To find out more, please visit ~ww.responsibility.org 

Prior to joining Responsibility.org in 2014, I was a Research Scientist at the Traffic Injury Research 

Foundation (TIRF). During my tenure at TIRF, I published more than 40 reports, evaluations, and articles 

and delivered in excess of 50 presentations internationally on alcohol and drug-impaired driving, 

criminal justice system improvements, alcohol monitoring technologies, risk assessment, and drug 

policy. My complete curriculum vitae is enclosed with this testimony. 

The issue of drug-impaired driving 

Drug-impaired driving is the operation of a motor vehicle while under the influence of, or impaired by, 

any substance with psychoactive properties (including illicit substances, prescription medications, overthe-counter medications). When ingested, drugs can impair driver performance, particularly when taken 

in combination with alcohol or other drugs. This preventable behavior represents a significant threat to 

public safety. 
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While not a new issue, drug-impaired driving has come into greater focus in recent years due to the 

increasing number of states' that have legalized marijuana for medicinal and/or recreational purposes 

and the spread of the opioid and heroin epidemic through large swaths of the country has increased 

concerns about individuals driving high. Nearly 92 million adults in the United States (roughly 38% of the 

population), reported that they took a legally prescribed opioid in 2015.2 Research has shown that 21-

29% of patients prescribed opioids for chronic pain misuse them and between 8% and 12% will develop 

an opioid use disorder. In 2016 alone, 42,000 deaths were attributed to opioid overdoses. This 

translates to roughly 115 deaths every single day.3 Several high-profile incidents of overdoses behind 

the wheel, often with children in the vehicle, have become emblematic of the seriousness of this issue.' 

While the true magnitude and characteristics of the drug-impaired driving problem are not known due 

to several significant data limitations', the statistics that are available reveal that this issue is in need of 

urgent attention. In 2016, the most recent year for which data are available, the National Highway 

Traffic Safety Administration (NHTSA) Fatality Analysis Reporting System (FARS) found that drugs were 

present in 43.6% of fatally-injured drivers with a known drug test result. This represents a substantial 

increase from 2005 when 27.8% of fatally-injured drivers tested positive (NHTSA, 2010; FARS, 2015). As 

in previous years, in 2016 marijuana was the most commonly found drug in the systems of drug-positive 

fatally-injured drivers. While 41.1% of these individuals tested positive for some form of marijuana, 

19.7% of drug-positive drivers were found to have opioids in their system. 

In addition to fatality data, results from NHTSA's National Roadside Survey (NRS) are also instructive in 

measuring the extent of drug-impaired driving in this country. In 2013-2014, NRS findings revealed that 

22.4% of weekday day and 22.5% of weekend night-time drivers tested positive for illegal, prescription, 

or over-the-counter medications.' (Berning et al., 2015). The drug that has shown the largest increase in 

weekend night-time prevalence is marijuana. In the 2007 NRS, 8.6% of weekend night-time drivers 

tested positive for the main psychoactive ingredient in marijuana, Delta-9 tetrahydrocannabinol (THC). 

This number increased to 12.6% in the 2013-2014 NRS. That is a 48% increase in less than seven years. 

Fewer drivers were found to have opioids in their system with 5.5% of weekday day and 4.7% of 

weekend night-time drivers testing positive.' 

1 Currently, 30 states have passed medical marijuana laws and nine states (AK, CA, CO, MA, ME, NV, OR, VT, WA) and DC have 

legalized recreational marijuana. 

2 Han, B., Compton, W .M, Blanca, C., eta!. (2017). Prescription opioid use, misuse, and use disorders in U.S. Adults: 2015 

National Survey on Drug Use and Health. Annals of Internal Medicine, 167(5}, 293-301. 

3 National Institute of Drug Abuse. (2018). Opioid overdose crisis. Washington, DC: Author. https://www.drugabuse.gov/drugsabuse/ opioids/opioid-overdose-crisis 

4 See Washington Post coverage of several of these cases. 

5 For an in-depth discussion of the limitations of FARS data including variability in testing rates, lack of standardization in testing 

protocols and laboratory cutoffs, and inability to infer impairment from drug presence alone, please refer to: Berning, A., & 

Smither, D.O. (2014). Understanding the Limitations of Drug Test Information, Reporting, and TesVng Practices in Fatal Crashes. 

DOT HS 812 072. Washington, DC: National Highway Traffic Safety Administration. https://crashstats.nhtsa.dot.gov/Api/ 

Public/ViewPublication/812072 

6 Berning, A., Compton, R., & Wochinger, K. (2015). Results a/the 2013-2014 National Roadside Survey af Alcohol and Drug Use 

by Drivers. Traffic Safety Facts Research Nate. DOT HS 812 118. washington, DC: NHTSA. 

7 Kelley-Baker, T., Berning, A., Ramirez, A., et al. (2017). 2013-2014 National Roadside Study of Alcohol and Drug Use by Drivers: 

Drug Results. DOT HS 812 411. Washington, DC: NHTSA. 
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Concerns regarding polysubstance use 

Further complicating the drug-impaired driving issue is the realization that it is not uncommon for 

drivers to take several impairing substances at the same time. According to NHTSA, while many 

individual substances taken by themselves may not impair driving sufficiently to raise crash risk, when 

taken with other substances the effects may be additive or synergistic and produce an increased risk of 

crash involvement.'-' Research has continually shown that drugs used in combination or with alcohol 

produce greater impairment than substances used on their own.10 The combination of alcohol and 

marijuana is particularly risky as it can dramatically impair driving performance11 and recent simulator 

research has shown that the use of alcohol in conjunction with marijuana can produce significantly 

higher blood concentrations of THC than marijuana use alone." 

The increased level of impairment and crash risk associated with polysubstance-impaired driving is 

concerning as is the rate at which this behavior appears to be occurring. According to FARS data, in 

2016, 50.5% of fatally-injured drug-positive drivers were positive for two or more drugs and 40.7% were 

found to have alcohol in their system. New data released by the Washington Traffic Safety Commission 

identifies polysubstance impairment as the most common type of impairment found among drivers 

involved in fatal crashes.13 In fact, among drivers in fatal crashes between 2008 and 2016 that tested 

positive for alcohol or drugs, 44% tested positive for two or more substances with alcohol and THC being 

the most common combination. 

Unfortunately, the prevalence of polysubstance-impaired driving is inevitably underreported. While the 

majority of law enforcement officers are trained to identify drivers who are impaired by alcohol, many 

officers are not trained to identify the signs and symptoms of drug-impairment. Moreover, it is easier for 

law enforcement to make an arrest and obtain a blood alcohol concentration (BAC) level from either a 

breath or blood sample than it is to complete an investigation for drug-impaired driving. The latter often 

requires an evaluation by a Drug Recognition Expert (DRE), a law enforcement officer with specialized 

training, who may not be readily available. Blood tests are also needed to confirm the presence of drugs 

in a suspect's system and due to delays in obtaining this sample, test results do not accurately reflect 

the concentration levels at the time of driving on account of the rapid metabolization of these 

substances. 

If an officer observes impairment and can detect a BAC above the legal limit of .08, only DUI evidence 

and charges will likely be pursued. It is only when alcohol is ruled out as the cause of impairment or if 

the impairment is not consistent with the driver's BAC level that the use of drugs is explored. The 

a: Compton, R., Vegega, M., & Smither, D. (2009) Drug-Impaired Driving: Understanding The Problem & Ways to Reduce It: A 

Report to Congress. Washington, D.C.: NHTSA. 

9 Romano, E., Torres-Saavedra, P., Voas, R.B., eta!. (2014}. Drugs and alcohol: Their relative crash risk. Journal a/Studies on 

Alcohol ond Drugs, 75, 56-64. 

10 Schulze, H., Schumacher, M., Urmeew, R., et al. (2012}. DRUID Final Report: Work Performed, Main Results and 

Recommendations. Bergisch Glad bach, Federal Republic of Germany: Federal Highway Research Institute (BASt}. 

11 Ramaekers, J., Robbe, H., & O'Hanlon, J. (2000). Marijuana, alcohol and actual driving performance. Human 

PsychojJharmacalogy: Clinical and Experimental, 15, 551-558. 

12 Hartman, R.L., Brown, T.L., Milavetz, G. et al. (2015}. Controlled cannabis vaporizer administration: Blood and plasma 

cannabinoids with and without alcohol. Clinical Chemistry, 61, 850-869. 

13 Washington Traffic Safety Commission. {2018). Marijuana Use, Alcohol Use, and Driving in Washington State: Emerging Issues 

with Poly-Drug Use on Washington Roadways. Olympia: Author. 
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rationale is that testing for alcohol only saves both time and money.14 In fact, in some states there are 

policies in place that prevent labs for testing for chemical samples for the presence of drugs when a BAC 

is above .08 or .10 unless a request for additional testing is made. Therefore, DUI is the only crime 

where an investigation ceases once minimal evidence is obtained. 

Several oral fluid pilots underscore the importance of testing beyond alcohol. In a study conducted in 

Miami-Dade County, 39% of drivers who were found to have a BAC above .08 also tested positive for the 

presence of drugs.15 In another pilot in Dane County, WI nearly 40% of the subjects with BACs exceeding 

.10 screened positive for one or more drug categories in both oral fluid and blood.16 1n a real-world 

setting, the vast majority of these individuals would be identified as merely alcohol-impaired drivers. 

One might question why it is necessary to identify drivers who use drugs in addition to alcohol if they 

can be prosecuted for DUI. The end result of current practice is that many drug-impaired drivers escape 

detection and the magnitude of the drugged driving problem is not accurately captured. More 

importantly, failure to identify drug use can hinder the identification of drug dependency and miss an 

opportunity to make informed decisions later in the criminal justice process. It is of vital importance for 

practitioners, particularly in community corrections and treatment, to have as much information as 

possible to make the most appropriate supervision and treatment decisions. The failure to test impaired 

drivers for drugs misses an opportunity to identify and address an underlying cause of impaired driving 

behavior and could result in recidivismY 

How to address the problem 

To effectively reduce drug-impaired driving and save lives, a comprehensive approach must be 

employed. The problem is multi-faceted and, as previously noted, is frequently not limited to the use of 

a single impairing substance. 

Lessons learned. Impaired driving comes in many forms. Alcohol, drug, and polysubstance-impaired 

driving all present a significant traffic safety threat. For more than three decades, a tremendous amount 

of work has been done to reduce alcohol-impaired driving and progress has been achieved as a result. 

Since 1982, there has been a long-term downward trend in alcohol-impaired driving fatalities. In the last 

36 years, the number has been reduced by 50% and in the last decade, there has been a 34% decline. In 

2016, alcohol-impaired driving fatalities accounted for 28% of all motor vehicle fatalities, the lowest 

percentage since NHTSA began reporting alcohol data. More than 10,000 lives continue to be lost 

annually which is completely unacceptable but it is important to recognize that the declines that have 

been achieved and the lessons that have been learned in recent decades can inform decisions on how to 

address impaired driving as a whole. Decreases in fatalities can be attributable to the changing of 

societal norms, increased enforcement, and more strategic and appropriate use of sanctions and 

14 Government Accountability Office. (2015). Drug-Impaired Driving: Additional Support Needed for Public Awareness Initiatives. 

Washington, DC: United States Government Accountability Office. 

15 Logan, B., Mohr, A., & Talpins1 5. {2014). Detection and prevalence of drug use in arrested drivers using the Drager Drug Test 

SOOO and Affiniton DrugWipe oral fluid drug screening devices. Journal of Analytical Toxicology: doi:10.1093/jat/bkuOSO. 16 Edwards, L., Smith, K., & Savage, T. (2017). Drugged driving in Wisconsin: Oral fluid versus blood. Journal af Analytical 

Toxicology, 41(6), S23·S29. 

17 Talpins, 5., & Rogers, P. (2017). Overcoming the plateau: Reducing impaired driving by addressing drug-impaired drivers. 

Global Journal af Addiction & Rehabilitation Medicine, 1(4), DOl: 10.19080/GJARM.2017.01.SSSS69. 
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treatment. To continue to achieve progress, improved and expanded implementation of effective 

programs and interventions (e.g., high visibility enforcement, ignition interlocks, DUI Courts, etc.) must 

continue. 

Drug-impaired driving in many ways is a more complex problem than alcohol-impaired driving. Many of 

the policies and countermeasures that are effective in addressing DUI such asperse legal limits, ignition 

interlocks, and emerging technologies like the Driver Alcohol Detection System for Safety (DADSS) will 

not necessarily be viable options to reduce the occurrence driving under the influence of drugs. 

However, while recognizing that different policy approaches are needed to address certain aspects of 

drug-impaired driving, many of the strategies that have been utilized to reduce alcohol-impaired driving 

fatalities and recidivism can be translated and employed (e.g., zero tolerance laws for individuals under 

the age of 21, administrative license suspension/revocation (ALS/ALR) 18, enhanced penalties, etc.). In 

other words, it is constructive to examine the policies and programs that have been effective and 

replicate these tactics when feasible to do so or fold drug-impaired driving into existing DUI 

enforcement and education efforts. 

Leadership. In order to address this issue, ongoing leadership is also required at both the national and 

state level. Congress assumed such a role in 2015 when drug-impaired driving was identified as a priority 

in the Fixing America's Surface Transportation (FAST) Act. The legislation tasked NHTSA with studying 

the relationship between marijuana use and driving impairment and to identify effective methods to 

detect marijuana-impaired drivers. Also in response to a requirement in Section 4008, the current state 

of knowledge on marijuana-impaired driving was summarized and provided to Congress in a 2017 

report.19 The FAST Act also directed NHTSA to create a national public awareness campaign to educate 

the public on the dangers of driving impaired by drugs. At the end of January 2018, NHTSA's Deputy 

Administrator Heidi King announced that drugged driving will become a top priority for the agency. In 

March, NHTSA brought together stakeholders in a Call to Action'" to develop and adopt a collaborative 

and coordinated strategy to "set a course of action and take measurable steps to address the nation's 

drugged driving problem." NHTSA's engagement and leadership on this issue should be applauded and 

will be vital in ensuring that the issue is addressed on multiple fronts and done so in a relatively 

consistent manner. 

At the state level, the Governors Highway Safety Association (GHSA) has been instrumental in providing 

states with guidance and identifying research, policy, program, and education needs to combat this 

problem. Since 2015, GHSA with support from Responsibility.org, has released three reports21 that 

synthesize the current state of knowledge, drugged driving laws, and intervention strategies. An 

advisory panel consisting of national experts weighed-in to develop practical recommendations that 

policymakers, state highway safety offices, and practitioners can utilize to prevent and reduce drug18 For more information on this policy approach, refer to Ta!pins, 5., et aL, {2014). License revocation as a tool for combating 

drugged driving. Impaired Driving Update, 18(2), 29-33. 

19 Compton, R. (2017). Marijuana~lmpaired Driving: A Rep art to Congress. DOT HS 812 440. Washington, D.C.: National Highway 

Traffic Safety Administration. 

20 Press release: https://www.nhtsa.gov/press-releases/nhtsa-launches-drug-impaired-driving-initiative-and-announces-march15-summit 

21 These reports include the original Drugged Driving: A Guide for States {2015), the 2017 updated report. and the enclosed 

Drug-Impaired Driving: Marijuana and Opioids Raise Critical Issues for States {2018). 
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impaired driving. These recommendations, several of which are highlighted below, provide a road map 

for action. 

Members of Congress, state legislators, and highway safety officials should continue to lead and identify 

ways to support and fund impaired driving policies and training while simultaneously seeking to close 

known barriers and knowledge gaps through system improvements and research. 

Solutions 

To reduce drug-impaired driving, policymakers are encouraged to take a broad and multi-faceted 

approach that involves a combination of education, policy, and enforcement initiatives. This includes 

expanding training for law enforcement, promoting the testing and use of new technologies, improving 

testing and data collection, focusing on high-risk individuals by emphasizing assessment and treatment 

in conjunction with accountability, and increasing public education through awareness campaigns. In 

addition, investment in research to better understand drug impairment and identify effective drugimpaired driving countermeasures should also be a priority. 

1. Enforcement -law enforcement officers first began developing methods to identify drug impaired 

drivers in the 1970s, when the Los Angeles Police Department established the Drug Evaluation and 

Classification (DEC) Program." The purpose of the program is to train officers to become Drug 

Recognition Experts (DREs), who are capable of identifying drug impairment. Officers are required to 

go through three phases of training totaling more than 150 hours along with field certification. The 

DEC program goes beyond the SFST training that most officers receive. DREs use a standardized 

protocol that allows them to determine whether a suspect is impaired, if that impairment is caused 

by drugs or can be attributed to a medical condition, and the category of drug(s) that are the cause 

of the impairment. 

Today, aliSO states, Canada, and the United Kingdom participate in the DEC program. But not every 

jurisdiction in the country has an officer trained as a DRE. Due to the level of commitment required 

to complete the training and the cost to train officers, it is not always a viable option for agencies 

that have limited staff and resources. In an effort to increase education and training among patrol 

officers more broadly, the Advanced Roadside Impaired Driving Enforcement (ARID E) program was 

created. ARIDE is designed to bridge the gap between SFST training and the DEC program in that it is 

16 hours of training that educates officers on how to identify the signs and symptoms of drug 

impairment. 

There is consensus within the traffic safety field that more officers need to be trained in ARIDE and 

certified as DREs. This was one of the priority recommendations identified in the GHSA reports. In 

2016, 773 ARIDE classes were held nationwide, training more than 13,500 officers, prosecutors, and 

toxicologists. As of the end of 2016, there were 8,277 certified DREs throughout the country with 

1,543 new officers trained that year.23 Understanding that more resources are needed at the state 

level to accomplish this goal, Responsibility.org has established a grant program with GHSA, now in 

22 Learn more about the DEC program: http://www.theiacp.org/Drug-Recognition-Expert-Section 

23 1nternational Association of Chiefs of Police. {2017). 2016 Annual Report of the JACP Drug Evaluation and Classification 

Program. Alexandria, VA: http://www.decp.org/wp·contentluploads/2018/03/2016·DECP-Annuai·Report.pdf 
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its third year, to provide funding to states to increase the number of officers trained to identify drug 

impairment. As a result of these grants, more than 1,500 officers in 13 states have received 

training." 

Recommendations for Congress: 

Ongoing support and funding is needed to increase the number of law enforcement officers 

trained in both ARIDE and the DEC program. In the recent Senate FY 2019 Transportation 

Housing and Urban Development appropriations, the Committee directed NHTSA to provide 

states with flexibility to use impaired driving countermeasures grant funding for both DRE and 

ARIDE training. An additional $5,000,000 appropriation was made to facilitate an increase in law 

enforcement training. Congress is encouraged to continue allocating funds to provide more 

training opportunities and to identify ways to make it easier for states to use impaired driving 

funds to address specific drug-impaired driving needs. 

Congress is also encouraged to make appropriations to provide additional training for 

prosecutors and judges to better educate them on drug-impaired driving issues. 

2. Technology (oral fluid screening)- the use of oral fluid screening devices to test for the presence of 

drugs at roadside or in a police station has the potential to assist law enforcement in identifying a 

larger number of drug-impaired drivers who would otherwise avoid detection. This practice would 

provide objective data to help establish probable cause and require an evidential chemical sample. It 

is recommended that this technology be utilized within the context of a broader impaired driving 

investigation similar to preliminary breath tests (e.g., observations while vehicle is in motion and 

during the traffic stop, clues on the standardized field sobriety tests, etc.). 

These devices offer many advantages over blood and urine testing as they are quick and easy to use, 

minimally invasive, have a short detection window (i.e., positive findings are indicative of recent as 

opposed to historical use), and provide a sample proximate to the time of driving.25 Multiple studies 

have found these devices to be reliable and valid including a formal evaluation done in the European 

Union that identified several devices with both sensitivity and specificity of more than 80%26 and a 

recent Canadian evaluation" that found sensitivity exceeded 80% for most drug categories 

(including cannabis) and specificity exceeded 90% for all drug categories. As a result of these 

findings, Canadian law enforcement agencies plan to move forward with the deployment of oral 

fluid testing once legalization occurs later this year. Other countries such as Australia and the United 

Kingdom have been using this roadside drug testing technology for years. 

24 Press release for 2018 grant announcement: https://www.ghsa.org/resources/news~releases/FAAR-Grants18. States that 

have received grant funds include FL, ID, MN, MT, NV, NY, IL(x2), Rl, TX, VT, WA, WV, and WI. 

25 Bosker, W., & Huestis, M. (2009). Oral fluid testing for drugs of abuse. Clinicol Chemistry, 55(11), 1910-1931; Moore, c., & 

Crouch, D. (2013). Oral fluid for the detection of drugs of abuse using immunoassay and LC-MS/MS. Bioanalysis, 5(12), 1555-

1569. 

"Schulze, H., Schumacher, M., Urmeew, R., et al. (2012). DRUID Final Report: Work Performed, Main Results and 

Recommendations. Bergisch Gladbach, Federal Republic of Germany: Federal Highway Research Institute (BASt). 

27 Beirness, D., & Smith, D. (2017). An assessment of oral fluid drug screening devices. Canadian Society of Forensic Science 

Journal, 50(2), 55-63. 
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Jurisdictions across the United States (including AL, CA, CO, FL, KS, Ml, OK, VT) have piloted various 

devices to assess their viability. These pilots have concluded that oral fluid devices provide good 

information to law enforcement regarding the presence of active drugs in drivers' systems. In 

addition to providing law enforcement with another investigative tool, oral fluid testing could 

facilitate the creation of and ALS/ALR system like the one that exists for alcohol because of the onsite nature of the results. Current testing mechanisms (e.g., blood and urine testing) make the 

establishment of this administrative process far more difficult to implement. 

Recommendations for Congress: 

NHTSA is currently researching the feasibility of incorporating on-site oral fluid devices in 

criminal justice processes. Given the pressing need to better identify drug-impaired drivers, 

Congress should support NHTSA in expediting this research and prioritize the creation of 

minimum standards for these devices (similar to what has been done for breath testing 

instruments and ignition interlocks). 

Congress should support the ongoing development and testing of new drug detection 

technologies (e.g., marijuana breathalyzers, transdermal devices). 28 

3. Increasing standardization of drug testing- one of the most significant challenges in collecting 

robust drug-impaired driving data is the lack of consistency in testing from one jurisdiction to 

another. Data is limited because some states test a very small percentage of fatally-injured drivers 

for the presence of drugs. Furthermore, laboratories using different test panels with varying cutoff 

levels. For example, some labs will have more sophisticated equipment and funding and, as a result, 

can test for a wider array of substances. Without improved testing it is difficult to increase the 

quality of data and subsequent analyses. For example, the inconsistent rate of drug testing and the 

lack of minimum standards that all labs can adhere to makes it difficult for FARS data to be used to 

compare states. It also makes it difficult to identify trends and generalize findings. 

Recommendations for Congress: 

Congress should support the creation of national minimum standards for toxicological 

investigations in motor vehicle crashes and drug-impaired driving cases. The National 

Transportation Safety Board (NTSB) put forth this recommendation in 2012 and suggested that 

NHTSA develop and disseminate such standards to improve consistency." Model standards 

have already been created by both the National Safety Council 30 and the Substance Abuse and 

Mental Health Services Administration (SAMHSA). NHTSA, in consultation with experts in the 

field of forensic toxicology should collaborate and reach consensus on what should constitute 

28 For more information about these emerging technologies, refer to Talpins, S.J Holmes, E., & Sa bet, K. (2017). Fingerprint 

sweat testing: A viable option for testing drugged drivers? Tennessee District Attorneys General Conference DUI News, 58, 4-5; 

Talpins, S., Holmes, E., Kelley-Baker, T., et al. (2017). Breath testing for cannabis: An emerging tool with great potential for law 

enforcement. Between the Lines, 25(2). 

"National Transportation Safety Board. (2012). Recommendations H-12·32 and 33 to NHTSA. Washington, DC: 

www.ntsb.gov/safety/safety-recs/ Recletters/H-12·032-033.pdf 

30 Logan, B., Lowrie, K., Turri, J. et aL {2013). Recommendations for toxicological investigation of drug-impaired driving and 

motor vehicle fatalities." Journal of Analytical Toxicology, doi:10.1093/jat/bkt0~9 and the 2018 update to these 

recommendations, 
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minimum drug testing standards. State officials should be involved in this process and be 

strongly encouraged to adopt and implement the testing protocols. 

Additional highway safety funds should be allocated to improve the quality of state labs. States 

should be afforded the flexibility to use said funds to hire additional lab staff and purchase lab 

instrumentation (such as liquid chromatography-tandem mass spectrometry (LC-MS/MS) to 

perform more advanced drug analysis). Improving the quality and abilities of laboratories has 

the added benefit of reducing backlog in DUI/DUID cases which is a common challenge 

encountered in many states. 

4. Targeting high-risk impaired drivers- to reduce impaired driving fatalities, it is imperative that 

efforts focus on individuals who pose the highest risk to recidivate. Within the context of drunk 

driving, these individuals are typically classified as offenders who drive with high blood alcohol 

concentrations (.15 or higher), and do so repeatedly as evidenced by multiple arrests. Highly 

resistant to long-term behavior change, these individuals require more intensive supervision, 

accountability, and treatment interventions tailored to their individual needs. To save lives, reduce 

recidivism, and stop the revolving door of the justice system, more must be done to identify and 

address the underlying causes of impaired driving behavior among both alcohol and drug-impaired 

drivers. Polysubstance-impaired drivers are likely to fit within this high-risk category as they are at 

an elevated crash risk due to their use of multiple impairing substances. 

To improve outcomes, screening and assessment must guide decision-making within the justice 

system. The screening and assessment of impaired drivers- whether drunk, drugged, or poly-users 

-is imperative to determine individual risk level and treatment needs. Moreover, this practice 

allows practitioners to triage and allocate resources to those who require greater intervention. 

Assessments should not be limited to the identification of substance use disorders. While the most 

obvious etiology of impaired driving is an alcohol and/or drug problem, many impaired drivers also 

suffer from one or more mental health disorders. In a study conducted by researchers at Cambridge 

Health Alliance, approximately 45% of repeat impaired drivers were found to have a lifetime major 

mental health disorder other than alcohol/drug abuse or dependency." Unfortunately, co-occurring 

disorders are often overlooked among this offender population and the failure to identify mental 

health issues misses an opportunity to employ a comprehensive approach to treatment and to 

address all underlying pathways to offending. Fortunately, assessment instruments are now 

available to assist practitioners in decision-making and facilitating recovery. Instruments such as the 

Computerized Assessment and Referral System (CARS) 32 and the Impaired Driver Assessment (IDA) 

are validated among an impaired driver population and are available free of cost to interested 

parties. 

Another high-risk group that could benefit from specific policies are young drivers. Motor vehicle 

crashes are the leading cause of death for U.S. teenagers and young drivers are at-risk of crash 

31 Shaffer, H., Nelson, 5., LaPlante, D., LaBrie, R., & Albanese, M. (2007). The epidemiology of psychiatric disorders among 

repeat DUI offenders accepting a treatment~sentencing option. Journal of Consulting and Clinical Psychology, 75(5), 795~804. 

32 Holmes, E. {2017). ComPuterized Assessment and Referral System: Implementation Process Evaluation. Arlington, VA: 

Responsibility.org. To learn more about CARS and download the instrument, visit: www.carstrainingcenter.org 
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involvement due to their relative inexperience behind the wheel. 33 The use of impairing substances 

(e.g., alcohol, marijuana and/or other drugs), puts them at heightened risk of being involved in a 

crash. Decades of research have shown that policies targeted at youth are effective in reducing 

crashes. For example, the 21 minimum legal drinking age law, graduated licensing laws, and zero 

tolerance policies for people under 21 who drive with any alcohol in their system have led to a 

nearly 80% reduction in alcohol-involved traffic fatalities among young drivers since 1982. In a 2009 

analysis, Fell et al. estimated that zero tolerance laws save 1591ives each year." The passage of zero 

tolerance laws for drugs, including marijuana, for drivers under the age of 21 could potentially save 

laws. This approach would apply a well-established and evidence-based policy and extend it to other 

illicit substances and send a strong message about the dangers of drug-impaired driving. 

Recommendations for Congress: 

Congress should continue to support and make appropriations for assessment and treatment 

interventions and associated evidence-based criminal justice programs such as treatment courts 

(e.g., DUI Courts). Investment in these practices can facilitate behavior change, long-term 

recovery, and reduce recidivism. 

Congress and state legislatures should support the establishment of zero tolerance laws for 

drivers under the age of 21 who drive with illicit or impairing drugs in their systems, creating 

parity with existing zero tolerance alcohol laws. 

5. Education efforts- to prevent impaired driving in all forms it is necessary to educate the public on 

the risks, illegality, and consequences of engaging in the behavior. Public education and advocacy 

initiatives can be credited with changing societal norms related to drunk driving and, subsequently, 

altering behavior. A similar preventive approach should be employed with drug-impaired driving as 

the public tends to have pervasive misperceptions about the behavior including: DUID is not a 

serious problem; driving high is a safer alternative to driving drunk; drug use (particularly marijuana 

use) does not adversely affect driving ability or, in some instances, may improve driving ability; 

driving high is not illegal; and law enforcement cannot detect individuals impaired by drugs. Recent 

roadside survey data from Washington state reveal that these attitudes are quite common for 

marijuana use and the majority of users (64%) who self-report driving within two hours of smoking 

feel as though their drug use did not make any difference in their driving.35 

Of particular concern are youth attitudes about marijuana-impaired driving. A 2017 study conducted 

by. Liberty Mutual insurance and Students Against Destructive Decisions (SADD) illustrates this point. 

In a survey of 2,800 high school students, 33% of respondents believed it was legal to drive under 

the influence of marijuana in states where recreational use has been legalized. Furthermore, only 

68% of teens said that driving under the influence of marijuana is dangerous, 27% thought it does 

33 Centers for Disease Control and Prevention. (2015). WebHbased Injury Statistics Query and Reporting System (WISQARS). 

34 Fell, J., Fisher, D., Voas, R., Blackman, K., & Tippetts, S. (2009). The impact of underage drinking laws on alcohol-related fatal 

crashes of young drivers. Alcohol Clinical and Experimental Research, 33(7), 1208-1219. 

35 Washington Traffic Safety Commission. (2018). Marijuana Use, Alcohol Use, and Driving in Washington State: Emerging Issues 

with Poly-Drug Use on Washington Roadways. Olympia: Author. 
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35235.037

not make someone a worse driver, and 22% admitted that this behavior was common practice 

among their peers. 

Recommendations for Congress: 

National campaigns are needed to dispel misperceptions, change attitudes, and hopefully, 

change behavior as a result. These campaigns should have clear messages that educate the 

public about the inherent dangers of drug-impaired driving. Several states including Colorado 

(Drive High, Get a DUI and The Cannabis Conversation), California (DU/ Doesn't Just Mean 

Booze), and Wisconsin (Dose of Reality) have developed and implemented well-received 

campaigns that can serve as examples. Congress is encouraged to monitor NHTSA's progress in 

creating largescale education campaigns and to provide appropriations to expand these public 

outreach efforts if deemed effective. 

Given the current opioid epidemic, there must be more education in the public health and 

medical fields. While prescription drugs contain labels that warn against operating heavy 

machinery and many physicians and pharmacists emphasize this information with patients, 

more can be done. Congress should encourage federal agencies including NHTSA, the White 

House Office on National Drug Control Policy (ONDCP), and the Federal Drug Administration 

(FDA) to explore opportunities to increase education about the dangers of driving after using 

prescription drugs. 

Additional policy and system improvements recommendations can be found in the accompanying GHSA 

report (see Hedlund, 2018) and Responsibility.org Policymakers Checklist. 

In summation, impaired driving in all its forms presents a significant threat to public safety and is an 

economic burden on society. In the climate of the opioid epidemic and post-legalization America, 

jurisdictions are facing the challenge of how to effectively address drug-impaired driving. Congress, 

NHTSA, state highway safety offices, traffic safety organizations, and practitioners must continue to 

work collaboratively and take a systems approach to prevent the occurrence of this behavior, improve 

the administration of justice, and further knowledge in the field. We look forward to engaging with 

these stakeholders in the coming months and applaud the leadership that continues to be exhibited at 

the Federal level. Collectively, we can reduce drug-impaired driving, decrease recidivism, and ultimately, 

save lives. 
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35235.038

Testimony of Erin Holmes, Director of Traffic Safety at Responsibility.org: 

Key Takeaways & Recommendations 

The drug and polysubstance-impaired driving problem. Drug-impaired driving is a serious public safety 

concern and poses a major threat on the nation's roadways. In 2016, the most recent year for which 

data are available, the National Highway Traffic Safety Administration (NHTSA) Fatality Analysis 

Reporting System (FARS) found that drugs were present in 43.6% of fatally-injured drivers with a known 

drug test result. 

Further complicating the issue is the realization that it is not uncommon for drivers to take several 

impairing substances at the same time. Research has continually shown that drugs used in combination 

or with alcohol produce greater impairment than substances used on their own. In 2016, 50.5% of 

fatally-injured drug-positive drivers were positive for two or more drugs and 40.7% were found to have 

alcohol in their system. Polysubstance-impaired drivers are often not identified if they have a blood 

alcohol concentration (BAC) above .08 which has implications for supervision and treatment. 

Solutions. To effectively reduce drug-impaired driving and save lives, a comprehensive approach must 

be employed. Drug-impaired driving is more complex than alcohol-impaired driving; therefore, different 

policy approaches are needed to address certain aspects of the problem. However, it is constructive to 

examine the policies and programs that have been effective in reducing alcohol-impaired driving and 

replicate these tactics when feasible to do so or fold drug-impaired driving into existing DUI 

enforcement and education efforts. 

Ongoing leadership is required at both the national and state level. NHTSA recently announced that 

drug-impaired driving will be a top agency priority. Their engagement will be vital in ensuring that the 

issue is addressed on multiple fronts and done so in a relatively consistent manner. Members of 

Congress, state legislators, and highway safety officials should continue to lead and identify ways to 

support and fund impaired driving policies and training while simultaneously seeking to close known 

barriers and knowledge gaps through system improvements and research. 

What can Congress do? Policymakers are encouraged to take a broad and multi-faceted approach that 

involves a combination of education, policy, and enforcement initiatives. Recommendations include: 

• Provide ongoing support and funding to increase the number of law enforcement officers 

trained in both ARIDE and the DEC program. 

Provide appropriations for prosecutor and judicial training to better educate them on drugimpaired driving issues. 

Support NHTSA in expediting oral fluid testing research and prioritize the creation of minimum 

standards for these devices (similar to what has been done for breath testing instruments and 

ignition interlocks). 

Support the ongoing development and testing of new drug detection technologies (e.g., 

marijuana breathalyzers, transdermal devices). 
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35235.039

Support the creation of national minimum standards for toxicological investigations in motor 

vehicle crashes and drug-impaired driving cases. 

Allocate additional highway safety funds to improve the quality of state labs. States should be 

afforded the flexibility to use said funds to hire additional lab staff and purchase lab 

instrumentation (such as liquid chromatography-tandem mass spectrometry (LC-MS/MS) to 

perform more advanced drug analysis). 

Continue to support and make appropriations for assessment and treatment interventions and 

associated evidence-based criminal justice programs such as treatment courts (e.g., DUI Courts). 

Support the establishment of zero tolerance laws for drivers under the age of 21 who drive with 

illicit/impairing drugs in their systems, creating parity with existing zero tolerance alcohol laws. 

Monitor NHTSA's progress in creating largescale drug-impaired driving education campaigns and 

provide appropriations to expand these public outreach efforts if deemed effective. 

Encourage federal agencies including NHTSA, the White House Office on National Drug Control 

Policy (ONDCP), and the Federal Drug Administration (FDA) to explore opportunities to increase 

education about the dangers of driving after using prescription drugs. 

Continue to invest in research initiatives to better understand drug impairment and identify 

effective drug-impaired driving countermeasures. 

Supporting materials: 

Hedlund, J. (2018). Drug-Impaired Driving: Marijuana and Opioids Raise Critical Issues for States. 

Washington, DC: Governors Highway Safety Association. 

Responsibility.org (2017). Driving Under the Influence af Drugs: A Checklist for Po/icymakers. 

Flannigan, J., Talpins, S., & Moore, C. (2017). Oral fluid testing for impaired driving enforcement. 

Police Chief Magazine, January issue, 58-63. 

Suggested additional reading: 

Hedlund, J. (2017). Drug-Impaired Driving: A Guide for States. Washington, DC: Governors 

Highway Safety Association. https://www.ghsa.org/sites/default/files/2017-

07 /GHSA DruggedDriving2017 FINAL revised.pdf 
58 

Mr. LATTA. Well, thank you very much. 

And we appreciate all your testimony given to the subcommittee 

today. 

And I just want to let members know that they did just call 

votes. So, if we could, I will try to get my first questions in first 

before we have to run down to vote. 

But if I could start, Ms. Holmes, with you, just following up on 

what you were talking about on what states are doing out there to 

address the drug-impaired driving, are there any Sstates that can 

be models for others? And why do you believe that some states are 

at the forefront in addressing this issue? 

Ms. HOLMES. I think there are a number of different things that 

are being done well, depending on the area. Each state has individual and unique challenges and can be constrained by their laws. 

I would look to Colorado as a leader and example on public education and information campaigns. I believe they have done a phenomenal job, and they have worked towards expanding their messaging. 

They were put in a difficult position when Amendment 64 became law back in 2012. They weren’t prepared and had to put together a campaign relatively quickly. But since that time, their 

‘‘Drive High, Get a DUI’’ campaign has expanded in its messaging, 

first from focusing and educating the public in Colorado that, 

while, yes, it is now legal to use marijuana, it is not legal to use 

and drive, because you can, in fact, get a DUI. 

They have also focused on increasing messaging around crash 

risk associated with marijuana-impaired driving. And they have 

also looked at different aspects of the problem, like consuming 

edibles and driving. And now they are implementing a new campaign called The Cannabis Conversation, where they reach out to 

communities of users. 

Other states, like Washington, have done a very good job with 

data collection. They have been able to go back and do a lot of analysis on fatally injured drivers to get a better sense of what the data 

is telling them: not only what percentage of fatally injured drivers 

over a lengthy period of time are testing positive for marijuana, but 

also who is testing positive for the active psychoactive component— 

that is the Delta-9-tetrahydrocannabinol—versus the inactive metabolites. They have also focused on being able to identify which 

drivers tested above or below their per se limit of 5 nanograms. 

I would also commend California for the work that they have 

done on laboratory testing and investing in lab capabilities. They 

have also looked to establish a blueprint to be able to guide decisionmaking in the future. 

What I would always encourage all states to do is to look at this 

issue irrespective of what challenges they are facing with drug policy and with drug use in their states. The sooner you can start to 

plan ahead, the better prepared you will be. And states that have 

not gone down that road or have not been extremely hard-hit by 

either legalization or by the opioid epidemic, they are in the best 

position to learn the lessons from other jurisdictions and implement them or plan for the future. 

Mr. LATTA. Thank you. 

59 

Ms. Harmon, given your unique perspective on this issue, just 

talking about California, from the local level, what are some of the 

day-to-day obstacles in combating drug-impaired driving that you 

have seen? 

Ms. HARMON. Certainly, I think one of the largest obstacles that 

we continue to have in California is the relationship that our public 

has with law enforcement. Law enforcement is key to dealing with 

drug-impaired driving. Their impairment models that they are 

using, we have published research that we believe that they are effective even with drugs like marijuana. 

The other issue is the resources that the system as a whole has 

in addressing the type of testing that really needs to be done at a 

comprehensive level. Almost every jurisdiction, with the exception 

of two, only tests drivers above a .08 percent. In the last few years, 

we have been able to convince coroners’ offices and medical examiner offices that marijuana or the active drug, THC, is an important drug to be testing. So we do now have our fatally injured drivers tested for marijuana. 

But the scope of testing that is done in our state is limited because of the resources that the laboratories have and the access 

they have in improving the technology, as well as the staffing resources that they need in order to deal with the problem. 

The other issue is that we are dealing with a vast number of 

drugs. Our five most prevalent drugs in our jurisdiction involve 

both illicit and prescription drugs. And the drugs are all tested 

slightly differently. And so you have to have state-of-the-art technology in order to effectively do that and to be able to test for all 

of the drugs in a timeframe that is reasonable. Because drugs 

break down not just in a person’s system but also in the samples. 

So if the samples are sitting for extended periods of time and not 

getting tested or only being screened and then at a later time being 

tested, you are affecting the quality of that evidence for a prosecution. 

Mr. LATTA. Well, thank you very much. 

And my time is about ready to expire. And, as I said, we can go 

run down and vote. Would that be all right? 

Ms. SCHAKOWSKY. Right now? 

Mr. LATTA. Right. We will recess? 

Ms. SCHAKOWSKY. OK. 

Mr. LATTA. Yep. And we will vote and come right back. 

Thank you. 

We will stand in recess. 

[Recess.] 

Mrs. WALTERS [presiding]. All right. We are going to reconvene 

with questions and I am going to recognize Ranking Member Schakowsky. 

Ms. SCHAKOWSKY. Thank you very much. 

So here we are again, and I appreciate your waiting. I know it’s 

kind of a drag, but that’s our schedule. So I wanted to start by asking or actually just saying to Ms. Sheehy-Church I just appreciate 

you so much and, certainly, my heart goes out to you and the fact 

that you have made this a mission of yours I think is so incredibly 

important. 

60 

Moms Against Drunk Driving, as you pointed out in your testimony, has really changed the face—we are not at zero, that’s for 

sure, but the 21 years old, the zero tolerance, the .08—those are 

really attributed to the kind of grassroots activism often of coming 

out of tragedy. 

So I just want to say that. I am so grateful to you. 

So I am just wondering, would actually going further and lowering the legal blood alcohol level help reduce deaths from drunk 

driving? Is that even on the table or realistic? 

Ms. SHEEHY-CHURCH. Well, obviously, heard from NTSB that 

they were recommending .05. But the reality is once the recommendation comes in they kind of walk away and leave us to do 

the work and others—advocacy groups—to do the work to try to go 

to you all to try to see if there is an appetite and a willingness to 

do that. 

We are not there yet, and I think if we stick to the campaign 

that we currently have right now, which is really supporting law 

enforcement, we will save more lives faster than taking a look at 

that down the road. 

Impairment is impairment, and when we look at someone who 

has been arrested or accused of a DUI the fact is they are impaired 

no matter what it is. 

So I think spending that time right now maybe down the road. 

But I think right now, more research is needed but, more importantly, we need to stop what’s happening on the roads. 

I hear a lot about the fatalities and the blood draws and everything on fatalities. We need to do something that’s in advance. We 

have got to stop something now. 

We need a silver bullet now, and right now the only thing we 

have now is law enforcement—their ability to be boots on the 

ground and make sure that we do something before tragedy occurs. 

Ms. SCHAKOWSKY. Thank you. 

Let me acknowledge, by the way, we have dueling hearings, 

which is why I was not here for most of your—I heard your testimony. But so let me apologize if I repeat things that have already 

been said. 

I am just wondering if I could ask any of you, what else should 

be done to help stop drunk or impaired driving that can be done 

at the federal level? 

Any suggestions for us? And can I start with Dr. DuPont? 

Dr. DUPONT. Yes, that was a point of my testimony. I gave a list 

of eight things that I thought were very important. 

Ms. SCHAKOWSKY. OK. I can go back to that, but maybe it bears 

repeating. 

Dr. DUPONT. No. No. We need data, I think, is the most important thing of the nature and extent of the problem, and I think as 

we have that, it drives everything else. 

So that’s the most important thing. For example, getting the 

FARS data—the fatally injured drivers—having all those drivers 

tested for drugs and alcohol and having—— 

Ms. SCHAKOWSKY. So not just drunk drivers over .08 that get 

tested for other—— 

Dr. DUPONT. Every fatally injured driver—— 

Ms. SCHAKOWSKY. Got it. 

61 

Dr. DUPONT [continuing]. Should be tested for drugs and alcohol. 

That’s what I am thinking, and that NHTSA can establish guidelines for how to do that. Right now, it’s hit or miss. One state will 

do one thing, another another. 

If NHTSA had a standard package—here’s what we recommend 

for testing for fatally injured drivers—that would be a very helpful 

thing to—for us to do, for example. 

The simple thing to me is encourage laws for under the age of 

21 to have zero tolerance. Marijuana is illegal in every state in the 

country under 21. 

If a 20-year-old driver has alcohol at below .08, it’s still a violation, and we can do that with marijuana. And doing that with 

younger drivers—that’s the 16 to 20—that makes a difference. 

That would be a step that would make things better, I think, 

that would be. 

The poly drug problem we talked about, it’s where you are now 

and it’s where we are going, into more and more of that. We need 

to have additional penalties for people who are using multiple—— 

Ms. SCHAKOWSKY. I am looking at the clock. I guess I just ran 

out of how fast 5 minutes goes. I apologize. 

I will definitely look at all of your testimony and I think this is 

a bipartisan issue. I don’t think there is any question about it, and 

if there are things that we should do. 

But I think data—does everybody agree—is really important for 

us to do. 

Thank you. 

Mrs. WALTERS. The chair will recognize the gentleman from Indiana, Mr. Bucshon. 

Mr. BUCSHON. Thank you, Chairman. 

I was a surgeon before I was in Congress so I have had trauma 

patients who have been in car crashes and other things and seen 

some of the results of impaired driving, from that perspective. 

I also had another hearing in the Health Subcommittee so I am 

sorry I wasn’t here for your testimony. But I’ve read through your 

testimony. 

One of the things as a physician that concerns me is across the 

country we are legalizing marijuana for recreational use. I personally oppose that based on medical grounds. 

Evidence has shown that in the developing brain, which would 

be a young person all the way up through their mid to late 20s that 

there is substantial evidence of permanent long-term cognitive 

changes and that I think we are going to find later on are going 

to be substantial. 

That said, the other thing I am concerned about is in the short 

term, putting in legal sustainable ways to determine how impaired 

people are when they are driving when they are using marijuana 

exclusively, it’s easier if they have alcohol at a high level or something. 

But I think you’re going to start seeing more of that. You’re 

going to start seeing more impaired driving. 

We had a case in my district where a young lady, a teenager, 

was sledding and unfortunately, was hit by an impaired driver. 

It’s complicated, but the gist of it is the impaired driver didn’t 

have any alcohol in their system. 

62 

But, clearly, in the field, the officer felt that they were impaired 

and then, of course, when you go to court there is no substantial 

legal evidence that they were impaired at the time other than the 

word of the officer, because, as you know, THC doesn’t stay in the 

bloodstream very long. 

Someone pointed that out in their testimony. It gets distributed 

into your body. It can stay in your hair and your fat for a long 

time. But in the short term, you can’t determine, at least at this 

point, legally what determines impairment. 

So the question I have—and anyone could start to address this— 

is how do we begin to get a national legal standard for impairment? 

Ultimately, the states will do it but, how we did with the .08— 

we have ways of having the states adopt a national standard. 

How do we get to that point? Because I am pretty concerned 

about it. Indiana, honestly, it’s not a partisan issue. Indiana is 

pretty red, but the legislators are talking about legalizing recreational use in our state. 

So we will start with Dr. DuPont and how can we get to a legal 

standard for impairment with marijuana use that will hold up in 

court? 

Dr. DUPONT. Well, I think we do have tests for impairment. We 

have the field sobriety test and the ARIDE test. Those are tests for 

impairment. 

People are not drug tested unless they fail those tests. When 

they fail those tests and they have drugs present, that should be 

sufficient for the penalty, right there, and once you start to try to 

find a tissue level for any other drug, you’re lost, and I use a simple example to make this point involving drug treatment and methadone is a treatment for drugs. 

Mr. BUCSHON. Right. 

Dr. DUPONT. And if you take a methadone dose of 40 milligrams, 

that’s lethal to a nontolerant person. 

Mr. BUCSHON. All right. 

Dr. DUPONT. A single dose. OK. For a methadone maintained patient, they typically take 100 milligrams a day and have no impairment—no impairment. I want you to hear that—no impairment. 

Mr. BUCSHON. Oh, yes. 

Dr. DUPONT. So if you have a tissue level for methadone, you 

can’t say this one’s impaired and that one isn’t. The ultimate impairment is death. 

We don’t have to have a scientific study. If they are dead, they 

are impaired, and that’s at 40 milligrams. But at 100 milligrams, 

there is no impairment. That’s tolerance. 

Mr. BUCSHON. Right. 

Dr. DUPONT. And that’s true for these other drugs. It’s true for 

marijuana. 

Mr. BUCSHON. So we got a ways to go to try to determine—for 

example, in this—— 

Dr. DUPONT. You can’t do it with a tissue—— 

Mr. BUCSHON [continuing]. In this particular case, this person’s 

attorney is arguing that they were not impaired and there is no 

evidence that they were impaired other than the field sobriety tests 

and the opinion of the officer. 

63 

Dr. DUPONT. And we need to take that seriously along with the 

positive finding. 

Mr. BUCSHON. Right. 

Dr. DUPONT. That’s what that—— 

Mr. BUCSHON. Anyone else have any comments? 

Ms. Holmes, I see you want to comment. 

Ms. HOLMES. Yes, sir. I would really just emphasize what Dr. 

DuPont just said and that’s why I think everybody in the traffic 

safety field emphasizes training officers in both ARIDE or certifying them as DREs so that they can confidently identify the signs 

and symptoms of drug impairment and then be able to articulate 

that in court in a convincing manner, and that becomes a training 

issue. 

So more appropriations for that type of law enforcement training 

is key. 

Mr. BUCSHON. Makes sense. Thanks. My time is up. I yield back. 

Mrs. WALTERS. The gentleman yields, and the chair recognizes 

the gentleman from New Jersey, Mr. Lance. 

Mr. LANCE. Thank you, Madam Chairman, and I may be asking 

questions that have already been asked. We have had a series of 

hearings today and I apologize for not being at this hearing for all 

of its aspects. 

I am from New Jersey and the new governor of New Jersey, Philip Murphy, wants to legalize recreational marijuana by the end of 

the year. This would occur through legislation at the state level in 

Trenton, our state capital. 

I am open to expanding access for medicinal use of marijuana 

but I strongly oppose legalization for recreational purposes. 

I am especially worried about the legalization of recreational 

marijuana’s effects on our roadways. New Jersey is the most densely populated state in the Nation. 

As has been previously stated, the number of American drivers 

killed in automobile accidents in which drugs have been detected, 

that number has surpassed those killed in accidents where only alcohol was found. At least that’s my understanding of the situation. 

Several states, of course, have already legalized marijuana for 

recreational use. To the distinguished and to each of you, could you 

please comment on trends or data that have been produced from 

the states that have legalized recreational marijuana as it relates 

to impaired driving? 

And I will start with you, Dr. DuPont. 

Dr. DUPONT. I don’t have the data for comparing the states. So 

somebody else will have to answer that. 

Mr. LANCE. Thank you very much. 

Anybody on the panel who would like to respond to my question? 

Yes. 

Ms. HARMON. I can speak to what we have seen in California. We 

legalized in 2016 but recreational sales did not go officially online 

until January of this year. 

Currently, in our fatally injured drivers, we are in the range of 

17 to 20 percent that are testing positive for the active drug found 

in marijuana, THC. 

64 

We do know that both Colorado and Washington, once they legalized, saw almost a doubling of their fatally injured drivers originally from the pre-legalization to post-legalization. 

We are not sure yet what California is going to look like because 

that data is as of 2017. We do expect the numbers to increase in 

2018 and 2019. But, again, we are waiting because the full access 

didn’t go online until this year. 

That being said, California had decriminalized marijuana since 

1996 so our numbers may not be as substantial as Colorado and 

Washington. 

Mr. LANCE. And, of course, there is a difference between decriminalization and legalization, as I understand it, and this debate is 

now occurring in New Jersey. 

But without final figures, it’s your view, at least in California, 

that, unfortunately, tragically, the number of fatalities will increase or have increased as a result of this change in legislation? 

Ms. HARMON. Yes, and we are seeing an increase in drug- involved fatalities. 

Mr. LANCE. Others on the panel? 

Ms. SHEEHY-CHURCH. I would say that, in terms of the statement 

marijuana being ahead of alcohol is not true. 

Mr. LANCE. Yes. 

Ms. SHEEHY-CHURCH. But what I would agree with is that we 

are seeing a rise. I have my own opinion relative to marijuana, 

whether it’s medicinal or that it’s not. 

Mr. LANCE. I seek your opinion. That’s why you’re on the panel. 

Ms. SHEEHY-CHURCH. Yes, I won’t—— 

Mr. LANCE. And that’s why I’ve asked everybody on the panel to 

comment. 

Ms. SHEEHY-CHURCH. I still think, though, that, speaking for 

MADD, that what we have to do is stick with our model that does 

work—— 

Mr. LANCE. Yes. 

Ms. SHEEHY- CHURCH [continuing]. And what works is exactly 

what Ms. Harmon says that we—and Ms. Holmes says is really 

looking at our—is our law enforcement being the first step, as putting the tools in the toolbox that they need so that they can better 

understand and stop the fatalities. 

These are accidents, by the way. These are crashes, because a 

crash is something that is done that could have been 100 percent 

preventable. 

Mr. LANCE. I see. My staff used the word crash. I changed it to 

accidents. So that’s my fault, not the fault of my very competent 

staff. 

Ms. SHEEHY-CHURCH. It’s OK. 

Mr. LANCE. Ms. Holmes. 

Ms. HOLMES. I’ll very briefly speak to Washington State. 

Mr. LANCE. Yes. 

Ms. HOLMES. AAA FTS did a study that looked at trends both 

pre- and post-legalization for drivers testing positive for active THC 

and they found an increase from 8 to 17 percent. 

Mr. LANCE. So that’s double. 

Ms. HOLMES. Washington Traffic Safety Commission has also 

done a lot of data analysis and the recent data shows that the 

65 

number-one impairing substance in their fatal crashes is actually 

poly use, so either a combination of alcohol and drugs or multiple 

drugs on board, which is what we are primarily concerned about. 

Mr. LANCE. I thank you and I thank the distinguished panel. 

And let me reiterate that it is my considered judgment, and I 

was the minority leader in the state senate in New Jersey before 

coming here, that it is not good policy, at least for our state, to legalize recreational marijuana. 

I thank the chair. 

Mrs. WALTERS. The chair recognizes the gentleman from Florida, 

Mr. Bilirakis. 

Mr. BILIRAKIS. Thank you. Thank you, Madam Chair. I appreciate it very much. 

Ditto what the gentleman from New Jersey says as far as recreational marijuana as well. Yes, what’s the—I have some questions here and I want to go through it. 

But what is the drug that—besides alcohol and maybe marijuana 

too that is—impairs the individual the most? Can you point to one 

particular drug with regard to driving? 

Ms. SHEEHY-CHURCH. I cannot answer that question if there is 

one over another. Impairment is impairment and different drugs, 

whether they are prescription or illicit, will react to an individual 

differently all the time. 

So I don’t know whether anybody else has the data. 

Dr. DUPONT. I don’t think you’d find one drug that would stand 

out. Those are the two that are most prevalent. But there are lots 

of other drugs—methamphetamine, for example, cocaine, and all 

the new synthetic drugs. 

So it’s an incredibly long list, and all of them are impairing. 

There aren’t any drugs that aren’t impairing. 

Mr. BILIRAKIS. Yes, and also, if you take the drugs legally—the 

prescribed—they could interact with each other and that’s very important that we get the word out. 

How do you propose getting the word out besides the doctors telling the patients, look, you absolutely should not drive when you’re 

under the influence, even though it’s legally prescribed, for example, pain medication or what have you? 

Do you all have any suggestions on that? 

Ms. HOLMES. I think in addition to physicians, also pharmacists. 

I think one of the things that we would certainly recommend to 

safeguard against opioid-impaired driving, particularly when we 

are talking about prescriptions used according to therapeutic doses, 

is to really make sure that at that point of contact where the patient is prescribed a new medication with impairing side effects 

that both the physician and pharmacists are having a conversation 

with that patient that very clearly outlines that they should not be 

operating heavy machinery and that a vehicle constitutes having 

machinery. We are not just talking about crane operators. 

Mr. BILIRAKIS. That’s right. 

Ms. HOLMES. But I think sometimes that doesn’t occur and sometimes that fine print warning label is simply not sending a strong 

enough message. 

Mr. BILIRAKIS. Yes. I agree. I agree. 

Anyone else want to comment on that? 

66 

Dr. DUPONT. I think one of the things that’s striking is that people often don’t know they are impaired. 

Mr. BILIRAKIS. Yes. 

Dr. DUPONT. When people do know they are impaired, that’s, 

clearly, a sign to say if you feel impaired—if you feel high, don’t 

drive. That’s clear. 

Mr. BILIRAKIS. Yes. 

Dr. DUPONT. The problem is that a lot of people feel just fine or 

even feel they are driving better when they are impaired and I 

think that makes it very difficult to say you’re going to educate 

them about it. 

I think the answer is really to not drive after you use drugs. 

Mr. BILIRAKIS. Exactly. 

Dr. DUPONT. But with respect to prescription drugs, I often prescribe myself medicines that are potentially impairing. When you 

start with a drug that is potentially impairing you want to be very 

concerned with that with a patient. 

Once they are on a stable dose, usually it’s not a problem unless 

they add something else to it. 

Mr. BILIRAKIS. And that’s the thing. The mixture of alcohol and 

a drug, whether it’s marijuana or what have you. 

Dr. DUPONT. To be sure, it can be very disturbing. But it becomes difficult to communicate that because the same drug as I use 

in my methadone example—the same dose of the drug, which is 

nonimpairing for a person who’s used to it is very impairing to a 

person who isn’t, and that makes it difficult to broaden these 

bright lines that people want to have. 

Mr. BILIRAKIS. Yes, I know. We got to get the message out. But 

you’re right, everybody’s different. 

So earlier this year, there was an article in our local newspaper 

in Pasco County, Florida—the Laker/Lutz News—that shared a 

tragic story of a constituent, a couple whose daughter and family 

were, sadly, killed by a drug-impaired driver. 

I’d like to insert that the article in the record, Madam Chair, 

please. I’d like to insert that into the record. 

Mrs. WALTERS. So without objection. 

[The information appears at the conclusion of the hearing.] 

Mr. BILIRAKIS. Thank you. 

These parents have since become strong advocates for raising 

awareness and education about drugged driving and I personally 

met with them and heard their heartbreaking stories. 

It highlights the urgency that we have today to address this 

issue and reverse the trends we have been seeing over the past few 

years. 

And, again, I have one other question here. Dr. DuPont, your testimony talks about the essential element of public education to 

help reduce drug-impaired driving. 

We are all aware of the don’t drink and drive messaging that has 

been effective over the years. You say we should have an equivalent don’t use drugs and drive messaging as well and that it should 

be backed by clear policies and enforcement. 

What should these policies look like at the Federal level to help 

with an education initiative? And I did see something the other day 

67 

on TV, and I am not exactly sure what this means because I am 

55 years old, but don’t be baked and drive. 

So but anyway, if you could answer that question for me I’d appreciate it. 

Dr. DUPONT. The don’t be high and drive is what people in the 

marijuana field talk about and I think that’s good advice not to be 

high and drive. 

I think that that’s good. But I like the don’t use drugs and drive, 

to be clear, and I think once you get past that, you get into very 

murky waters about safety. 

Mr. BILIRAKIS. OK. You also mentioned the additional concern 

regarding prescription drugs. I don’t have time. 

All right. Well, I’ll enter it into the record and I appreciate it, 

Madam Chair. Thank you. I yield back. 

Mrs. WALTERS. The gentleman yields. 

I am going to recognize myself for 5 minutes. As we have heard 

in Ms. Harmon’s testimony, my home of Orange County, California, 

is a national leader in the fight against drug-impaired driving. 

The alarming statistic that more Americans are killed in crashes 

in which drugs are detected compared to those which alcohol was 

found are reflected in the fact that Orange County saw a 40 percent increase in drug-impaired driving submissions to the crime lab 

from 2015 to 2016. 

In response, the OC crime lab and DA have developed a multiagency drug-impaired driving initiative focusing on investigation, 

prosecution, and toxicology examination. 

The OC model serves as the foundation for California statewide 

drug-impaired driving model and the district attorney coordinates 

training for all of southern California. 

These local and state initiatives must be in collaboration with 

Federal efforts and I am assured knowing that former Orange 

County resident Deputy Administrator Heidi King is executing 

NHTSA’s drugged driving initiative. 

Last Congress, we enacted the FAST Act, which included language I championed that required NHTSA to study marijuana-impaired driving and how it affects individuals while driving, and I 

would like to submit the report for the record. 

[The information appears at the conclusion of the hearing.] 

Mrs. WALTERS. The state also authorized NHTSA to work toward 

a roadside test for impairment. 

Ms. Harmon, you mentioned the OC crime lab studies, roadside 

saliva testing, and other field test options. Can you further describe 

the challenges in developing an effective field test and the progress 

made toward that goal? 

Ms. HARMON. So we have done a couple of studies. We have published in 2016 and 2018 of this year where we looked at—we went 

back and looked at drivers with active THC in their system and 

looked at the current field work that’s being done by law enforcement—the standardized field sobriety tests and the drug recognition expert program—and our studies concluded that although you 

can’t correlate to a level of impairment, the current tools that law 

enforcement is using are very effective of finding THC-impaired 

drivers. 

68 

Of the additional work that we have done, we did a pilot study 

with the Fullerton Police Department, looking at roadside saliva 

testing and the effectiveness of that testing versus our blood collection model that we have had in our county. 

We have contract phlebotomy for over 30 years, which allows us 

to reduce the time frame in which the blood is actually collected 

and how it’s submitted to the laboratory and tested, and what we 

found is that the roadside saliva model testing is effective for illicit 

drugs—methamphetamine, heroin. 

It was OK for marijuana and it was not effective for prescription 

drugs. In Orange County, we have our third most prevalent drug— 

with the exception of including alcohol—is benzodiazepine, which is 

Xanax, which this would exclude many of those cases if we went 

to a roadside saliva model. 

So we continue to advocate that if we can get effective blood collection that it is a matrix that we can work with and that we already have literature that supports what levels are therapeutic, 

what levels are toxic, and what levels are fatal, which we can provide during testimony in drug-impaired driving cases. 

Mrs. WALTERS. What can Congress do to help develop an effective field test? 

Ms. HARMON. I think what’s really needed is that we have effective tests and so what we really need from Congress is support in 

doing that. 

The standardized field sobriety tests model that law enforcement 

is using is not mandated in police academies. 

The California Highway Patrol mandates that this class—it’s 40 

hours of training for every one of their officers. They also mandate 

the 16-hour ARIDE, which Ms. Sheehy-Church had mentioned before. 

They also mandate that 16-hour class as well. And, again, these 

are classes that are not mandated of all folks who are in law enforcement now. 

The additional thing is that the testing component needs to be 

available. The toxicology labs need to have the resources. 

Much like what the Federal level has done for DNA, they need 

to do that for toxicology, and it will enhance any type of case work 

that involves drugs if those models are used, and ensuring that the 

laboratories actually have the resources they need to test all drivers and to test decedent drivers for the drugs that may be in their 

system. 

Mrs. WALTERS. OK. And you said according to the DA marijuana 

and prescription drugs that count for the majority of drug-impaired 

driving cases in Orange County and you mentioned the crime lab 

will soon begin testing for over 300 drugs in every traffic safety related case. 

Can you explain what factors led the crime lab to expand the 

types of drugs tested? 

Ms. HARMON. We expanded the testing because this is what we 

are seeing. We did a proof of concept research project a couple of 

years ago and saw that over 30 percent of drugs were being missed 

in our cases. 

69 

So we have led efforts over the last several years to become more 

comprehensive in the testing that we do because many of our cases 

are, as already reflected by this panel, poly pharmacy cases. 

As I mentioned, over 40 percent of our nonalcohol DUIs have 

three or more drugs in their system. We want to be able to give 

a comprehensive picture on the data that’s being provided. 

Mrs. WALTERS. OK. Thank you, and I am out of time. 

Ms. SCHAKOWSKY. Can I ask one more? 

Mrs. WALTERS. Sure. I’ll yield to the gentlelady. 

Ms. SCHAKOWSKY. Thank you, Madam Chair. I really appreciate 

it. 

So I am trying to—what you said, Dr. DuPont, about different 

people having different levels of tolerance. 

Now, we set .08. I am assuming that someone like me, who’s a 

horrible drinker—probably one little glass of wine and I might be 

impaired—I don’t know—but yes, we set a firm level. 

What you were saying, can we set levels that are just for everyone for these other drugs, for these other—for marijuana, et cetera, 

because I would think that otherwise it’s impossible to define 

what’s impaired and what isn’t. 

So I don’t know. Whoever wants to answer that but—— 

Dr. DUPONT. Well, I think the answer is no, you can’t do that, 

and let me just mention about with alcohol. It’s not as clear cut as 

you may think that somebody who’s under .08 is not impaired and 

somebody who is over .08 is. That’s called a per se standard. 

There are many people who are alcoholics who are above .08 and 

they pass the field sobriety tests. There are other people who are 

under .08 who fail the field sobriety tests. And you can see this 

very easily from some of the field sobriety data that when people— 

if you look at the people who fail on alcohol, the average level is 

not .09. 

The average level is .15, because many people who are heavy 

drinkers can pass the field sobriety tests. 

So what I am saying is this is a political decision what the number is. It’s not a science decision, and—— 

Ms. SCHAKOWSKY. But there is a practicality about it, too. 

Dr. DUPONT. It’s very important. It’s a wonderful thing. 

Ms. SCHAKOWSKY. Yes. 

Dr. DUPONT. I am in support of it. But not to understand the 

science behind it leads you to want to find that for other drugs and 

I am telling you you can’t do it—what’s happening now, which is 

tragic, is that the search for that tissue level for other drugs is 

stopping us from doing the things we can do right now. 

We say we have got to wait for that. We have got to have new 

research. That is very destructive to say that sure, let’s have more 

research. 

But let’s do the things we can do now—there is lots of things to 

do, and the field sobriety test is a wonderful test. It does detect the 

impairment very well. 

Ms. Harmon was talking to me—when they fail the field sobriety 

tests, 96 percent of the people have drugs or alcohol present. That 

tells you that field sobriety test is a very good test. You don’t need 

another test. That test is good. 

70 

Let’s use it right now. Yes, do more research. But use what we 

have got now because what we have got now is good, and what’s 

happening in Orange County is a model for the country. 

Ms. SCHAKOWSKY. OK. Is there any difference of opinion to weigh 

in at all? OK. Did you want to? 

Ms. SHEEHY- CHURCH. There is no difference of opinion. I absolutely agree with the doctor. 

Ms. SCHAKOWSKY. Ms. Holmes as well? 

Ms. HOLMES. Yes, and to that, I would add that we already have 

impairment-based laws in every single state, which is why that 

somebody who’s impaired with below .08 can be prosecuted for a 

DUI—similarly, for drugs. 

So the emphasis really then should be making sure officers are, 

again, trained to be able to—— 

Ms. SCHAKOWSKY. OK. 

Ms. SHEEHY-CHURCH [continuing]. Identify and articulate signs 

of impairment. 

Ms. SCHAKOWSKY. OK. And Ms. Harmon, you’re on board with 

that too? Yes? 

Ms. HARMON. I agree completely. 

Ms. SCHAKOWSKY. OK. Great. Thank you. That’s helpful. 

Mrs. WALTERS. Thank you. Seeing that there are no further 

members wishing to ask questions, I’d like to thank all of our witnesses for being here today and thank you for being patient with 

us while we had to go vote. 

Before we conclude, I would like to include the following documents to be submitted for the record by unanimous consent: an article from the Heritage Foundation, a policymakers checklist from 

responsibility.org, a report from the governor’s Highway Safety Association, a report from the Institute for Behavioral Health, an article from the Police Chief magazine, and an article from Impaired 

Driving Update. 

[The information appears at the conclusion of the hearing.] 

Mrs. WALTERS. Pursuant to committee rules, I remind members 

that they have 10 business days to submit additional questions for 

the record and I ask that witnesses submit their response with 10 

business days upon receipt of the questions. 

Without objection, the subcommittee is adjourned. 

[Whereupon, at 3:21 p.m., the subcommittee was adjourned.] 

[Material submitted for inclusion in the record follows:] 

71 


35235.040

7/11/2018 Raising awareness about drugged driving 

Online Hditions Social Media Media Kit l'uutes & Games A ~Wards and PrOOuctlon Video Submit Your Classified r\11 Circulation RftqL/IIst 

HOME NEWS SPORTS tDUCAliDN PFISIWIIDliff HEAllH WHAT'S HAPPENING ClOSER lOOK HOME SECTION ABOUT US 

Raising awareness about drugged driving 

February7,201BByKevinWeiss 

A case of drugged driving forever changed the lives of parents joey and Tammy Leonard, 

Now their mission is to ensure other families don't experience the same anguish they must handle 

everyday. 

On Oct. 12, 2015, the Leonards lost their daughter, Kassidy Leonard, her husband, William Griggs, 

and their 12·day.o!d baby granddaugMer, Kimber!ynn Dawn Griggs, after a horrific head·on 

co!lisionwlthan!mpaireddriverlnTennessee. 

The driver, Benjamin Franklin, tllen 28, had crossed over tile road into tile oncoming lanes and 

struck Grigg's vehicle on State Higllway 13 in Houston County, Tennessee. 

The young family was instantly killed. 

Franklin, who was under tile influence of 

oKycodone, methamplletamine and 

amphetamines at tile time of the crasll, 

survived. 

He was later sentenced to 36 years in 

prison for vehicular homicide. 

~we say we re<eived a life sentence, 

because of a senseless, preventable act 

of a grown man. It's difficult for us to 

understand," said joey Leonard, 

associatedeanofacademicaffairs and 

retention services atPHSC'sEast 

Campus, 

Theleonardssharedtheirpersonal 

story during a panel discussion on 

drugged driving prevention at the Pasco· 

Hernando State College East Campus in 

Dade City. 

Kassidyleonard, herhusband,Wil!lamGrigg~.andtheir 

12·day..ald babydaughter,Kimberlynn Dawn Griggs, 

werekil!edbyadruglmpaireddrlverin0ctober2015. 

Kassidy's parents, joey and Tammy Leonard, shared their 

personalstoryduringadrivingpreventionsemlnaratthe 

Pasco-Hernando State College East Campus in Dade City. 

(CourtesyofjoeyandTammyLeonard) 

Topics centered on the consequences of impaired driving, along with the risks of illegal and 

prescription drug use white operating a motor vehicle. Law enforcement and medical professionals 

weighed in. 

The jan. 30 event was part of the college's ongoing Community Awareness Series available to 

community members, students, faculty and staff. 

The Issues 

The National Institute of Drug Abuse says the use of illicit drugs or misuse of prescription drugs can 

http:/llakerlutznews.com/Unnp=54161 

SEARCH 

Search this website .. 

FEATURED VIDEO 

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!ULV11,2018 

116 
72 


35235.041

7111!2018 Ra1smg awareness about drugged drivmg 

milke dnvmg a car \.lnSdfe- JUSt like drrvmg after dnnking alcohol- putting the driver, oassengers 

anrl others who share the road atnsk 

The effens of spenftc Urugs dtffer depending on how they act in the brain, according to the 

organization. 

For example, mariJuana can slow reaction time, impair judgment of time and distance, and 

decrease coordination. Drivers who have used cocaine or methamphetammc can be aggressive 

and reckless when driving. Certam k1!1ds of sedattves, called benzodtazepines. can cause dizziness 

and drowsiness. 

Drugged driving 1s widespread nattonally. 

Accordmg to the 2016 National Survey on Drug Use and Health (NSDUH), 11,8 million peop!e age 

16 drove under the innuence ofilhcit drugs 1n 2016, the late.st d~ta published on the topic. 

Approximately 21 percent of the 31,666 fatal crashes 1n the U.S., m2015 1nvolved at least one 

driver who tested positive for drugs after the inCJdem, according w federal data released to USA 

TODAY and interviews with leaders in the f1eld. 

!n Flonda, there were 281 drug-related crasl1 fata!it1es in 2015. That figure r1as risen every ye<Fr 

SII1Ce2010, when 109drug-related crash fatalitieS reported. 

PaneilstsextensiVelypinpointed the use of manjuana. 

Each warned students about the nsks, espeCially when operatmg a vehicle. 

"Marijuana alters your judgment. and it's something you shouldn't be doing before you gl't behind 

the wheel of a car," sa1d pane!lstjess1ca Boh, who's m her final year at the University of Flonda's 

College of Pharmacy. 

Pasco Sheriff deputy Barry Nixon, another panelist. many times has witnessed the effects of those 

dnvmg under the Influence of manJuana. 

N1xon explained many of his manJuana-related DUl arrests have been those u·~veling over 100 

ml!esperhour,usua!!yina45mphzone 

"When you smoke marijuana, your heart rate gee~ up. yom pulse goes up," Nixon said. 

"The impairment effects can last 1n your body for 24 hours.just like with puin medication or 

anythtng, you don't know how!ong 1t's going to .;rffer.tyou or what it's gomg to do. . You don't 

knawwhatitUoesforyou." 

RecreatJonaldrugsaren'ttheonlyprobleMS, however. 

Drugged drivif1g can also extend to over-the-counter mediCations and prescription medications, 

Bohexplamed. 

"Therea!ityis, any medication can affect your abllitytodrive,"shesaid. 

Her advice is to read prescnptwn labels and consult a pharmacist on how different drugs can affect 

dnving and how it may interact wlth other mediCations. 

"It's your responsibility to know whether or not those medtcations 1mpa1r you," Bah said, 

"If it makes you dizzy or lightheaded, it's probably not a good idea to take it and then get behind 

the wheel of a car. Then•'s a lot of dangerous Interactions that can happen with over-the-counter 

medlcattonsand,orescrlptionmedlcatlor\s." 

Seeking solutions 

The topiC of drug cu!tune aho was d1swssed during the event 

Panelist james Leu set the bLune on pop culture, particularly for negatively influenc'ing millennia! 

by glamorizing drug use 

h!tp:lllakerlutznews.comf!!ni?p"'54161 

WHAT'S !IAPP!NING 

0710312018- Nation Celebration 

Connerton, 21100 Fountain Garden Way in 

Land O'Lakes,wi!l hostttsannua!"Nation 

Celebration" july 3 from 5 p,m, to 9 p.m. 

Therewi!lbearockwall,freegames, 

fireworks,livemusic,foodtrucks,!ocal 

crafters, free bounce houses, a $250giftcard 

g!Veaway,andfireworkssponsored by 

Benedetto's R1storanteltal1ano, Register 

ontlne at Connerton.com/event-slgnup, to be 

el!gibleforgiftcard drawing. [Read 

More ... ) 

07/0312018- Red. Whtte & Brew 

The Lake House, 1201 Kenlake Ave., in Spring 

Hil!, will host "Red, White & Brew" July 3 from 

4 p.m. to 11 p.m. There will be !lve mustc, 

craftbeers,fireworks,avendorshowcase, 

foodvendors,asalutetoveteransandmore. 

Guestscanbringtheirownchairsor 

bJankets,butnooutside food or drinks. For 

Information, cal! Hits 106at(727)597-1063. 

[RQJd More.'"] 

0710412018- Avalon's Independence Day 

Avalon Park West in Wesley Chapel will host 

an lnr.Jependence Day celebration onjuly4 

from 5 p.m. to 9p.m., at its clubhouse, at 

5227 Autumn Ridge Drive. There will be an 

apple pie bake-off, a bike parade, a wet/dry 

bounce park, community performances, and 

llreworksat9p.m.Admissionlsfree.For 

information,call{813)783-1515. [Rrad 

Mort\ .. ) 

0710412018- Cardboard Boat Regatta 

The Seven Oaks Clubhouse. 2910 Sports Core 

Circle in Wesley Chapel, will host a "4th of 

july Ce!ebrafwn & Cardboard Boat Regatta'' 

on]uly4 from 10 a.m. to 3 p.m. Famt!ies can 

build a two-person cardboard boat and 

celebrate our freedom. The two people must 

be able to racemtheboat Therew11l be 

awards for fostest best team, most creative, 

people's choice, best younger team and the 

Titanic-best sinking. For information, visit 

813Area.com. [Read Mere .. ,] 

07/04120 18 ~ Rhythm-n·Bre'o'YS 

2/6 
73 


35235.042

7111/2018 Raising awareness about drugged driving 

lear ts a medtcal consultant at Becton DICkinson and has worked in the pharmacy industry for 

nearly 30 years, with expertise m a drug diversion progr;:~mming. 

"Shun pop culture," lear said. "Find somewhere else to find your values from." 

Lear also urged students to look out for each other and not fall into the peer pressure of abusing 

drugs and alcohol. 

In the eventofdrugoralcoho! use, he advised students to call a caborride·sharingservice,like 

Uber or lyft, instead of getting behmd the wheel. "There's no excuse to not make sure you have a 

safewayhome,"hesaid. 

lear also encouraged students to get involved in their community and local politics to innuence 

regulatorymeasuresonpubhcsafetylssues. 

"Change your world. Change the way you live in it, and be an influence for good," lear said. 

Smce that tragic day m 2015, the leonard fam!ly created a website, StopDruggedDnv1ng.net, to 

educate and raise awareness about drugged driving and drugged drivmg fatalities, as well as 

prov1de resources for those struggling with addiction. They've also been advocates for 

strengthening penalties for drugged driving. 

"Our prayer is that one day drugged driving w11! cease to exist and other families wil! never have to 

put up with the tragic loss of loved ones that we have: Tammy Leonard said. 

For more informat\On, visit StopDruggedDrivir:g,net. 

Published February 7, 2018 

iii Email 

~Pnnt 

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Filed Under: Health, Local New-; Tagged With: B<Hry Nixon, Becton D•ck1n>on, Renp'T';'l Franklm, DJde 

City, james Lear,joeyLeona,d, Kass1dyleo~ard, Lyft. Nat,Of1JI !nsntuteofDrugAbu5e, PJsto-HernandoSt,'lte 

College, State Hrghway 13, Tilr:-Wly LeonJid, Tenn~SI\'e, \Jher, Ur1vers1ty of Fionda College ofPha•mJcy, USA 

Today,WilhamG,ggs 

Speak Your Mind 

Name* 

Email* 

http :/flake rlutznews. com/Jlnf?p:::54161 

The second annual Fourth of July party at 

Rhyrhm & Brews, 4711 Gal! Blvd., in 

Zephyrhills, will be on July 4 from 2 p.m. to 

10 p.m. Food will be provided by Flaming Q 

BBQ ilnd Rhythm & Brews. There also will be 

beersfromlocalbrewers,andwme.live 

band music will begin at 2. p.m., with a lineup 

for the entiredayoffestivities.Ticketsare 

$10m advance and $15thedayoftheevent. 

For information, visit Rhythm-n-brews.com 

or Facebook.com/RhythmBrewsZephyrhil!s. 

!Re~d More.«] 

0710412018- Sparklebratlon 

The annual "Sparklebration" celebration will 

bejuly4from 4 p.m. to 10 p.m., at the Pasco 

County Fairgrounds,36722 State Road 52. in 

Dade City, There will be live entertainment, 

free face painting, and for a nomina! charge: 

a bounce house, pony rides and a petting 

zoo. There also will be a watermelon- and 

hotdog-eatmgcontests,andakaraoke 

contest. Fireworksarescheduledfor9:15 

p.m., weather permitting. Gates open at 4 

p.m.Parkingis$Spervehide.Admissionis 

$6for ages 13 and older. For information, 

visit PascoCountyFair.com. [Read More ... ] 

MoreofWhat'sHappenlng 

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3/6 
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35235.043

Marijuana-Impaired Driving 

A Report to Congress 
75 


35235.044

Suggested bibliographic reference format: 

Compton, R. (20 17). Marijuana-Impaired Driving -A Report to Congress. (DOT HS 812 XXX). Washington., 

DC: National Highway Traffic Safety Administration. 

iii 
76 


35235.045

Technical Report Documentation Page 

L Report No. I'· a"~""'"""""''"' No. 3. RecipienrsCa1alogNo. 

DOT HS 812 XXX 

4. Title and Subtitle s.~Date 

June 2017 

Marijuana-Impaired Driving-A Report to Congress G. Perfonning Organlzatioo Code 

NPD-300 

7. Author(s) B.. Perfurming Organizalioo R'eport No. 

Richard P. Comnton 

9. Performing Organization Name and Address 10. Work Unit No. (TRA.IS) 

U.S. Deportment of Transportation 

National Highway Traffic Safety Administration 

Office of Behavioral Safety Research NPD-300 

1200 New Jersey Avenue SE 

Washington, DC 20590 

11. ContractorGrantNo. 

13. TypeofR.eportandPeriodCovered 

Report to Congress 

14. SponsoringAgcncyCodfl 

15. Supplementary Notes 

16. Alnlnu:t 

This report was prepared in accordance with Section 4008 (Marijuana-Impaired Driving) of the Fixing America's Surface 

Transportation Act (FAST Act), Pub. L. 114-94. The report summarizes what is known about marijuana use and driving. 

The report describes the absorption, distribution and elimination of delta-9-tetrabydrocannabinal (THC) the primary 

psychoactive substance in marijuana, in the body. It contrasts this process with the absorption, distribution and 

elimination Of alcohol in the body, as they are very different processes. The poor correlation of THC concentrations in 

the blood with impairment is discussed, along with the implication that setting per se levels is not meaningful. Some of 

the challenges of measuring driving impairment resulting from marijuana use are reviewed. State laws relating to 

marijuana and driving are presented. What is known about the prevalence ofmarijuana·impaired driving and the crash 

risk associated with marijuana~impaired driving is reviewed . 

. Finally, the report presents information on training for law enforcement to detect marijuana impairment in drivers, the 

feasibility of developing an impairment standard for driving under the influence of marijuana and recommendations for 

increasing data collection regarding the prevalence and effects ofmarij).Jana-impaired driving. 

17. KeyWords 18. Distribution Statement 

Marijuana Marijuana-Impaired Driving THC Document can be downloaded from the DOT Library at: 

www. 

!!!!Il://www.nhtsa.gov/Drivingo/o20Safety/Researcho/o20&%2 

OEv!!l!ti!tion 

19. Security Classification (of this report) 120. Security Classification (of this page) 2l.No.ofPa&:e!J \ 22.Pri" 

Unclassified Unclassified 43 

iii 
77 


35235.046

Table of Contents 

Introduction ................................................................................................................................................................ 1 

Background ................................................................................................................................................................ 2 

The Impaired Driving Detection Process ...................................................................................................... 8 

Drug Testing Process .................................................................................................................................... 9 

Measuring Driver Impairment Due to Marijuana Use ............................................................................................. 10 

Review of Research on the Effects of Marijuana use on Driving ............................................................ ; .. \0 

Feasibility of Developing an Impairment Standard for Drivers under the Influence of Marijuana ............ 13 

Devices Capable of Measuring Marijuana Levels in Drivers .......................................................... : .......... 13 

Methods to Differentiate the Cause of a Driving Impairment between Alcohol and Marijuana ............................. 15 

Description and Assessment of Current State Laws Relating to Marijuana-Impaired Driving ............................... IS 

Other Relevant Marijuana Laws .............................................................................................................................. 16 

Description and Assessment of the Role of Marijuana as a Causal Factor in Traffic Crashes and the Extent 

of the Problem of Mariju81la-lmpaired Driving ............................................................................................... 20 

Prevalence of Marijuana Use by Drivers .................................................................................................... 20 

Estimating Crash Risk of Marijuana-Impaired Drivers .............................................................................. 22 

Epidemiological Studies ............................................................. , ............................................................... 23 

Challenges in Estimating Crash Risk from Drug Use ................................................................................ 23 

Recent Meta-Analyses ................................................................................................................................ 23 

DRUID Study ............................................................................................................................................. 24 

NHTSA's "Crash Risk" Study ..................................................................................................................... 25 

Recommendations .................................................................................................................................................... 26 

Effective Methods for Training Law Enforcement to Detect MarijuanaImpaired Driving .............................................................................................................. 26 

Continue Reseatch to Enable Development of an Impairment Standard for Driving Under the 

Influence Marijuana ............................................................................................ , ............ 27 

Methods for Increasing Data Collection Regarding the Prevalence and Effects 

of Marijuana-Impaired Driving ........................................................................................... 3 0 

References ................................................................................................................................................................ 32 

Appendix ! ............................................................................................................................................................... 3 7 

iii 
78 


35235.047

List of Tables and Figures 

Table 1 - Oral Fluid Drug Screening Devices Drug Categories and Analytic Cut-Off Levels ...... 14 

Table 2- States with Therapeutic Marijuana Use Laws and Date of Enactment ..................... .18 

Table 3- States with Limited Therapeutic Marijuana Use Laws ........................................ 19 

Table 4- States with Personalized Use Decriminalized ................................................... 19 

Table 5- Legalizing Recreational Use ....................................................................... 19 

Table 6- Weekend Nighttime Prevalence of Alcohol and THC in 2007 

Compared to 2013-2014 ........................................................................... 22 · 

Figures 

Figure 1 - General Alcohol Concentration Curve ............................................................ 4 

Figure 2 -Absorption of THC in Plasma After Smoking ................................................... 5 

Figure 3 - Time Course of THC Concentration in Plasma after Smoking Marijuana ..................... 6 

Figure 4 -Time Course of Standardized THC Concentration in Plasma, 

Performance Deficit and Subjective High After Smoking Marijuana ........................ 7 

Figure 5- Marijuana Laws in the United States ........................................................... .17 

Figure 6- Percentage of Weekend Nighttime Drivers by BrAC Category in the Five 

National Roadside Surveys ......................................................................... 21 

iii 
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Introduction 

Marijuana-Impaired Driving 

A Report to Congress 

This report has been prepared in response to a requirement in Section 4008 (Marijuaoa-Impaired 

Driving) of the Fixing America's Surface Transportation Act (FAST Act), Pub. L. 114-94. This section 

states: 

SEC. 4008. MARIJUANA-IMPAIRED DRIVING. 

(a) STUDY.-The Secretary, in consultation with the heads of other Federal agencies as appropriate, 

shall conduct a study on marijuana-impaired driving. 

(b) ISSUES TO BE EXAMINED.-In conducting the study, the Secretary shall examine, at a minimum, 

the following: 

(1) Methods to detect marijuana-impaired driving, including devices capable of measuring 

marijuana levels in motor vehicle operators. 

(2) A review of impairment standard research for driving under the·influence of marijuana. 

(3) Methods to differentiate the cause of a driving impairment between alcohol and 

marijuana. 

(4) State-based policies on marijuana-impaired driving. 

(5) The role and extent of marijuana impairment in motor vehicle accidents. 

(c) REPORT.-

(1) IN GENERAL.-Not later than 1 year after the date of enactment of this Act, the Secretary, in 

cooperation with other Federal agencies as appropriate, shall submit to the Committee on 

Transportation and Infrastructure of the House of Representatives and the Committee on Commerce, 

Science, and Transportation of the Senate a report on the results of the study. 

(2) CONTENTS.-The report shall include, at a minimum, the following: 

(A) FINDINGS.-Theftndings of the Secretary based on the study, including, at a minimum, the 

following: 

(i) An assessment of methodologies and technologies for measuring driver 

impairment resulting from the use of marijuana, including the use of 

marijuana in combination with alcohol. 

(ii) A description and assessment of the role of marijuana as a· causal factor in 

traffic crashes and the extent of the problem of marijuana-impaired driving. 

(iii) A description and assessment of current State laws relating to marijuana. 

-impaired driving. 

(iv) A determination whether an impairment standard for drivers under the 

influence of marijuana is feasible and could reduce vehicle accidents and save 

lives. 

(B) RECOMMENDATIONS-The recommendations of the Secretary based on the study, 

including, at a minimum, the following: 

i) Effective and efficient methods for training law enforcement personnel, 

including drug recognition experts, to detect or measure the level of 

impairment of a motor vehicle operator who is under the influence of 
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marijuana by the use of technology or otherwise. 

(ii) If feasible, an impairment standard for driving under the influence of 

marijuana. 

(iii) Methodologies for increased data collection regarding the prevalence and 

effects of marijuana impaired driving. 

(d) MARIJUANA DEFINED.-In this section, the term "marijuana" includes all substances 

containing tetrahydrocannabinol. 

This report is organized to respond to the requirements stated above in Section 4008. It addresses the 

five issues to be examined, the four topics for which findings are to be provided, and concludes with the 

three areas where recommendations were required (if feasible). 

First, a background section covers some critical information necessary for the reader to understand some 

of the complex technical issues that are the basis for the content that follows. This information is 

designed to provide a basic understanding of the process of absorption, distribution and elimination of 

alcohol and marijuana in the body, the time course ror these processes, the effects these drugs have on 

driving-related skills, how drug testing is conducted, and the impaired driving detection process. 

In 2009 the National Highway Traffic Safety Administration (NHTSA) issued a Report to Congress on 

Drug-impaired Driving (Compton, Vegega, and Smither, 2009) that addressed some of the same issues 

covered in this report and some of the material from that report is relevant here and is incorporated in 

this report. 

Background 

There is a large group of drugs that have the potential to impair driving and cause crashes. This larger 

body of drugs with the potential to impair driving consists of all psychoactive substances. Psychoactive 

substances include alcohol, some over-the-counter drugs, some prescription drugs, and most illegal 

drugs. The mechanism by which these drugs affect the body and behavior, the extent to which they 

impair driving, and the time course for the impairment of driving can differ greatly among these drugs. 

Since the effects of alcohol on driving performance and crash risk are relatively well understood, it is 

useful to review and compare what is known about alcohol-impaired driving and marijuana-impaired 

driving as it clarifies some of the challenges and unknowns that pertain to marijuana-impaired driving. 

Alcohol-impaired driving has been a subject of intense interest and research for well over 60 years. 

There have been many studies conducted on the role of alcohol in contributing to traffic crashes starting 

in the 1950's. This research involved studies of alcohol-impaired driving related skills, primarily 

through laboratory studies involving subjects dosed on alcohol, using psychomotor tasks (reaction time, 

tracking, target detection), driving simulators and drivers on closed courses in instrumented vehicles, 

epidemiological studies including roadside surveys of alcohol use by drivers, and studies of alcohol use 

by crash-involved drivers. This research built a persuasive case that alcohol was a significant 

contributor to traffic crashes. For example, in the 1950's it was estimated that alcohol-positive drivers 

were involved in approximately 50 percent offatal crashes (involving over 25,000 fatalities per year), 

while the latest data available shows that alcohol-related fatal crashes have declined to around 

30 percent (involving over I 0,000 fatalities per year). In the 1960's research was able to estimate the 

crash risk of drivers at different alcohol concentration levels. 

2 
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In the ensuing decades extensive efforts were taken to reduce the harm caused by alcohol use by drivers. 

These efforts included strengthening laws against alcohol-impaired driving, public education efforts 

about the dangers of driving after drinking, development of tools to assist law enforcem~nt in detecting 

and arresting impaired drivers, and the prosecution of alcohol-impaired drivers. This included the 

development of the Breathalyzer and subsequent more sophisticated methods of measuring alcohol 

concentration in the breath. Laws were enacted that made specific alcohol concentrations presumptive 

of impairment; subsequently laws were passed that made it a crime to drive with an alcohol level at, or 

above a specified level (known as "illegal Per Se" levels). To address the deliberate pace often 

encountered in the criminal justice system many States adopted "administrative per se" laws that 

allowed for the almost immediate suspension or revocation of the driver license for persons operating a 

motor vehicle with an alcohol concentration above a specified level. 

Much of this progress in addressing the harm caused by alcohol-impaired driving and the public's 

understanding of this problem derives from the pharmacokinetics (the absorption, distribution and 

elimination of a drug from the body) and pharmacodynamics (how a drug affects physiological process 

and behaviors). These processes differ, often substantially, for other drugs, including marijuana. 

Understanding these differences is critical to understanding how marijuana-impaired driving differs, and 

the impact these differences will have on efforts to reduce the harm from drug-impaired driving. 

When one consumes alcohol (typically in a drink) it is readily absorbed into the blood system in the 

gastrointestinal tract. While there are factors that influence this process (e.g., presence of food) it occurs 

in a fairly regular fashion over time. The peak blood alcohol concentration is generally reached within 

about 20 minutes after the cessation of drinking. The process of eliminating alcohol from the body starts 

almost immediately upon its entry into the blood system. This process takes place primarily in the liver. 

Most doses of alcohol overwhelm the quantity and capacity of the enzymes that break it down, so that 

alcohol is removed from the bloodstream at an approximately constant rate. The elimination of most 

other drugs from the body occurs at a rate proportional to the current concentration, so that they exhibit 

exponential decay. This means the elimination occurs most rapidly when higher concentrations are 

present and slows down when less of the drug is present. 

This fairly steady rate of elimination of alcohol occurs regardless of the concentration of alcohol in the 

blood. The rate is influenced by a number of factors (e.g., the health of the liver, experience consuming 

alcohol). Thus, the peak BAC reached after consumption of a specific quantity of alcohol depends 

primarily on the rate and amount of alcohol consumed, as the rate of elimination is fairly constant. It 

should be noted that alcohol readily passes through the blood-brain barrier (that prevents many harmful 

substances in the blood from entering the brain). See Figure 1 for a graphic display of this process of 

absorption and elimination of alcohol (adapted from APRI, 2003). 

When 0ne compares the effects of consuming alcohol on behavior (balance, coordination, reaction time), 

attention (divided attention, vigilance), cognition (decision making), and other propensities like risk 

taking and judgement, one finds that observed impairment in these functions correlates fairly well with 

alcohol concentration (in the blood or breath). Impairment increases with rising alcohol concentration 

and declines with dropping alcohol concentration. This correlation between alcohol concentration and 

impairment has allowed the use of alcohol concentration (BAC- blood alcohol concentration or BrACbreath alcohol concentration) to be used to infer the degree of impairment caus.ed by the consumption of 

alcohol. The higher the BAC or BrAC the greater the impairment one will find. This well-established 

relationship has provided the basis for laws prohibiting driving with high BACs. 
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FIGURE 

General Alcohol Concentration Curve 

Penk f'hose 

~~' Post-AbsorptM> Phase 

Tune 

~ In summary, ethyl alcohol is a relatively simple drug whose absorption, distribution and elimination 

from the body along with the behavioral and cognitive effects are fairly well documented. 

In comparison, the absorption, distribution and elimination from the body of marijuana (and many other 

drugs), along with the behavioral and cognitive effects is very different from the case with alcohol. The 

term marijuana refers to the plant known as marijuana (cannabis sativa). The typical way in which 

marijuana is consumed has been through smoking the plant material (leaves, flowers, seeds and stem), 

though other means of ingestion have been used, like through eating food products lace4 with an active 

ingredient of marijuana. The use of edible marijuana products has been increasing in recent years and 

presents some interesting new challenges that will be discussed briefly later in this report. 

The primary psychoactive substance in marijuana is delta-9-tetrahydrocannabinal (THC). THC is oo,e of 

over 500 known compounds in the cannabis plant, including more than 80 other cannabinoids. THC is 

associated with the psychoactive effects of ingesting marijuana plant material. THC has been shown to 

bind with receptors in the brain (and to a lesser extent in other parts of the body) and it is likely that this 

process underlies some of the psychoactive (behavioral and cognitive) effects of marijuana use. 

While ethyl alcohol is readily soluble in water, and hence blood, THC is fat soluble. This means that. 

once ingested, THC is stored in fatty tissues in the bOdy and can be released back into the blood 

sometimes long after ingestion. Some stodies have detected THC in the blOQd at 30 days post ingestion 

(Heustis, 2007). Thus, while THC can be detected in the blood long after ingestion, the acute 

psychoactive effects of marijuana ingestion last for mere hours, not days or weeks. Also, unlike alcohol, 

wbj.ch is metabolized at a steady mte, the metabolism ofTHC occurs in a different fashion such that 

THC blood levels decline exponentially. Some stodies have reported a fairly wide variability that is 

affected by the means of ingestion (smoking, oil, and edibles), potency, and user chamcteristics. Most 

research on the.effects of marijuana has used smoking and often do not measure the concentration of 

THC in the blood. 

4 
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Figure2 

Absorption of THC in Plasma after Smoking 

180 

150 

120 

ng/mL 

90 

60 

30 

2 6 10 14 18 22 2 6 30 

Minutes 

Note: Whole Blood THC is less than Plasma THC 

Figure 2 (above) shows a genemlized example of the absorption ofTHC in the blood (plasma) after 

smoking a marijuana cigarette (Heustis, 2007, Huestis, Hemmingfield, Cone, 1992). Blood plasma is 

whole blood with the blood cells removed, in other words just the liquid portion of whole blood (serum 

is plasma without clotting factors). Note that THC is detectable in the blood within a minute or so after 

the initiation of smoking. The peak THC level occurs at the end of smoking or immediately after 

cessation (depending on the rate and duration of inhalations). THC levels drop mpidly after cessation of 

smoking. In contrast to alcohol, which is metabolized at a relatively steady rate, THC is metabolized at 

an exponentially declining rate where the THC blood level first drops mpidly, followed by a slower 

decline as lower THC levels are reached. As seen in Figure 2, within 30 minutes the THC level has 

dropped to 80-90 percent of the peak level. After a few hours only low or no THC can be detected in 

the blood. Very low THC levels may persist in the blood from a single administration for more than six 

hours. · 

While peak THC levels occur right after smoking ends, when alcohol is ingested by drinking, a peak 

BAC level in the blood or breath does not occur until sometime after the last drink is consumed. As 

mentioned above, alcohol primarily is absorbed into the blood (and hence into the lungs) through the 

gastrointestinal tract. Depending on a variety offactors it can take 20 minutes or more before alcohol is 

detectable in the blood or breath. The peak BAC level is dependent on the rate of intake and the rate of 

elimination. For the average person BAC is eliminated at a steady rate of approximately .015 BAC per 

hour. Thus, someone with a peak BAC of .16 would still have detectable alcohol in their blood ten 

hours later. 

Figure 3 (below) shows the time course for THC in plasma after smoking over a longer period oftime 

(Berghaus 1998; Chester 1995). When a driver's blood sample is collected, either because of a crash or 

if they are stopped by police for suspicion of impaired driving, the collection almost always occurs 

hours after ingestion has ceased. Often, time passes between the cessation of smoking and the beginning 

of driving, and more time passes between the beginning of driving and the encounter with law 

enforcement officials. Yet more time passes between the beginning of this encounter and point in time 

when blood is drawn (often after a search warrant is obtained for driving under the influence of drugs or 
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Figure3 

Time Course of THC Concentration in Plasma after Smoking Marijuana 

[15mg THC in a 70kg person] 

(Adapted from Berghaus et. al. 1998 and Chester 1995) 

120 ~ 

100 

A • Absorption 

OidrJo..A.IOn 

E • EUmln&ion 

after the driver has been transported to a hospital post-crash). Thus, the likely THC level detectable in 

such a blood sample will be relatively low. 

It was mentioned above that the effects of alcohol consumption mi. behavior, judgement, cognition and 

emotions all correlate fairly well with the rise and fall of alcohol concentration in the body as measured 

by blood alcohol concentration and breath alcohol concentration. This hlis been well established 

through a large number of carefully controlled studies in which subjectS were dosed with alcohol and 

had their BAC or BrAC measured repeatedly while they performed a variety of tasks over time 

(see US DOT, 1991 ). The higher the alcohol concentration the greater the impairment that was 

observed. As alcohol concentration rose so did the degree of impairment; as alcohol concentration 

declined so did the degree of impairment. 

Unlike alcohol, marijuana is classified as a Schedule I substance under the Controlled Substances Act. 

A much smaller number of studies have looked at the impairing effects of marijuana use on drivingrelated skills. Less ls known about these effects due in part to the typical differences in research 

methods, tasks, subjects and dosing that are used. A clearer understanding of the effects of marijuana 

use will take additional time as more research is conducted. The extra precautions associated with 

conducting research on a Schedule I drug may contribute to this relative lack of research. For example, 

these include the need for a government license tO obtain, store and use marijuana, t!te security 

requirements for storage, and documentation requirements and disposal requirements. 

While fewer studies have examined the relationship between THC blood levels and degree of 

impairment, in those studies that have been conducted the consistent finding is that the level ofTHC in 

the blood and the degree of impairment do not appear to be closely related. Peak impairment does not 

occur when THC concentration in the blood is at or near peak levels. Peak THC level can occur when 

low impairment is measured, and high impairment can be measured when THC level is low. Thus, ·in 

6 
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35235.054

contrast to the situation with alcohol, someone can show little or no impairment at a THC level.at which 

someone else may show a greater degree of impairment. 

Figure4 

nme CoUIH t>f stlllldBrdlud THC Con-allan In Pluma, 

Perfonnanoe Detlclt and SUbJective High after smoking MarQuana 

(Adapted lram Berghaua et aJ, 1998, stlaht and Kilerateln 1998 and 

120 Robbe 1914) 

eo 

100 ""-- ... /·\ ,.._~·-·----.- ! \ t._ -+---·~ ~ I ,~ 

, A·~ "·!-:~·-· ·-'1liL ... """"'-

_,_ T HC C.,.,.., .Cion (flQ/ml) 

--k- Pa-rform.,..ea {o/ab1Mine) 

60 

--..._ ... 

40 

20 

60 "15 90 100 120 135 100 

While high levels of THC are detected in the blood (and oral fluid) during and right after smoking, they 

are not typically observed an hour or two later. In cases of traffic crashes or arrests for impaired driving. 

it is most likely that only relatively low levels of THC will be found by the time an oral fluid or blood 

sample is obtained. Low THC levels of a few nanograms per milliliter (ng!rnl) in blood can result from 

relatively recent use (e.g., smoking within 1-J hours) when some slight or even moderate impairment 

is likely to be present, or it can result from chronic use where no recent ingestion has occurred and no 

impairment is present. 

Figure 4 above shows this lack of clear correspondence between THC level in plasma and impairment 

(also subjective reports of being "high") in subjects who ingested marijuana through smoking (Ward, 

N.J. and Dye, L. 1999). As expected, the peak THC level is reached soon after smoking ends. 

However, peak performance deficits are observed long after the peak THC level occurs~ In fact, peak 

impairment occurs at 90 minutes after smoking while the THC level has declined over 80 percent from 

the peak level at that point in time. Notice also that the subjectively reported ''high" also does not 

correspond well with blood plasma THC concentration. THC level in blood (or oral fluid) does not 

appear to be an accurate and reliable predictor of impairment from THC. Also, when low levels of THC 

are found in the blood, the presence of THC is not a reliable indicator of recent marijuana use. 

The next two sectfons provide a brief overview of the impaired driving detection process and the drug 

testing process. 

7 
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The Impaired Driving Detection Process 

The detection of driver drug impairment typically takes place as a result of a law enforcement officer 

observing inappropriate driving behavior. The officer will stop the vehicle and engage the driver in 

conversation while the driver is inside the vehicle. The officer at this time may form a suspicion that the 

driver is impaired. This suspicion can be based on observations of driving behavior, the appearance of 

the driver (e.g., face flushed, speech slurred, odor of alcoholic beverages on breath), the behavior of the 

driver, and any statements the driver has made about alcohol or drug use. If the officer suspects that the 

driver is impaired, the officer will request that the driver exit the vehicle, and the officer will proceed to 

conduct pre-arrest screening tests. This phase can include the use of the Standardized Field Sobriety 

Test (SFST), which helps the officer determine whether the driver is impaired by iucohol and if the 

driver's BAC or BrAC is likely to be above the legal limit (Compton, et. a!., 2009; Jones, et. a!., 2003). 

Based on this information, the officer may place the driver under arrest for suspicion of impaired 

driving. At this point, the officer will request a breath or blood sample for alcohol concentration testing 

-most typically a breath sample, but blood or urine samples could also be requested. If the suspect 

agrees to take an alcohol concentration test the officer will, in a jurisdiction that uses breath alcohol 

testing, take the offender to a booking location where the sample will be requested, for example; for an 

evidential breath test. However in many instances, the officer may obtain the sample at roadside in the 

patrol vehicle or in a mobile testing van or similar setting, if an evidential breath test device is available 

in the field. In a jurisdiction in which blood alcohol testing is used, the officer will typically obtain a 

search warrant and transport the driver to a medicinal facility where a blood sample can be drawn. In 

some cases the driver may be transported to a booking facility if a nurse or phlebotomist is available. In 

a few jurisdictions law enforcement officers are trained and licensed as phlebotomists and can draw the 

blood sample themselves. A recent U.S. Supreme Court case decision said that warrantless blood tests 

of alcohol concentration are not generally allowed (Missouri v. McNeely, No. 11-1425, decided April 

17, 2013), although warrantless breath alcohol tests are generally permissible as they are less intrusive 

than blood tests of alcohol concentration (Birchfield v. North Dakota, No. 14-1468, decided 

June 23, 2016). 

While there are cases where an impaired driver exhibits signs and symptoms not indicative of alcohol 

consumption, most often driver impairment is from alcohol, and thus the officer will typi6ally begin by 

testing this possibility. When the BAC test results are incompatible with the observed impairment, then 

the officer will consider drugs other than alcohol as the likely cause of the observed impairment. 

Typically, if the suspect is found to be under the influence of alcohol, especially when the BAC is at, or 

above, the legal limit, the investigation stops at that point, even if the officer has reason to suspect that 

the use of other drugs is contributing to the suspect's impairment. 

There are several disincentives for investigating potential impairment due to drugs other than alcohol 

when BAC evidence clearly shows an illegal alcohol level. Generally, the alcohol charge meets the 

burden of proof and State laws typically do not have additional penalties for multiple substance 

impairment. 

However, if impairment is observed and BAC tests are negative, officers can seek additional evidence to 

support a drug-impaired driving charge. In jurisdictions that participate in the Drug Evaluation and 

Classification (DEC) Program, the arresting officer may request an evaluation by a Drug Recognition 

Expert (DRE). This program, originally developed by the Los Angeles Police Department in the 1970's, 

trains officers to recognize the signs and symptoms of drug use as an aid to investigating suspected 

drug-impaired driving cases. The program is now managed nationally by the International Association 

of Chiefs of Police (IACP), with technical assistance from NHTSA. The DRE performs a drug 

8 
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35235.056

influence evaluation (DIE) on the suspected impaired driver in order to determine whether the observed 

impairment is likely to be due to drug use (and if so, what specific type of drug(s)) or whether the 

observed impairment is due to neurological conditions, illness, or disease. The DRE, or arresting officer 

in cases where no DREis available, gathers a biological sample (blood or urine) to be analyzed by a 

toxicology lab to confirm the suspect had used a drug or drugs. Currently all fifty States and the 

District of Columbia participate in the DEC program with over 8,000 certified DREs. 

Dtug Testing Process 

Generally, prosecution on a drug-impaired driving offense will include evidence that the driver had used 

a specific potentially impairing drug, and that an observed impairment likely resulted from that drug use. 

It is difficult, though not impossible, to obtain a conviction for drug-impaired driving without evidence 

of drug use by the suspect. For example, a suspect may refuse to provide a specimen for testing and/or 

the officer may be unable to obtain a search warrant in a timely fashion. 

Evidence of drug use is typically obtained by the investigating law enforcement officer (physical 

evidence, odor of marijuana use, etc.), but most often comes from forerisic testing conducted in a 

laboratory of a biological specimen taken from the suspect Laboratory testing of biological specimens 

can be time consuming and expensive. 

Laboratory Testing 

Because of the large number of potentially impairing drugs the standard process is to conduct a 

screening test that will give an indication which of a number of drug categories might be present in the 

specimen. Screening tests are easier to conduct, cheaper, and can test for a number of drug categories 

simultaneously. For marijuana, it is common to use an immunoassay test designed to detect 

cannabinoids. However, a positive screening test cannot be taken as evidence that the drug is present in 

the specimen, as these tests lack high specificity, are subject to cross-reactivity, and may on occasion 

produce a false positive result. Many of the 1HC inununoassay screening tests can give a positive 

response to the presence of THC metabolites, even though THC is not present in the sample. 

Following a positive screening test indicating that a type of drug appears to be present in the specimen, a 

more accurate, sensitive and specific test will be conducted for the drugs in the category indicated by the 

screening test. These tests are more complicated to conduct, require expensive equipment, and are time 

consuming. Many laboratories have backlogs of samples waiting for testing that are many months or 

longer. 

The testing methods used will often depend on the suspect drug class. Most common are techniques 

combining a gas chromatograph (GC) with mass spectrometry (MS), often referred to as 

gas chromatography-mass spectrometry (GC/MS). Liquid chromatography is also used in combination 

with mass spectrometry, often referred to as liquid chromatography-mass spectrometry (LC-MS). 

Often, this process involves further ionization with a second pass through the mass spectrometer or 

LC/MS/MS. Not only are these methods highly specific in detecting a specific molecule (based on 

atomic weight and molecular structure) they allow the quantification of the amount of the drug present. 

Specimen Collection 

Evidence that a suspected impaired driver has actually used a drug can be provided by a test that 

definitively shows that it is present in a biological specimen. Typically urioe or blood specimens are 

taken for this purpose and then sent to a laboratory for analysis. There may be a delay of days, weeks, 

or months before the results are known. Thus, an officer will not know the test result prior to the time 

9 
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35235.057

the suspect is charged. Different biological specimens have advantages and disadvantages, depending 

on the purpose of the testing. Biological specimens for drug testing include the following: 

Blood Testing- Blood testing is considered the "gold standard" for testing for the presence of 

drugs in impaired driving cases. However, as described in the background section to this report, 

currently there is limited ability to relate the amount of a drug or metabolite in blood to the 

presence and amount of impairment. Collecting a blood sample is an invasive procedure 

typically requiring a search warrant and a nurse or licensed phlebotomist. 

Oral Fluid. Testing -The collection of oral fluid is minimally invasive and effective in detecting 

many types of drugs, though it may require a search warrant under the same conditions thl!t 

pertain to blood sample collection. Devices that collect oral fluid for laboratory testing appear to 

be a reliable means of testing for recent drug use. The technology to rapidly, accurately and 

reliably collect oral fluid at the point of arrest is quickly evolving. Some compauies market selfcontained test kits that can be used by law enforcement; however, these point-of-arrest screening 

devices have not been shown to be completely accurate and reliable. Marijuana (THC) is readily 

detected in oral fluid, however, there are issues associated with distinguishing use versus 

enviromnental exposure, that have not been fully addressed. 

Sweat Testing- The collection of sweat over time can produce a cumulative record of prior 

drug use. However, a positive sweat test result cannot be regarded as evidence of impairment at 

the time of an arrest or crash. Sweat testing has no advantages over oral fluid testing, and is 

susceptible to contamination. 

Hair Testing- Although it is possible to test samples of hair for drug usage, the results are of 

limited utility for drug-impaired driving cases. Positive hair test results cannot be used to 

demonstrate drug use at the time of driving. In addition, variations in hair growth and the 

addition of substances to the hair, such as coloring products, make it difficult to extrapolate when 

drug usage occurred and may also affect the results. While THC can be detected in hair it can 

result from environmental exposure (e.g., from marijuana smoke) that can produce a positive hair 

test result. 

Urine Testing- The drug testing methodology for urinalysis is well established. Drugs and 

drug metabolites are detectable in urine for several days after the drug has been used (and 

sometimes for weeks). Urine test results cannot be used to prove that a driver was under the 

influence of the drug at the time of arrest or testing. Detection of THC or other cannabinoids in 

urine does not necessarily reflect recent use. 

Measuring Driver Impairment Due to Marijuana Use 

Review ofResearch on the Effects o(Mariiuana use on Driving 

Smoking marijuana has been shown to affect a number of driving-related skills. Laboratory, simulator 

and instrumented vehicle studies have shown that marijuana can impair critical abilities necessary for 

safe driving, such as: 

slow reaction time, for example, responding to unexpected events - emergency braking 

(Casswell, 1977; Smiley et. al., 1981; Lenne, M.G., et al., 2010); 

cause problems with road tracking -lane position variability (Smiley, et. al., 1981; Robbe and 

O'Hanlon, 1993; Ramaekers, 2004); 

!0 
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decrease divided attention- target recognition (Smiley, 1999; Menetrey, et. a!., 2005), impair 

cognitive performance.- attention maintenance (Ramaekers, et. a!., 2004); and 

impair executive functions - route planning, decision making, and risk taking (Dott, 1972, 

Ellingstad eta!, 1973; Menetrey, eta!., 2005). 

It should be noted that this type of research typically does not involve measurement of blood THC 

levels; rather, subjects' performance between non-dosed trials (placebo condition) and dosed trials 

(when admihlstered marijuana) are compared. As a result of differences in how subjects conduct the 

smoking regiroe (inhalation rate, depth of inhalation, and time between inhalation and exhalation), fairly 

wide differences in blood THC levels are likely between subjects. 

An example of this type of research on the effects of marijuana on driving related skills is a recent study 

conducted by the National Institute on Drug Abuse, the National Highway Traffic Safety Administration 

and the Office of National Drug Control Policy using the National Advanced Driving Siroulator at the 

Uhlversity oflowa. Volunteer subjects were dosed on marijuana, alcohol or both marijuana and alcohol. 

They then drove a full motion driving simulator over a predetermined route. One of the effects of 

marijuana use was to cause an increase in the variability of their vehicle's lane position (the ability to 

maintain their vehicle in the center of the lane). Both alcohol and marijuana alone increased lane 

position variability and when combined the effects were additive. However, only alcohol increased lane 

departures (Hartman, et a! 20 15~ .. 

The same study looked at the speed at which the driver drove relative to the speed limit as a result of 

marijuana and alcohol use by the drivers. Subjects dosed on marijuana showed reduced mean speeds, 

increased time driving below the speed limit and increased following distance during a car following 

task. Alcohol, in contrast was associated with higher mean speeds (over the speed liroit), greater 

variability in speed, and spent a greater percent of time driving above the speed liroit Marijuana had no 

effect on variability of speed. In the combined alcohol and marijuana condition it appeared that 

marijuana mitigated some of the effects found with alcohol by reducing the time spent above the speed 

lirhlt.(Hartman, et a! 20 16). 

It should also be noted that many studies have not shown iropairment on these psychomotor tasks, 

cognitive and executive functions as have shown statistically significant iropairments. It is not clear 

why this is the case. It may stem from different THC doses, different time lags between doses and 

testing or driving, differences in the tasks used to assess the effects, tolerance developed through 

frequent use, and the different dependent measurement employed and their relative sensitivity to small 

effects (Smiley, et. a!., 1986; Lenne, et al., 2010). 

Despite the variability in results, this research has demonstrated the potential of marijuana to impair 

driving related skills. It does not show a relationship between THC levels and impairment. These 

studies are conducted under carefully controlled conditions with precise measurements. Under these 

conditions even slight changes in performance are often statistically significant. Whether these often 

small changes in performance are practically significant (i.e., increase the risk of crash involvement) 

cannot be determined within this research framework. 

An interesting finding from this research is that after smoking marijuana, subjects in most of the 

simulator and instrumented vehicle studies on marijuana and driving typically drive slower, follow other 

cars at greater distances, and take fewer risks than when sober (Stein, et. a!., 1983; Smiley, et. a!., 1981; 

Smiley, et. a!., 1986; Casswell, 1977; Robbe and OHanlon, 1993). These effects appear to suggest that 

11 
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the drivers are attempting to compensate for the subjective·effects of using marijuana. In contrast, 

subjects dosed with alcohol typically drive faster, follow at closer distances, and take greater risks. 

Given the large variety of driving related skills that are affected by THC, especi~lly cognitive 

performance and judgment, the attempt by drivers who have ingested marijuana to compensate for the 

effects of marijuana is not likely to mitigate the detrimental effects on driving related skills. 

Congress requested an assessment of methodologies and teclui.ologies for measuring driver impairment 

resulting from the use of marijuana, including the use of marijuana in combination with alcohol. The 

measurement of driver impairment is challenging since driver performance is a product of manual, 

cognitive, and perceptual skills, and the range of performance reflected in the normal driver population 

is large. Deficits in performance can arise from a variety of causes that include alcohol, marijuana and 

other drug use, distraction, drowsiness, emotional states (fear, excitement, anger), and other factors. 

The DEC program includes a set of ,signs and symptoms (physiological, .effects of the eyes, and 

behavior) that are indicative of marijuana use. They are used to determine if observed impairment is 

likely to be caused by marijuana. Almost all of these signs and symptoms are not based on driving 

impairment. 

Current knowledge about the effects of marijuana on driving is insufficient to allow specification of a 

simple measure of driving impairment outside of controlled conditions. Other research methods can 

contribute to our understanding of the risk of driving after marijuana use and will be addressed later in 

this report. 

The question of the combined use of alcohol and marijuana is definitely relevant to the issue of impaired 

driving. It is not uncommon to find people that have used both drugs. In a study of drug use by fatally 

injured drivers conducted in 1991, some 51.5 percent of the fatally injured drivers were found to be 

alcohol positive, while 6.7 percent were THC positive (Terhune, et. al. 1992). Of those who were 

THC positive over half were also positive for alcohol (the majority of which had high BAC levels). 

In the 2013-2014 National Roadside Survey of Drug and Alcohol Use by Drivers, some 9.3 percent of 

all (daytime and nighttime) drug positive drivers also had a positive BrAC, while only 6.0 percent of 

drug negative drivers were positive for alcohol. Among daytime drivers, 2.5 percent of drug positive 

drivers were alcohol positive whereas 0.3 percent of drug negative drivers were alcohol positive. 

Some studies have reported increased impairment on driving related skills when subjects are dosed on 

both alcohol and marijuana (Robbe and O'Hanlon, 1993; Smiley, et. al., 1986). In other cases, no 

increased impairment is found. The relative amount of both drugs ingested may help explain this 

-confusing result. In some cases, the effects of alcohol may be so dominant that the additions of low 

doses of marijuana are not detectable. Further research may help clarify the effects of combined alcohol 

and marijuana use. 

Thus, there are currently no evidence-based methods to detect marijuana-impaired driving. Marijuana 

has some regularly reported effects on driving related skills that might lend themselves to the 

development of marijuana-impaired driving detection techniques, similar to those that have been 

developed for alcohoHmpaired driving (Harris, 1980 and Stuster, 1997). However, many of these 

effects can also be caused by alcohol, other drugs and driver conditions and activities like distraction, 

drowsiness, and illness. It is not possible to predict whether there might be a unique combination of 

cues that could be used by law enforcement to detect marijuana-impaired driving with a high degree of 

12 
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accuracy. Such a method would need to have an extremely low false positive rate (incorrectly 

identifying a driver as marijuana-impaired when they are not) to be useable by law enforcement. 

Feasibilitv of Developing an Impairment Standard (or Drivers under the Influence of Marijuana 

Currently, there is no impairment standard for drivers under the influence of marijuana. Many of the 

reasons for this are discussed elsewhere in this report. They include the fact that there is no chemical 

test for marijuana impairment, like a BAC or BrAC test for alcohol that quantifies the amount of alcohol 

in their body, indicates the degree of impairment, and the risk of crash involvement that results from the 

use o(alcohol. The psychoactive ingredient in marijuana, delta-9-tetrahydrocannabinal (THC), does not 

correlate well with impairment. While very high levels of THC do indicate recent consumption (by 

smoking marijuana) it is very unlikely a police officer would encounter a suspect and obtain a sample of 

blood or oral fluid within a short enough time for high THC levels to be detected. As was mentioned 

earlier, impairment is observed for two to three hours after smoking; whereas by an hour after smoking 

peak THC levels have declined 80% - 90%. 

Without a chemical test, the alternative is to develop a psychomotor, behavioral or cognitive test that 

would indicate the degree of driving impairment and elevated risk of crash involvement due to 

marijuana use. As was described earlier in this report, marijuana has been show to impair critical 

driving related skills including psychomotor abilities like reaction time, tracking ability, and target 

detection, cognitive skills like judgment, anticipation, and divided attention, and executive functions like 

route planning and risk taking. However, available research does not support the development of such a 

psychomotor, behavioral or cognitive test that would be practical and feasible for law enforcement use at 

this time. It is certainly possible that when more research has been conducted on the impairing effects 

of marijuana use on driving, that can be shown to increase the· risk of crash involvement, that it may be 

possible to develop such a test in the future. 

NHTSA, and others, are currently conducting research toward that goal. We are funding a controlled 

dosing study of different ways to measure marijuana impairment in driving related skills in the hope that 

some of these measures will be amenable to use by law enforcement. The first step is to show that 

everyone dosed on marijuana shows an observable amount of impairment in a controlled laboratory 

setting. The next step would be to develop simplified versions of these measures that do not require 

sophisticated and expensive equipment that are suitable for field use by law enforcement. The l~t step 

would be to establish the. relationship between the observed impairment on these tests and elevated risk 

ofcrash involvement. Success in the near term is not guaranteed; but possible. 

Devices Capable of Measuring Marijuana Levels in Drivers 

Conviction on a Driving Under the Influence Of Drugs (DUID) charge, or evidence that marijuana 

played a role in a crash, typically requires evidence that the driver was impaired by marijuana at the time 

of arrest or the crash. While alcohol concentration (BAC or BrA C) is an accurate mea~urement of 

alcohol impairment of driving, the presence ofTHC in the driver's body has not been shownto be a 

reliable measure of marijuana impairment of driving. 

Traditionally, measurement of marijuana use by drivers has involved testing biological specimens for 

the presence of THC (typically blood samples, though urine and other substance have been used). As 

was stated previously, this testing can take days, weeks, or months before the results are available to law 

enforcement. The tests take a few hours or less to conduct, but large backlogs in many State laboratories 

conducting the testing can result in long delays before results are available. Such tests not only indicate 

whether THC was present in the sample tested, they also quantify the concentration or amount of THC 

13 
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detected. These toxicological tests confirm presence of THC but they do not indicate driver impairment 

or necessarily indicate recent marijuana use (when the THC levels are low). 

Recent developments in testing technology have resulted in some companies offering oral fluid drug 

screening devices that could be used by law enforcement to provide a preliminary indication whether a 

laboratory test (e.g. GC/MS/MS) is likely to yield a positive result for THC. Examples of these types of 

oral fluid devices include the Alere DDS2°, which tests for five commonly abused drugs, and the Drager 

DrugTest® 5000. See Table I for the drugs they are designed to detect and for the cutoff levels. 

The use of onsite oral fluid screening devices might encourage law enforcement to pursue a drugimpaired driving charge when they otherwise might not. However, the accuracy and reliability of these 

devices has not yet been clearly established: While some studies of these devices have been conducted, 

many were funded by the manufacturers (Logan, Mohr, Talpins, 2014; Moore, Kelley-Baker, Lacey, 

2013; Logan, Mohr, 2015). At this time, there is insufficient evidence on this subject to draw a firm 

conclusion. NHTSA is currently conducting research that is designed to provide some preliminary 

information on the accuracy, reliability, sensitivity and specificity of five of these devices. 

While the presence ofTHC in a driver (blood, oral fluid, etc.) does not establish impairment, it also does 

not distinguish been active use of marijuaoa and environmental exposure or contamination. Some 

studies have shown that people exposed to second-hand marijuana smoke can test positive for THC 

(Cone, et. a!, 2015; Moore, e.al, 2006). 

Device 

AlereDDS2 

Table 1 

Oral Fluid Drug Screeuiug Devices 

Drug Categories and Analytic Cut-Off Levels 

Cut-Off 

Level 

Drue CatePorv (n,/ml) Device Drul! Cateeorv 

Drager 

DrugTest® 5000 

Cannabis THC) 25 Cannabis (THC) 

Amphetamine 50 Amphetamine 

Methamohetamine 50 Methamphetamine 

(MDMA) 

Benzodiazeoine 20 Benzodiazepine 

Opiates 40 Opiates 

Cocaine 30 Cocaine 

Methadone !5 Methadone 

Cut-Off 

Level 

(n!!!fml) 

5 

50 

35 

75 

15 

20 

20 

20 

Downloaded from the Alere website (h!!p://www.alere.com/enlhomelproduct-<ietailsldds2-mobile-test-system.html) and 

from the Dr!!ger website (h!!p://www.draeger.com/siteslenus us!Pages/Alcohol-and-Drug,Detection!LawEnforcement aspx) on March 16, 2016 

14 
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Methods to Differentiate the Cause of a Driving Impairment between Alcohol and 

Marijuana 

There are no evidence-based methods to differentiate the cause of driving impairment between alcohol 

and marijuana. Given the increasing use of marijuana by drivers in the U.S., there are a number of 

efforts underway, including work by NHTSA, to develop ways of differentiating impairment by alcohol 

from marijuana. These efforts will take a number of years and a successful outcome cannot be 

guaranteed at this time. 

Description and Assessment of Current State Laws Relating to Marijuana-Impaired 

Driving 

All States have laws prohibiting driving while impaired (under the influence or intoxicated) by alcohol 

and other drugs (which includes marijuana). These laws have existed for many decades. Under such 

statutes a State must prove that the drug "caused" the impaired driving (i.e., a prosecutor must show a 

connection between drug ingestion and the incapacity or impairment of the driver). 

In addition, some States have what is known as a per se law, that make it a criminal offense for a driver 

to have a drug or metabolite in his/her body while operating a motor vehicle. These "zero tolerance" 

laws specify that it is illegal to drive with any or more than a specific concentration of the drugs in blood 

or urine. They typically cover some or all Schedule I drugs as identified under the Controlled Substance 

Act of 19701

). In some cases they cover only specific drugs listed in the statute. They also exclude 

categories of drugs, for example, drugs used by a doctor's order (prescription). In some cases they 

explicitly exclude marijuana. 

Fifteen States have drug per se (zero tolerance) statutes. In seven States (AZ, DE, GA, IN, MN, PA, and 

UT) it is illegal to have any amount of a drug or its metabolite in the body while operating a motor 

vehicle (note: the Minnesota law exempts marijuana). In five States (IL,. IA, MI, RI, and WI) it Is illegal 

to have any amount of a prohibited drug in the body while operating a motor vehicle. Three States 

(NV, OH, and VA) make it illegal to have specific amounts of specified prohibited substances in the 

body while operating a motor vehicle. Two States (NC and SD) make'it illegal for a person under age 

21 to drive with any amount of a prohibited drug or substance in their bodies. Five States (CA, CO, ID, 

KS, and WV) make it illegal for any drug addict or habitual user of drugs to drive a vehicle. 

Only a few States (HI, NY, and CA) have DUID statutes separate from their alcohol driving under the 

influence (DUI) laws. In all other States, a driver violates a Dill statute if he/she drives under the 

influence of alcohol, drugs or a combination of alcohol and drugs. The violation is the same, as are the 

penalties. The one exception is the State of Washington in which there are different penalties for only 

drug use, as opposed to alcohol use or a combination of alcohol and drug use. 

Twenty States (AL, AZ, AR, DE, GA, ID, IL, KS, KY, MT, NC, OK, PA, RI, SD, TN, TX, VT, WA, 

and WV) and Puerto Rico specifically disallow legal entitlement to use the drug as a defense to a DillD 

charge. Use of a drug pursuant to a valid prescription and/or according to directions is a defense to a 

DUID charge in several States. 

1 The Controlled Substances Act, Title II of the Comprehensive Drug Abuse Prevention and Control Act of 1970, is the 

federal U.S. drug policy under which the manufacture, importation, possession, use and distribution of certain narcotics, 

stimulants, depressants, hallucinogens, anabolic steroids and other chemicals is regulated. 

15 
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All but five States (AL, AK, MA, NJ, and WV) extend their implied consent laws (i.e., to provide a 

specimen if requested by law enforcement) to DUID. However, both Alabama and Alaska make a 

provision for compulsory testing in cases involving serious injury or fatal crashes. Of the remaining 

45 States (plus DC and PR) that extend their implied consent laws to drugged driving, nine (AR, IN, LA, 

MD, MN, NE, NM, OH, and RI) provide criminal penalties for a refusal to take a test under the implied 

consent law. 

Twenty-eight States and the District of Columbia and Puerto Rico allow for a forced taking of a 

specimen over the objection of the driver, but this is generally in cases of a serious injury or fatal crash, 

and there is probable cause that the driver is under the influence of a drug. Based on the recent Supreme 

Court case in (Missouri v. McNeely is: 133 S.Ct. 1552 (2013)) it would appear that law enforcement is 

required to obtain a search warrant for blood tests except in special circumstances. 

Under implied consent provisions, most State laws stipulate the type of specimen that police officers are 

authorized to collect. Thirty-four States permit blood and/or urine; eight States only allow for blood 

collection; six States permit saliva; and eight States (plus Puerto Rico) permit "other bodily substances." 

With respect to sanctions, some States have relatively light sentences for first offenders, while others are 

more severe in their handling of first offenders. Some States have made a second or third offense a 

·felony, whereas in other States felony status is not reached until the fourth or subsequent offense. 

Penalties, including fines and incarceration, differ from State to State. Many States utilize community 

service, house arrest, electronic monitoring, work release, restitution and assessment of cost and fees to 

supplement the court's ability to sanction offenders. Approximately 35 States provide for court-ordered 

substance abuse treatment and/or education for offenders. A growing number of States require 

participation in a program or treatment as a condition of probation or as a pre-requisite to reinstatement 

of driving privileges. 

Clearly, there is great variability among the States in how they approach driving under the influence of 

drugs. The absence of a separate offense for driving under the influence of drugs makes it difficult to 

distinguish between DlliD and DWI-alcohol arrest and disposition. A recent attempt to investigate the 

effectiveness of drug per se laws was unable to draw conclusions due to the paucity of objective data 

and the inability of State data systems to distinguish between DUID and DWI-alcohol arrests and 

convictions (Lacey, Brainard, and Snitow, 2010). In addition, incases where a driver shows evidence of 

multiple impairments, the hick of difference in sanctions between drug- and alcohol-impaired driving 

provides little incentive for criminal justice officials to pursue a drugged-driving charge in addition to an 

alcohol offense. · 

Other Relevant Marijuana Laws 

Marijuana remains an illegal Schedule I drug from a federal perspective. However, due to the public's 

changing views of marijuana a majority of States have passed laws providing for some type of limited 

use of marijuana. These laws include outright legalization of personal recreational use, decriminalization 

of personal use, State laws allowing thempeutic use ("medical marijuana"), and State laws allowing 

limited therapeutic marijuana use. The States that have passed these different laws are shown in 

Figure 5 below (note this information is accurate as of June 2016, many States have measures on their 

November ballots pertaining to marijuana use that will probably result in additional states legalizing 

recreational marijuana use and therapeutic use). Within these broad categories there are wide differences 

among individual statutes. Twenty-two States and two inhabited territories still conform to the federal 

position that marijuana possession and sales are illegal and prohibited entirely. 

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35235.064

All of this State legislative activity may be sending a message to drivers that marijuana is not as 

dangerous as previously thought However even if marijuana use is legal, that does not mean that 

driving impaired by marijuana is legal or safe. This is similar to the case for alcohol, which is a legal 

drug, but driving impaired by alcohol is illegal. This changing perception of the dangers of marijuana 

use is likely impacting personal choices regarding marijuana use. As more people choose to use 

marijuana it is likely more people will drive impaired by marijuana. 

Currently 25 States have passed therapeutic marijuana use laws (along with Washington, DC, Gurun, 

and Puerto Rico). These States are shown in Table 2 below along with the year their therapeutic 

marijuana use laws were originally enacted (some have modified their thempeutic marijuana use laws 

one or more times since enactment). Some of the most recently passed measures have not gone into 

effect yet. 

FigureS 

Marijuana Laws in the United States1 

Jurisdiction with legalized cannabis. 

Jurisdiction with bod> therapeutic use and decriminalization laws.1 

Jurisdiction with legal psychoactive therapeutic cannabis use. 

Jurisdiction with legal non-psychoactive therapeutic cannabis use. 

Juris diction with decriminalized cannabis possession laws. 

Jurisdiction with cannabis prohibition. 

1 Includes laws which have not yet gone into effect 2 Mississippi bas only legal non-psychoactive therapeutic cannabis nse. 

An additional ten States have a form oflimited therapeutic marijuana use (with low THC and high CBD 

allowed). CBD is a cannabinoid that does not appear to be psychoactive and lacks most adverse sideeffects but is believed to have potential for medical purposes. 

!7 
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35235.065

Twenty-one States and the District of Columbia have decriminalized small amounts of marijuana. This 

generally means certain small personal-consumption amounts are a civil or local infraction, not a State 

crime (or are a misdemeanor with no possibility of jail time). 

Decriminalization States are Alaska (which has subsequently legalized personal consumption and 

possession of small quantities), California, Colorado (also now has allowed legalization of personal 

consumption), Connecticut, Delaware (enacted in2015), Illinois (enacted in2016), Maine, Maryland, 

Massachusetts, Minnesota, Mississippi, Missouri, Nebraska, Nevada, New York, North Carolina, Ohio, 

Oregon (also now with legalized personal consumption), Rhode Island, Vermont and Washington (now 

having Jegalized personal consumption), and the District of Columbia (also now with legal personal 

consumption). A number of cities and counties across the U.S. have also decriminalized personal use 

and possession of small quantities of marijuana. 

Six of the States that have decriminalized possession or use of marijuana (Minnesota, Missouri, Nevada, 

North Carolina, Ohio and Oregon) have made it a low-level misdemeanor, with no possibility of jail for 

qualifying offenses. Th~ other States that decriminalized marijuana use have specified small amounts of 

marijuana as a civil infraction. As noted above, four of the States that originally decriminalized personal 

use and possession of marijuana have subsequently legalized the personal recreational use of marijuana. 

Some States have passed more than one of these measures. The laws of the remaining twenty-two States 

and two inhabited territories follow the federal laws and prohibit marijuana possession and sales are 

illegal and prohibited entirely. 

Table2 

States with Therapeutic Marijuana Use Laws and Date of Enactment 

Date of Date of 

State Enactment State Enactment 

1. California 1996 2. Alaska 1998 

3. Oregon 1998 4. Washington 1998 

5. Colorado 2000 6. Hawaii 2000 

7. Nevada 2000 8. Vermont 2004 

9. New Mexico 2008 10. Michigan 2008 

11. Rhode Island 2009 12. New Jersev 2009 

13. Arizona 2010 14. Maine 2010 

15. Delaware 2011 16. Montana 2011 

17. Connecticut 2012 18. Marvland 2013 

19. Massachusetts 2013 20. New Hampshire 2013 

21. Illinois 2014 22. Minnesota 2014 

23. New York 2014 24. Ohio 2016 

25. Pennsylvania 2016 

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Table3 

States with Limited Therapeutic Marijuana Use Laws 

State Date Enacted State Date Enacted 

Alabama 2014* Iowa 2014 

Kentucky 2014 Mississippi 2014 

Missouri 2014 North Carolina 2014 

South Carolina 2014 Tennessee 2014 

Utah 2014 Wisconsin 2013 

* Not yet effective 

Table 4 

States with Personalized Use Decriminalized 

State Date Enacted State Date Enacted 

Alaska* 2014 California 1976 

Colorado* 1975 Connecticut 2011 

Delaware 2015 Illinois 2015 

Maine 1976 Maryland. 2014 

Massachusetts 2008 Minnesota 1976 

Mississippi 1977 Missouri 2014 

Nebraska 1978 Nevada 2001 

New York 1977 North Carolina 1977 

South Carolina Ohio 1975 

Oregon* 1973 Rhode Island 2012 

Vermont 2013 Washington* 2012 

District of Columbia* 2014 .. *Also has legaliZed personal possessiOn and use of small amounts ofmattjuana 

Table 5 

States Legalizing Recreational Use1 

State Date of Enactment Amount Allowed 

Alaska 2015 1 oz. 

Colorado 2014 1 oz. 

Oregon 2015 8 oz. 

Washington 2014 1 oz. 

District of Columbia 2014 2oz. 

I -For persons at least 21 years old 

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Description and Assessment of the Role of Marijuana as a Causal Factor in Traffic Crashes 

and th.e Extent of the Problem of Marijuana-Impaired Driving 

The scope and magnitude of the marijuana-impaired driving problem in this country cannot be clearly 

specified at this time. However, thete are a number of indicators that suggest that a problem exists. 

These include numerous cases of drivers involved in serious injury and fatal crashes who are held 

responsible, in part as a result ofmarijuana~impaired driving, along with a significant number of drivers 

arrested and convicted for marijuana-impaired driving. There is also clear evidence that an increasing 

number of people use marijuana, perhaps.reflecting changing public attitudes toward marijuana use, 

possibly due, in part, to State medicinal marijuana laws, decriminalization of marijuana, and legalization 

of recreational use of marijuana (see the 2016 report from Monitoring the Future Annual Survey of Drug 

Use conducted by NIDA and the 2013-2014 National Roadside Survey). A series of nationally 

representative studies of driver use of alcohol and drugs conducted by the National Highway Traffic 

Safety Administration have found increased use of marijuana by drivers. These studies have provided 

the best empirical evidence regarding marijuana use by a wide swath of the American public (Lacey, et. 

al, 2009; Berning, Compton and Wochinger, 2015). Previous estimates of marijuana use have relied on 

self-report data, which likely included some underreporting. The NHTSA studies collected blood and 

oral fluid samples from paid volunteer drivers on the road and analyzed these samples for the presence 

ofTHC. 

Prevalence of Marijuana Use by Drivers 

Over the last five decades, NHTSA and/or the Insurance Institute for Highway Safety (IIHS) conducted 

five national surveys to estimate the prevalence of drinking and driving in the United States (Wolfe, 

1974; Lund and Wolfe, 1991; Voas et al, 1998; Compton and Berning, 2009; Lacey et al, 2009). The 

first National Roadside Survey (NRS) was conducted in 1973, followed by national surveys of drivers in 

!986, 1996, 2007, and 2013-2014. These surveys used a stratified random sample of weekend 

nighttime drivers in the contiguous 48 States and collected data directly from drivers on the road. 

The 2007NRS added procedures to the NRS for the first time to estimate the use by drivers of other 

potentially impairing drugs. Prior roadside surveys had only collected breath samples to determine 

breath alcohol concentration (BrA C). Due to developments in analytical toxicology, NHTSA determined 

it would be feasible in the 2007 and 2013-2014 surveys to determine driver use ofa variety of 

potentially impairing drugs including illegal drugs as well as legal medications. 

The National Roadside Surveys have shown a remarkable decreasing trend in alcohol use from the first 

survey in 1973 to the most recent one in 2013-2014. Figure 6 shows the percentage of weekend 

nighttime drivers with BrACs across three categories: BrAC of .005 to .049 g/210L; BrACs of .050 to 

.079; and BrACs of .080 and higher. The surveys found a decline in each BrAC category. Further, there 

has been a large decrease in the percentage of drivers who were alcohol positive, from 35.9 percent in 

1973 to 8.3 percent in 2013-2014. For BrACs of .08 and higher, there was a decrease from 7.5 percent 

in 1973 to 1.5 percent in 2013-2014, revealing an impressive 80 percent reduction in the percentage of 

alcohol-impaired drivers on the road on weekend nights (Berning, Compton, and Wochinger, 2015). 

THC was by far the most prevalent drug detected in this representative sample of drivers. As shown in 

Table 6, 8.6 percent of the drivers tested positive for THC in 2007 and 12.6 percent tested positive for 

THC in 2013-2014. This represents a large 48 percent increase in the prevalence of drivers testing 

positive for THC in just seven years. On the other hand, the percentage of drivers testing positive for 

20 
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35235.068

alcohol declined from 12.4 percent in 2007 to 8.3 

decrease (Berning, Compton, ood Wochinger, 

an approximately 33 percent 

In addition to these national roadside surveys, !here have been two Statewide rep,resentati,~e 

alcohol and drivers; one conducted in California in 2012 !llld the 

the effecta use of marij!lllll!l, specifically retail sales, 

2014 !llld 2015. 

22.3 

2 .08 g/210 L 3 From 1973 

byBrAC 

Surveys"" 

liters of breath. The illegal limit in all States is .08. 

S!l!tes had BrAC linti!s ifult l'llll.ged from .Oil ro .1 S. 

A.f..'t.eT 2004, nU SW.tes had Bt·AC limits of ,08. 

21 
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Table6 

Weekend Nighttime Prevalence of Alcohol and THC 

in 2007 Compared to 2013-2014 

Substance 

Alcohol 

THC 

The California Statewide Roadside Survey was the first such survey conducted in one State. It 

examined the prevalence of alcohol, marijuana and other drug use by drivers (Lacey J, eta!, 2012). The 

survey was modeled on data collection procedures used in the 2007 National Roadside Survey of 

Alcohol andOrug Use by Drivers, sponsored by NIITSA. The results showed that marijuana (fHC) 

was the most frequently encountered drug with a prevalence rate of7.4 percent of weekend nighttime 

drivers in California. 

The study in Washington State was conducted jointly by the Washington Traffic Safety Commission and 

NHTSA. It followed the passage in 2012 of a citizen initiative to legalize personal recreational use of 

marijuana and was designed to assess whether the percentage of drivers who tested positive for THC 

iocreased after retail sales of marijuana became legal in July 2014. 

Data was collected in three stages: 1) immediately before implementation oflegal sales, 2) six months 

after implementation, and 3) one year after implementation. The results of the study showed an increase 

in THC positive drivers across the three wa'ves: 14.6 percent, 19.4 percent, and 21.4 percent. These 

increases were not statistically significant. There was a statistically sigoificant increase in daytime 

prevalence ofTHC-positive drivers between Wave 1 (7.8%) and Wave) (18.9%). While there was also 

an increase in drivers positive for THC at night across each successive wave (17.5%, 19.8%, and 

22.2% ), these were not statistically sigoificant. 

Estimating Crash Risk of Marijuana-Impaired Drivers 

While the extent of use of alcohol by drivers and the risks posed by alcohol use have been well known 

for many decades, relatively little has been knoWn about the use of other drugs by drivers and the 

associated risks. It is known that marijuana is the most frequently detected drug (other than alcohol) in 

crash-involved drivers as well as the general driving population (Terhune, 1982; Terhune et al.;1992; 

Lacey eta!., 2009; Walsh eta!., 2005; Berning, Compton and Wochioger, 2015), and drug-impaired 

driving is an issue of increasiog public and governmental concern in the United States and in many 

other countries (Compton eta!., 2009; Asbridge eta!., 2012; iCADTS, 2007). While it is readily 

apparent that driving-related skills can be impaired by a wide variety of illegal substances and 

medications, the nature and scope of the drug-impaired driviog problem has been difficult to define 

(Jones eta!., 2003; DuPont eta!., 2012; Houwing, 2013). 

As previously discussed there is evidence that marijuana use impairs psychomotor skills, divided 

attention, lane tracking, and cognitive functions (Ramaekers, 2000; Robbe and O'Hanlon, 1993; 

Moskowitz, 1995; Hartman and Huestis, 2013). However, its role in contributiog to the occurrence of 

crashes remains less clear. Many studies, using a variety of methods, have attempted to estimate the risk 

22 
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35235.070

of driving after use of marijuana (Li eta!., 2012; Asbridge et al., 2012). The methods have included 

experimental studies, observational studies, and epidemiological studies. While useful in identifying 

how marijuana affects the performance of driving tasks, experimental and observational studies do not 

lend themselves to predicting real world crash risk. 

Epidemiological Studies 

Epidemiological studies differ in how they estimate risk. Culpability studies compare the rate at which 

crash involved, drug-positive drivers and drug-negative drivers are deemed to be at fault for their 

crashes. Case-control studies compare drug use by crash-involved drivers to drug use by. non-crash 

involved drivers. 1n general, the case-control method is preferable since it can eliminate more sources of 

potential bias in estimating crash risk resulting from drug use (e.g., alcohol use is much higher at night 

and on weekends than during the day or on weekdays). The existing epidemiological research (both 

culpability and case-control studies) have produced contradictory estimates of risk for marijuana use. 

Some of these studies have suggested that marijuana use has minimal or no effect on the likelihood of 

crash involvement, while others have estimated a small increase in the risk of crash involvement. 

Two recent population-based case control studies have estimated the crash risk of drug use by drivers by 

using NHTSA' s Fatality Analysis Reporting System (F ARS) 2007 data for the crash-involved driver 

population and the 2007 National Roadside Survey of Alcohol imd Drug Use by Drivers for the control 

drivers (Li, Brady, & Chen, 2013; Romano, Torres-Saavedra, Voas, & Lacey, 2014). The Li study 

estimated the increased risk of crash involvement for drivers using marijuana at 1.83 times that of drugfree drivers, while the Romano study found no increased risk of crash involvement for those drivers 

testing positive for THC. However, current limitations in the F ARS dataset do not allow calculation of 

unbiased, reliable and valid estimates of the risk of crash involvement that results from drug use 

(Berning & Smither, 2014). 

Challenges in Estimating Crash Risk from Drug Use 

Conducting case-control studies to estimate the risk of crash involvement from drug use presents many 

difficulties. The first challenge is obtaining reliable and accurate estimates of drug use. Many studies 

rely on self-reporting (which have obvious iiiherent problems) rather than actual measurement ofTHC 

in blood or oral fluid. Also, the extent of care regarding the matching of crash-involved and control 

drivers varies to a large extent among studies. The more carefully controlled studies, that actually 

measured marijuana (THC) use by drivers rather than relying on self-reporting, and that had a high 

degree of control of covariates that could bias the results, generally show low risk estimates or in a few 

cases no risk associated with marijuana use (Eivik, 2013). 

R.ecent Meta-Analyses 

A recent meta-analysis by Li (2012) used nine studies, five of which were based on self-report; of the 

remaining four studies, marijuana use was inferred from a urine test in three of the studies (which 

indicates the drivers were marijuana users but not necessarily had used marijuana prior to driving). The 

studies that used self-reporting produced increased crash risk estimates that ranged from 1.7 to 7.16 

times as a result of marijuana use by drivers. The two studies that used urine to determine marijuana use 

resulted in risk estimates of 0.85 to 3.43 times, while the two studies using blood analysis had risk 

estimates of 2.10 and 2.11 times. The overall pooled risk estimate was 2.66 times. 

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Similarly, a meta-analysis by Asbridge (2012) also used nine studies, but six were culpability studies 

with only three using a case-control approach. One of the culpability studies used only FARS data (with 

associated limitations). Of the three using case-control methods, two used self-report by the control 

drivers and one used non-drug positive crash-involved drivers (meaning the controls were drug-free, 

crash-involved drivers). The risk estimates resulting from marijuana use ranged from 0.82 to 7.16 (two 

studies showing marijuana use reduced the risk of crash involvement while seven studies showed an 

increased risk). The pooled odds ratio for all nine studies was 1.92. 

Recently, a large-scale population-based case control study (in which an attempt was made to have the 

crash and non-crash control drivers represent all crash-involved drivers and all non-crash involved 

drivers in the same jurisdiction) was conducted by the European Union to estimate the crash risk of drug 

use by drivers. A population-based study can benefit from a large sample of drivers covering a wide 

geographic area, which may improve the generalizability of fmdings. However, the scale of such studies 

typically limits the control of subject selection. In a population-based case control study, the case and 

control drivers are selected from different sources. For example, the crash-involved drivers might be 

injured drivers taken to a hospital after a crash, while the control drivers might be selected from general 

traffic. This method lacks the careful matching (day of week, time of day, location, direction of travel, 

etc.) used in smaller-scale studies, so it involves some compromise of control for the benefit of a much 

larger sample size. 

DRUID Study 

The recent population-based study known as Driving Under the Influence of Drugs, Alcohol and 

Medicines (DRUID), is the largest study of this type (Hels eta!., 2010). This study, conducted in nine 

European Union (EU) countries: Belgium, Denmark, Finland, Italy, Lithuania, and the Netherlands used 

seriously injured crash-involved driv~Jrs while Norway, Portugal, and Sweden used fatally injured 

drivers. The crash-involved fatally injured driver sample came from a group of drivers for whom a drug 

test had been conducted, over a period of two to three years. Seriously injured drivers came from a 

sample of drivers taken to a hospital. Controls came from a roadside survey conducted in each of the 

respective countries, around the same general time period (e.g., over a year) in each country and 

represented a sample of drivers, in some cases, from the same general area from which the fatally and 

seriously injured drivers' crashes occurred. However, in only two of the countries did the controls come 

from the exact same area of the country as the crash-involved drivers. The specific locations of the 

crashes were not matched to the sites used to obtain the non-crash involved control drivers. Also, drug 

presence was determined from blood samples for all the crash-involved drivers, but eight of the 

countries used oral fluid to determine drug presence in the non-crash involved·drivers (four countries 

also used blood for some control drivers). 

Odds ratios were used to estimate the risk of crash involvement after marijuana use in the fatally and 

seriously injured drivers. The results for the seriously injured drivers showed considerable national 

variability, ranging from 0.29 times (reduced crash involvement) to 25.38 times (increased crash 

involvement). The combined risk was 1.39 times that of drug-free drivers, but this was not statistically 

significant. For fatally injured drivers the estimated risk ranged from 3.91 to 28.88, while the combined 

risk was 1.33 times (also not statistically significant). 

In a pooled analysis of the DRUID data, the highest risk of crash involvement was for drivers with high 

alcohol concentrations (above .12 BAC)-they had a crash risk 20-200 times that of sober drivers. 

Drivers with BACs between .08 and .12 were estimated to be. 5-30 times more likely to crash than sober 

drivers. Drivers positive for THC were estimated to be at elevated risk (I-3 times that of drivers not 

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positive for THC), similar to drivers with BAC levels between .01 to < 0.05. The DRUID report noted 

that some of the risk estimates were based on few positive cases and/or controls which resulted in wide 

confidence intervals. 

In order to further understand the risk of drug use by drivers, NHTSA, with funding support from the 

National Institute on Alcohol Abuse and Alcoholism (NIAAA), contracted with the Pacific Institute for 

Research and Evaluation (PIRE) to conduct the largest and most comprehensive study to address alcohol 

and drug crash risk in the United States through a case-control study, that employed a rigorous design 

involving a precise matching of cases and controls. 

This case control study collected information from crash-involved and non-crash involved drivers for 

20 months (2010- 2012) in Virginia Beach, Virginia. 

NHTSA 's "Crash Risk" Study 

This case control crash risk study is the first large-scale study in the United States to include drugs other 

than alcohol. It was designed to estimate the risk associated with alcohol- and drug-positive driving. 

Virginia Beach, Virginia, was selected for this study because of the outstanding cooperation of the 

Virginia Beach Police Department and other local agencies with our stringent research protocol. 

Another reason for selection was that Virginia Beach is large enough to provide a sufficient number of 

crashes for meaningful analysis. Data was collected from more than 3,000 crash-involved drivers and 

6,000 control drivers (not involved in crashes). Breath alcohol measurements were obtained from a total 

ofl0,221 drivers, oral fluid samples from 9,285 drivers, aM blood samples from 1,764 drivers. 

Research teams responded to crashes 24 hours a day, 7 days a week over a 20-month period. In order to 

maximize comparability, efforts were made to match control drivers to each crash-involved driver. One 

week after a driver involved in a crash provided data for the study, control drivers were selected at the 

same location, day of week, time of day, and direction of travel as the original crash. This allowed a 

comparison to be made between use of alcohol and other drugs by drivers involved in a crash with 

drivers not in a crash, resulting in an estimation of the relative risk of crash involvement associated with 

alcohol or drug use. In this study, the term marijuana is used to refer to drivers who tested positive for 

delta-9-tetrahydrocarmabinal (THC). Drivers who tested positive for inactive cannabinoids were not 

considered positive for marijuana. 

The drug most frequently detected in the oral fluid and blood of drivers was THC, detected in 

7.6 percent (n = 234) of the crash-involved drivers and 6.1 percent (n = 379) of the control drivers. To 

estimate the risk of crashing associated with drug use, logistic regression was used to obtain odds ratios 

(that are close to relative risk estimates). Odds ratios estimate the probability of an event (i.e., crash) 

over the probability that such an event does not occur. If a variable (i.e., drug use) is not associated with 

a crash, the odds ratio of crash involvement associated with that variable will be 1.00. Odds ratios 

above 1.00 indicate a positive relationship, with stronger relationships reflected by higher odds ratios. 

The unadjusted odds ratio for THC was 1.25, representing a significantly elevated risk of crashing by . 

about 1.25 times or 25 percent. These unadjusted odds ratios must be interpreted with caution as they do 

not account for other factors that may contribute to increased crash risk. Other factors, such as 

demographic variables, have been shown to have a significant effect on crash risk. For example, male 

drivers have a higher crash rate than female drivers. Likewise, young drivers have a higher crash rate 

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than older drivers. To the extent that these demographic variables are correlated with specific types of 

drug use, they may account for some of the increased crash risk associated with drug use. 

When the odds ratios were adjusted for demographic variable of age, gender, and race/ethnicity the 

significant increased risk of crash involvement associated with THC disappeared. The adjusted odds 

ratio for THC positive drivers was 1.05 (95% Confidence Limit of 0.86 -1.27). This adjusted odds ratio 

was not statistical! y significant. 

A final adjustment was made for the presence of alcohol. When both demographic variables and the 

presence of alcohol were taken into account, the odds ratio for THC declined further to 1.00 

(95% Confidence Limit of 0.83 1.22). This means there was no increased risk of crash involvement 

found over alcohol or drug free drivers. 

As was described above, there was no difference in crash risk for marijuana-positive drivers who were 

also positive for alcohol than for marijuana-positive drivers with no alcohol, beyond the risk attributable 

to alcohol. Further analyses examined the potential interaction between drug use and breath alcohol 

concentration. No statistically significant interaction effect on crash risk was found between for 

THC positive drivers and BrAC level. 

More information on the methodology of this study is available in a Research Note (Compton and 

Berning, 2015 which can be downloaded at: http://www.nhtsa.gov/staticfiles/ntilpdfi'812117-

Drug and Alcohol Crash Risk.pdf 

Recommendations 

Increase the Use of Effective and Efficient Methods for Training Law Enforcement Personnel, 

Including Drug Recognition Experts, to Detect or Measure the Level of Impairment of a Motor 

Vehicle Operator who is Under the Influence of Marijuana by the Use of Technology or Otherwise. 

Currently, training for law enforcement officers to detect and recognize marijuana impairment in drivers 

is available in three increasingly detailed levels. Officers at the highest level of training are capable of 

making determinations about which drug category (or categories) may be contributing to a driver's 

inability to operate a vehicle. Depending on the individual State and local requirements, not all officers 

may receive training in DUID prior to completing their basic training requirements or afterwards. 

To improve consistency in training, NHTSA developed an 8-hour course, Drugs That Impair 

Driving, which can be used in conjunction with the Standardized Field Sobriety Test (SFST) training. 

NHTSA considers SFST training the foundation for all impaired driving detection training. The Drugs 

That Impair Driving course was developed to provide a general description of drugs, signs that may 

indicate drug use and medicinal conditions that show signs similar to drug use. The course was also 

developed to acquaint officers with the most common types of drugs that impair driving. 

A second level course, the 16-hour Advanced Roadside Impaired Driving Enforcement Program 

(ARID E), is designed to give officers the ability to apply information they have learned about DUID to 

make effective arrests based on probable cause that provides the necessary evidence for prosecution. In 

order to accomplish this goal, the program seeks to increase the officer's overall knowledge of the 

general manifestations of alcohol and drug impairment and to increase their ability to recognize these 

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indicators in the drivers they encounter during their enforcement duties. If these drivers are suspected to 

be impaired, then officers will be better informed in the arrest decision. 

In order to expand the number oflaw enforcement officers who might take this training, NHTSA, along 

with the IACP, offers an online version of this training program that is available to law enforcement 

agencies. 

The highest level of training comes in the form of the Drug Evaluation and Classification (DEC) 

program (NHTSA, 2007). In the early 1980s NHTSA started to take the DEC program, based on the 

Los Angeles Police Department's Drug Recognition Expert (ORE) program, nationwide. The DEC 

program trains officers to identify the signs and symptoms of drug use that could be used to determine 

whether a suspected impaired driver was impaired by drugs and to rule out other possible causes such as 

neurological deficits, diseases, and illness. The procedure was designed to aid the officer in determining 

what specific type of drug was the likely cause of the observed impairment. The program was intended 

to help develop evidence of impairment and guide the analyses of biological specimens wheri looking 

for the presence of drugs other than alcohol in impaired drivers. The DEC training requires 9 days in the 

classroom and additional days of field certification testing. The program is designed to provide a 

limited number of OREs in a jurisdiction. It is not designed for the routine patrol officer. 

As was mentioned previously, the DEC program has expanded to all fifty States and the District of 

Columbia. There are currently over 8,000 certified OREs in the program. The ARIDE training is not 

designed to provide the same level of expertise as that demonstrated by OREs. An ARIDE trained 

officer who encounters a suspected marijuana-impaired driver, would likely summon a ORE to conduct 

the DEC program evaluation, if one is available. 

In summary, training is currently available to law enforcement personnel in a tiered approach, ranging 

from basic information about the different types of drugs that can impair driving, signs and symptoms 

that may indicate drug use (including impaired driving cues), to a more detailed training program that 

equips officers to better recognize when a driver is likely to be impaired by alcohol, marijuana and other 

drugs and collect the necessary information to support an arrest and prosecution. Finally, there is the 

DEC program that provides officers with much more detailed information about different classes of 

drugs that can impair driving, trains them to use standardized examination and test procedures to build a 

convincing case of drug-impaired driving. 

Impaired driving training is resource-intensive in terms of cost and time away from normal duties. Law 

enforcement agencies typically operate with limited funding and staff and face competing demands. 

Most patrol officers will not often encounter a marijuana-impaired driver, so the current tiered approach 

is a reasonable way of efficiently dealing with drug-impaired driving. 

Continue Research to Enable Development of an Impairment Standard for Driving Under the 

Influence of Marijuana, and in the Meantime, Maintain Training and Other Support to Enable Law 

Enforcement Officers and Prosecutors to Pursue Cases UsingAvailable Evidence. 

As the previous sections of this report have indicated, the poor correlation ofTHC level in the blood or 

oral fluid with impairment precludes using THC blood or oral fluid levels as an indicator of driver 

impairment. The use of B~C or BrAC as an indicator of driving impairment has assisted law 

enforcement and prosecutors in being able to show that an alcohol-impaired driver has a BAC that has 

been demonstrated to increase crash risk. The use ofTHC level cannot serve this same role for 

marijuana-impaired driving (Dupont, Voas, Walsh, Shea, Talpins, and Neil, 2012). 

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Toxicologists are not able to provide expert testimony that a specific amount ofTHC present in a 

suspect's blood (or other specimen) is definitively associated with being impaired by marijuana and 

render the driver unable to drive safely. 

It should be noted that the DEA has recently provided revised guidance in August of2016, to 

researchers, that should make it easier to obtain and conduct studies using marijuana (21 CFR Part 1301 

Docket Number DEA 447 Dated July 15,2016). This should spur more research that may help to 

address some of the issues that are currently unresolved about marijuana and driving. 

Expert witness testimony by toxicologists that a BAC or BrAC level found in a suspect's blood or breath 

that was over the legal limit, indicates the suspect was too impaired to drive safely is fairly routine 

testimony in alcohol-impaired driving trials. However, the absence ofBAC or BrAC evidence in an 

alcohol-impaired driving case is not a bar to successful prosecution. Drivers frequently refuse to take a 

BAC or BrAC test. 

A 2012 NHTSA study of BAC test refusals estimated that approximately 21 percent of all suspected 

alcohol-impaired drivers requested to take a BAC or BrAC test refuse. That study did not find a 

consistent difference in conviction rates between drivers who took a BAC test and drivers who refused 

the test. Interestingly, those drivers who refused to take the requested BAC test received substantially 

higher penalties upon conviction (Jones and Nichols, 2012). 

A properly trained officer who follows good investigatory techniques and carefully documents their 

observations can make a convincing case that a driver was too impaired by alcohol to drive safely. The 

same is true for suspected marijuana-impaired drivers. The lack of an "impairment standard" equivalent 

to BAC level does not prevent the successful prosecution of a marijuana-impaired driver. The lack of 

toxicological evidence simply means that the officer has to offer other evidence that the driver was 

under the influence of marijuana and too impaired to drive safely. 

Whether there is some other more formal and standardized way to determine that a marijuana-impaired 

driver is too impaired to drive safely (a test that correlates with increased crash risk) remains to be 

determined. NHTSA has research underway that attempts to develop a relatively simple field test for 

law enforcement use that would indicate that a suspect is impaired by marijuana. This type of test would 

not indicate driving impairment Oaw enforcement observations would be reqUired for that evidence), but 

would be a useful tool for law enforcement, nonetheless. 

A number of States have set a .THC limit" in their laws indicating that if a suspect's THC concentration is 

above that level (typically 5 ng/ml of blood), then the suspect is to be considered impaired. This per se 

limit appears to have been based on something other than scientific evidence. Some recent studies 

demonstrate that such per se limits are not evidence-based. 

A recent study looked at the THC levels in DUID cases in Washington State between August 2009 and 

June 2013 where blood samples were sent to the State toxicology laboratory for testing. All ofthese 

cases involved suspects believed to be impaired by marijuana by the arresting officer or DRE. All of the 

samples were screened positive by a cannabinoid ELISA immunoassay test. The blood was then 

analyzed for THC (cut off 1 ng/ml) using three dimensional gas chromatography mass spectrometry. A 

total of3;814 cases tested positive for THC above 1 nglml. 

These cases were then evaluated as to whether the THC concentrations exceeded certain thresholds, 

specifically, the 2 ng/ml per se threshold applied in Ohio and Nevada and the 5 ng/ml threshold applied 

in Colorado and Washington State. The results showed that a sizeable proportion (24.2%) of all drivers 

(who were suspected of marijuana-impaired driving), had blood THC concentrations below the per se 

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threshold in Ohio and Nevada, while an even larger proportion (62.8%) had concentrations below·the 

per se threshold in Washington and Colorado. 

The adoption of a 5 nglml per se law for THC would appear to result in the exclusion of a large number 

of drivers who law enforcement officers believe to be impaired by marijuana but whose blood THC 

concentrations will fall below this artificial per se threshold during the minimum 1 - 2 ·or more hours it 

will take to collect a blood sample following a stop, investigation and arrest. This will place a large 

burden of the officer to make the case through objective evidence of impairment along with signs and 

symptoms associated with marijuana use. The blood THC concentrations will often impede, rather than 

assist, in making the case to a judge or jury who has to determine whether a suspect is impaired (under 

the influence) as a result of their marijuana use (Logan, 20 15). 

Another recent study conducted using Washington State data was designed to examine whether the 

concentration ofTHC in a drivers blood was a reliable indicator of impairment. This study used 

602 drivers arrested for impaired driving in which only THC was detected, with a sample of 349 drugfree control drivers, for which the subject's performance in the DRE exam were available. Results 

showed significant differences in the THC positive and negative drivers in terms of poorer performance 

on the psychophysical tests (walk-and-turn test, one-leg-stand test, and finger-to-nose test) along with 

indicators like red bloodshot and watery eyes, eyelid tremor, lack of convergence and rebound dilation. 

Having found differences between THC positive and THC negative drivers, the relationship between 

blood THC concentration and performance on tests for impairment was examined. Poor correlation 

between THC concentration and performance was found, which again indicates that blood THC level is 

not a reliable indicator of impairment. 

Finally, an assessment of whether the combination of the physiological, cognitive and psychomotor 

indicators could reliably predict whether the driver's THC concentration was above or below 5 ng/ml 

threshold was conducted. No differences were found except for the finger-to-nose test. Some individual 

signs, symptoms, and tests had weak correlations with the THC concentration being above or below the 

threshold, but none of them met basic sensitivity levels for correctly predicting impairment status. The 

conclusion of the study was that "there is no evidence from the data collected, particularly from the 

subjects assessed through the DRE exam, that any objective threshold exists that establish impairment 

base on THC concentrations in suspects placed under arrest for impaired driving" (Logan, Kacninko, 

and Beimess, 2016). 

A third study that also made use of Washington State data involved drivers in crashes and/or arrested for 

suspected driving under the influence, who were investigated by the Washington State Patrol in which 

blood samples were tested for the presence of alcohol and other drugs (including marijuana) during the 

time period 2005 - 2014. An interesting facet of this study was an estimate of time between the crash or 

arrest and when the blood draw occurred. Time to the blood draw was not always possible to calculate 

due to inadequacies in the records. The median time to draw blood was 165 minutes (almost three 

hours). The median estimated time to draw blood for THC-positive drivers was l39 minutes. Drivers 

negative for THC (but positive for a THC metabolite carboxy-THC) was 175 minutes. This study found 

a clear relationship between the time that is required to do a blood draw and THC concentration, where 

the longer time to the blood draw the lower the THC concentration (Banta-Green, Rowhani-Rahbar, 

Ebel, Audris, and Qiu, 2016). 

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Methods for Increasing Data Collection Regarding the Prevalence and Effects of MarijuanaImpaired Driving 

Encourage States to Collect Data Regarding the Prevalence of Marijuana Use hy Drivers and Among 

Those Arrested for Impaired Driving 

There is a need to improve data collection regarding the prevalence and effects of marijuana-impaired 

driving. NHTSA has collected some data on the prevalence of marijuana use by drivers on a national 

basis, though NHTSA has been prohibited from continuing to collect this inforrnation.1 In contrast, 

there is little State level data about the prevalence of use of marijuana by drivers being collected. As 

States continue to change their laws regarding marijuana use in general and as it relates to driving, this 

lack of State level data prevents evaluation of the effect of policy changes on driver behavior, including 

willingness to drive while under the influence of marijuana, as well as the effect of marijuana on 

crashes, deaths and injuries. 

While assessing the number of people driving impaired by marijuana is not currently feasible, a first step 

is to measure the number of drivers positive for THC on our nation's roads or on a State's roads. As the 

number ofTHC positive driver's increases, it is likely that the number of marijuana-impaired drivers 

will also increase. Measuring the prevalence ofTHC positive drivers is currently feasible as shown by 

NHTSA's two most recent national roadside surveys of alcohol and drug prevalence conducted in 2007 

and 2013-2014, and the two State surveys of the prevalence of alcohol and drug positive drivers. 

Reliable trend data on the prevalence of marijuana positive drivers at the State level would allow for the 

evaluation of effects of marijuana laws such as: 

• Therapeutic marijuana use laws 

• Per Se limits for marijuana (THC) 

Decriminalization of personal use of marijuana 

• Legalization of personal recreational use of marijuana 

For example, State surveys could assess the effect oflegalized =eational marijuana use on the number 

or percentage of people driving after using marijuana. However, such studies require both pre- and postlegalization data. Similarly, without consistent THC testing of impaired driving arrestees over time, 

reports that compare THC positive rates before and after a policy has gone into effect are very difficult 

to interpret, as they may simply reflect increased testing rates. 

We recommend that States be encouraged to conduct prevalence studies of the number and proportion of 

drivers testing positive for THC. Due to the current Congressional prohibition 1 on NHTSA conducting 

national studies of alcohol and drug wie by drivers, national data will not be available. 

States that do not distinguish between drug-impaired and alcohol-impaired driving in arrest or 

disposition data significantly limit their ability to assess the extent of drug-impaired driving and evaluate 

the impact of countermeasures. Similarly, the lack of standardized and complete State record systems 

limits NHTSA's ability to make clear inferences about the scope of the national drug-impaired-driving 

probiem. 

1 - PL 1 14-113, Division L, Title I, Sec. I 42 ( 12118/2015) prohibits NHTSA from using FY 20 I 6 funds to conduct national 

roadside studies of alcohol and drug use by drivers. 

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Establishing and maintaining Statewide arrest data would allow States and others to evaluate the 

effectiveness oflaw enforcement programs on impaired driving, such as the impact of the DEC program 

on DUID arrest rates and convictions. Similarly, accurate and complete data about arrests and 

convictions for drug-impaired driving would allow documentation of the effects of drug per se statutes 

on arrest and convictions. 

NHTSA recommends the following data and record system improvements: 

• States should develop record systems that distinguish among alcohol, drugs, or both for 

impaired driving cases. These records should be integrated into computerized data systems of 

statewide arrest records, the court record systems, and motor vehicle records. One way to 

accomplish this would be to have separate offenses for driving impaired by alcohol and driving 

impaired by drugs. 

• State records systems should document which drugs are used by drug-impaired drivers. 

This information would be helpful for law enforcement, toxicologists, and prosecutors. 

• Standard toxicological screeuing and confirmation procedures should be developed for drug 

testing laboratories to use in identifying and confirming the presence of drugs that impair 

driving. These methods should include standard analytic procedures and minimum detection 

thresholds. There also should be training requirements for the personnel operating these tests. 

In addition to these data and record system needs, NHTSA recommends the following change in State 

statutes: 

State statutes should be amended to provide separate and distinct offenses and sanctions for 

alcohol- and drug-impaired driving that could be applied individually or in combination to a 

single case. This would provide an incentive for law enforcement officers to pursue a possible 

drug-impaired driving charge even when a BAC equal to or above the limit of .08 g/dL has 

already been established. 

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(Available at www.nhtsa.gov/DOT/NHTSA!Traffic%20lnjury%20 

Control/ Articles/ Associated%20Files/8l!l75.pdf.) 

Compton, R, ( 199!) Alcohol Limits for Drivers: A Report on the Effects of Alcohol and Expected Institutional 

Responses to New Limits- Report To Congress, Report Number DOT HS 807 692. Washington, DC: National 

Highway Traffic Safety Administration, U.S. Department of Transportation, February !99! 

Cone, E.J., Bigelow, .G.E., Herrmann, E.S., Mitchell, J.M., LoDico, C., Flegel, R., and V andrey, R.; Nonsmoker 

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DuPont, R. L., Voas, R. B., Walsh, J. M., Shea, C., Ta!pins, S. K., & Neil, N. M. (2012). TheNeedforDrugged 

Driving Per Se Laws: A Commentary. Traffic Injury Prevention, 13(1 ), 31-42. 

Elvik, R. (2013). Risk of Road Accident Associated with the Use of Drugs: A Systematic Review and Metaanalysis of Evidence from Epidemiological Studies. Accident Analysis & Prevention, 60, 254-267. 

Harris, D.H., Dick, R.A., Casey, A.M., and Jarosz, C.J. (1980) The Visual Detection of Driving While 

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Hartman, R.I. & Huestis, M.A. (20 13). Cannabis Effects on Driving Skills. Clinical Chemistry, 59(3), 478-492. 

Hartman, R.L., Brown, T.L., Milavetz, G., Spurgin, A., Pierce, R.S., Gorelick, D.A., Gaffuey, G., and Huestis, 

M.A. (20 IS). Cannabis Effects on Driving Lateral Control with and Without Alcohol. Drug and Alcohol 

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Hartman, R.L., Brown, T.L., Mil.avetz, G., Spurgin, A., Pierce, R.S., Gorelick, D.A., Gaffney, G., and Huestis, 

M.A. (20 16), Cannabis Effects on Driving Longitudinal Control with and Without Alcohol. Journal of Applied 

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Huestis, M.A., Hemmingfield, J.E., Cone, E.J. (1992) Blood cannabinoids I. Absorption ofTHC and formation of 

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Huestis M.A. (2002) Cannabis (Marijuana)- Effects on Human Performance and Behavior. Forensic Science 

Review 2002; 14(1/2): 15-60. 

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Huestis MA, Sampson AH, Holicky BJ, Benningfield JE, Cone EJ. (1992) Characterization of the absorption 

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Huestis MA, Benningfield JE, Cone EJ. Blood cannabinoids I!: Models for the prediction of time of marijuana 

exposure from plasma concentrations of ~-9-tetrahydrocannabinol (THC) and 11-nor-9-carboxy-~-9-

tetrahyl!rocannahinol (THC-COOH). J Anal Toxico/1992;16(5):283-90. 

Jones, R. K., Shinar, D., & Walsh, J. M. (2003). State of Knowledge of Drug-Impaired Driving. (Report No. DOT 

HS 809 642). Washington, DC: National Highway Traffic Safety Administration. 

Lacey, J.H., Brainard, K., & Sitnow, S. (20!0). Drug Per Se Laws: A Review of Their Use in States. (Report No. 

DOT HS 811 317). Washington, DC: National Highway Traffic Safety Administration. 

Lacey, J. H., Kelley-Baker, K., Furr-Holden, D., Brainard, K., & Moore, C. (2007). Pilot Test ofNew Roadside 

Survey Methodology for Impaired Driving. (Report No. DOT HS 810 704). Washington, DC: Naiional Highway 

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Lacey, J. H., Kelley-Baker, T., Furr-Holden, D., Voas, R. B., Moore, C., Brainard, K., Tippetts, A. S., Romano, 

E., Torres, P. & Berning, A. (2009). 2007 National Roadside Survey of Alcohol and Drug Use by Drivers: 

Methodology. (Report No. DOT HS 811 237). Washington, DC: National Highway Traffic Safety 

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Lacey, J. H., Kelley-Baker, T., Furr-Holden, D., Voas, R. B., Romano, E., Ramirez, A., Brainard, K., Moore, C., 

Torres, P., & Berning, A. (2009). 2007 National Roadside Survey of Alcohol and Drug Use by Drivers: Drug 

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Brainard, K.,& Berning, A.(2009, December). 2007 National Roadside Survey of Alcohol and Drug Use by 

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Administration. 

Lacey, J.H., Kelley-Baker, T Romano, E., Brainard, K., and Ramirez, A. Results of the 2012 California Roadside 

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Lenne, M.G., et al., (20 I 0). The effects of cannabis and alcohol on simulated arterial driving: Influences of 

driving experience and task demand. Accident Analysis & Prevention, 2010. 42(3): p. 859-866. 

Li, G., Bradya, J. E., & Chen, Q. (2013). Drug Use and Fatal Motor Vehicle Crashes: A Case-Control Study. 

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Logan, B.K., Kacinko, S.L., Beirness, D.J. (2016) An Evaluation of Data from Drivers Arrested for Driving 

Under the Influence in Relation to Per se Limits for Cannabis. (2016), American Automobile Association 

Foundation for Traffic Safety, May 2016. 

Logan, B.K. and Hosokawa, A.C. (2015) Delta-9-Tetrahydrocannabinol (THC) Concentrations in Drivers Testing 

Positive for Marijuana Use and Consequences for the Effectiveness of a THC per se Law, Center for Forensic 

Science Research and Education. 

Logan, B.K. and Mohr, L.A. (2015) Vermont Oral Fluid Drug Testing Study. The Center for Forensic Science 

Research and Education, Philadelphia, PA. 

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the Drager Drug Test 5000 and Affmiton DrugWipe Oral Fluid Drug Screening Devices. Journal of Analytical 

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Ramirez, A., Berning, A., Carr, K., Scherer, M., Lacey, J.H., Kelley-Baker, T. and Fisher, D.A.,(2016). 

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Combined with Alcohol. Human Psychopharmacology, 1998. 13: p. S70-S78. 

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Appendix! 

Brief Description of the National Roadsides Survey Procedure 

The National Roadside Survey is a nationally representative survey of driver alcohol and drug use. It. 

uses a multi-stage sampling procedure to select survey locations in 60 Primary Sampling Units (PSU) 

across the continental U.S. At each PSU, five actual survey locations were selected at random based on 

roadway type and safety considerations. 

The survey is conducted off of the roadway in an adjacent parking area. 

As a driver approaches a survey site they will pass several large orange construction style signs that say 

"Paid Volunteer Survey" and one illuminated variable message board sign also saying they are 

approaching a paid volunteer survey site. As the drivers reached the survey site, there was another large 

orange sign saying "Paid Volunteer Survey" at the entrance to the survey site. In the survey site facing 

approaching traffic is a large banner that says "National Roadside Survey" (approximately three feet by 

five feet). Typically there are flares placed in the roadway as the motorist approached the survey site. 

For safety purposes, where there were multiple lanes of traffic approaching the survey site, trat'fic may 

have been diverted to a single curbside lane through use oflarge orange traffic cones. 

The typical survey site accommodated approximately eight cars at a time. When the survey parking 

places were occupied, no additional vehicles were allowed into the survey site (approaching vehicles 

were waved on to continue down the street). When a survey team member was available, the next 

eligible car was allowed into the survey site (waved in at the curb cut entrance to the parking area). This 

was done so that someone was immediately available to speak to the driver of a car that pulled into the 

survey site. Drivers of trucks or commercial vehicles were not eligible to participate. 

As soon as a driver pulled into the survey site a survey team member approached their vehicle, greeted 

them and briefly explained what the survey was all about. They were asked if they wished to 

participate, if they agreed they were directed into one of the parking places. If they were not interested 

in participating they were thanked for stopping by and directed out of the survey site back onto the 

street. 

At each survey site there were two law enforcement officers, in uniform, with marked police vehicles. 

The officers and vehicles were not allowed in the survey site but were located adjacent to the survey site 

where they were clearly visible. Depending on the local law enforcement agency practices and 

procedures, the police vehicle might have had their emergency lights flashing. Some law enforcement 

agencies insisted that their officers (rather than a survey team member) direct traffic at the entrance to 

the survey site (either waving an eligible vehicle into the site or waving approaching vehicles to not stop 

or attempt to enter the survey site when all of the survey team members were busy). The officers were 

present for the safety of the survey team and participants. 

After hearing a description of the study purpose and procedure, the driver had to provide verbal consent 

in order to participate. During the survey the drivers were asked a number of questions, to provide a 

breath sample, oral fluid sample and blood sample. At each stage they had to verbally acknowledge 

they understood what had been told to them and consented to continue. The driver was free to decline 

any part of the survey while completing the rest of the survey. 

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During the 2013-2014 National Roadside Survey a small number of drivers generated some sensational 

and inaccurate publicity about the survey. Unfortunately, these individuals garnered fairly extensive 

publicity. No attempt to discern the accuracy of these reports were made before they were recirculated 

through social media and as "news reports." In a subsequent study using essentially the same 

procedures, extensive publicity was generated in advance of the study in order to prevent 

misinformation being spread. State and local press were invited to attend a "mock" survey site and go 

through the study protocol themselves. During and after this subsequent roadside survey there were no 

complaints or inaccurate stories spread by the media. 

38 
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'TiieHefitage Foundation 

BACKGROUNDER No. 3316j MAY 16, 2018 

The Need to Treat Driving Under the Influence of Drugs as 

Seriously as Driving Under the Influence of Alcohol 

Paul J. Larkin, Jr., Robert L. DuPont, MD, and Bertha K. Madras, PhD 

Abstract 

After 40 years of education, prevention, and intervention by law enforcement authorities, American society has seen a significant decline 

in alcohol-related crashesandfatalities. But various drugs can also severely impair the brain, and drugged driving can be as deadly as drunk 

driving. It is time to address the complex problem of drugged driving 

and commit ourselves to keeping that preventable behavior from offsetting the reduction in morbidity and mortality that our efforts against 

drunk driving have produced. Reasonable steps can be taken to keep 

someone from maiming or killing innocent people by using drugs and 

driving. We should not let the perfect be the enemy of the good-certainly not where what is good and doable will save lives. 

Driving Under the Influence of Alcohol (DUI or DUIA) 

Ever since Noah became the first vintner,1 Western society has 

known that alcohol impairs one's judgment. In the first century A.D., 

Flavius Josephus expresses the need to teach one's children to drink 

wine in moderation. 

The disabling effect of alcohol is particularly evident and especially dangerous when a person gets behind the wheel of a multi-ton steel 

vehicle while under its influence. 2 Alcohol-impaired driving is dangerous to the driver, any passengers travelling with him or her, anyone else on the roadway, and pedestrians. Alcohol hampers attention, 

signal detection, reaction time, hazard perception, object-tracking 

skills, concentration, and hand-eye coordination.' Aggravating the 

impairing effects of alcohol are its abilities to reduce the perceived 

negative consequences of risk-taking and to "sneak up" on a driver by 

degrading his driving skills before he becomes aware of its effect.' 

This paper, in its entirety, can be found at http://report.heritage.org/bg3316 

The Heritage Foundation 

214 Massachusetts Avenue, NE 

Washington, DC 20002 

(202) 546-4400 I heritage.org 

Nothing written here is to be construed as necessarily reflecting the yiews of The Heritage 

Foundation or as an attempt to aid or hinder the passage of any bill before Congress. 
118 


35235.087

BACKGROUNDER I NO. 3316 

MAY16,20l8 

Drunk driving imposes severe costs on the parties 

injured or killed in an alcohol-induced motor vehicle 

collision, as well as on the nation as a whole. Approximately 29 people die every day in alcohol-impaired 

vehicle crashes: one every 50 minutes or more than 

10,000 per year.5 Using the most recent cost data, 

alcohol-induced morbidity and mortality costs the 

nation $44 billion per year,' which dwarfs the revenue earned from alcohol taxes? 

To address that problem, states long ago prohibited "driving under the influence" of alcohol or "driving while intoxicated," better known by their acronyms DUI or DWL" Based on compendia of research 

on alcohol-impaired driving, the U.S. Department of 

Transportation arrived at two seminal conclusions: 

• Evidence of impairment at blood alcohol concentrations (BACs) of 0.05 grams per deciliter (g/dL) 

and higher was found with respect to reaction 

time, tracking, concentrated attention, divided 

attention, information processing. vision, perception, and psychomotor performance and on various driver performance measures;9 and 

• Every state should consider adopting illegal per se 

laws at the 0.08level for drivers aged 21 and older. w 

In response, all 50 states and the District of 

Columbia have made it a crime to drive with a specific blood-alcohol concentration level of 0.08 gj 

dL.n Those laws deem a person intoxicated as a matter of law, regardless of whether he was impaired as 

a matter of fact, if his BAC level equals or exceeds 

that concentration. 

The state and federal governments are not the 

only ones that have fought alcohol-impaired driving. 

The aggressive efforts of private organizations such 

as Mothers Against Drunk Driving have changed the 

societal attitude toward drunk driving." What was 

once treated as an anodyne peccadillo or an occasion 

for humor-13 is now properly seen as a serious crime.H 

Driving Under the Influence of Drugs 

(DUID) 

Numerous substances aside from alcohol can also 

impair a person's driving skills, including a variety of 

illicit drugs as well as lawfully prescribed tranquilizers and soporifics (sleep-inducing drugs)." For that 

reason, states have made it a crime to drive under 

their infiuence. 16 

The problem of "drugged driving" or DUID is not 

a trivial matter. The National Highway Traffic Safety 

Administration conducted a roadside survey in 2013 

and 2014 and discovered that 20 percent of drivers 

surveyed tested positive for potentially impairing 

drugs. 17 It is quite troubling to find that one out of 

every five drivers has used a drug that could adversely affect his ability to drive safely. 

Three of the drugs that are particularly troublesome are benzodiazepines (minor tranquilizers); 

opiates (or opioids);1

' and marijuana. The following 

sections discuss the available evidence regarding 

their role in drug-impaired driving. 19 

Benzodiazepines. Two meta-analyses showed 

that benzodiazepines are associated with an elevated risk of traffic crashes and an increase in l(accident 

driver-responsibility." Co-ingestion of benzodiazepines and alcohol was associated with a 7.7-fold 

increase in the accident risk.20 

Opioids. Opioids, even when lawfully prescribed 

by a physician, can impair the skills and judgment 

necessary to handle a motor vehicle safely. 21 Given 

the rise in the nonmedical use of prescription drugs 

and use of illegal opioids and related analogues (for 

example, heroin and fentanyl) over the past decade, 

it should come as no surprise that over the past year, 

there have been numerous media reports of drivers being involved in wrecks where opiates or opioid drugs were involved." As proof, a 2017 study 

published in the American Journal of Public Health 

found a sevenfold increase from 1975 to 2015 in the 

prevalence of opioids in the blood of drivers involved 

in fatal crashes in several states.23 The reports also 

stated that hydrocodone, oxycodone, and morphine 

were the most commonly detected prescription 

opioids. 2 .. 

Marijuana. Marijuana can also impair a driver's 

ability to handle a vehicle safely." Given the decisions 

by various states over the past 20 years to authorize 

the medical or recreational use of marijuana, most 

of the discussion of driving under the influence of 

drugs (DUID) has focused on the impairing effect 

of its active ingredient, ~'.'-tetrahydrocannabinol or 

THC.26 THC hampers the ability of drivers to process 

and respond to unexpected or rapidly changing driving scenarios quickly and effectively." 

Polydrug Use. The evidence also shows that people who use drugs, whether illicit or legal, often do 

not limit their intake to one particular drug." Polydrug use is common, perhaps particularly in the case 
119 


35235.088

BACKGROUNDER I NO. 3316 

MAY16,20l8 

of alcohol and marijuana. 29 Alcohol and marijuana 

are the two most frequently used substances that 

degrade a driver's ability to operate a vehicle. Their 

combination can have an additive (if not synergistic) 

effect on a driver, leaving him incapahle of driving 

safely even though neither drug alone might impair 

his ability to handle a vehicle. 30 A person can be incapable of driving safely even though his BAC level is 

only0.05 g/dL if he has also recently consumed marijuana and there is T!IC in his brain. 

The result is this: Studies indicate that the combination of alcohol and THC can he impairing even 

though the amount of either drug consumed by itself 

might not cause the same degree of deterioration 

in an average driver's skills.31 The extent of current 

polysubstance use, especially with a rising tide of 

marijuana and opioid use, is unknown. The last welldesigned roadside tests for polysubstance use were 

performed in 2007. 

Contemporary Problems: 

Opioid Abuse and State Marijuana 

Legalization Initiatives 

State marijuana legalization measures have 

exacerbated the DUID problem. 32 In May 2016, the 

American Automobile Association Foundation for 

Traffic Safety concluded that after Washington State 

legalized marijuana, the proportion offatal crashes 

involving drivers who had used that drug doubled." 

A recent study by Smart Approaches to Marijuana 

(SAM) concluded that state marijuana legalization initiatives have contributed to increased risk 

of morbidity and mortality on their roadways. 34 

"Drugged driving and motor vehicle fatalities have 

increased in states that have legalized recreational 

marijuana,"" SAM concluded. Relying on the data 

collected from the Fatality Analysis Reporting System, SAM further reported that approximately 50 

percent of fatal crashes nationwide involved drivers 

who tested positive for THC." 

According to SAM, the numbers in Colorado were 

particularly troublesome. From 2013 to 2015, there 

was an increase of 88 percent in the number of Colorado drivers testing positive for marijuana. 37 The 

four-year averages before and after Colorado legalized marijuana in 2012 saw a 66 percent increase in 

marijuana-related traffic deaths.38 Drivers, passengers, and other motorists were not the only parties 

at risk. Other states that legalized recreational marijuana also saw an increase in pedestrian fatalities. 39 

Admittedly, the evidence is not dispositive that 

recent drug use inevitably and invariably causes 

motor vehicle collisions; there is disagreement on 

that score.4

° For example, a recent study for the 

National Bureau of Economic Research concluded 

that there was no material difference hetween the 

marijuana-related, alcohol-related, and overall traffic fatality rates before and after the Colorado and 

Washington marijuana legalization initiatives went 

into effcct.41 Advocates of marijuana legalization use 

that study and others to argue that there is no proven causal relationship between the new state medical and recreational marijuana laws and an increase 

in highway morbidity or mortality. Inconsistencies 

of testing for other drugs if alcohol is found above 

the legal limit may confound attribution of crashes 

to other drugs in the system. Also, THC concentrations are rising rapidly; levels of cannabidiol, which 

can attenuate the florid pharmacological actions of 

THC," are declining steeply, and traffic morbidity 

and mortality records of five to 10 years ago may not 

reflect this growing trend." 

But there are two other factors to consider. The 

first one is that different states are entitled to hold different opinions regarding their willingness to expose 

innocent parties to the risk of being injured or killed 

by a driver whose ability to operate a vehicle safely has 

been impaired by a lawful or illicit drug." The second 

factor is that there is unanimity regarding a crucial 

moral judgment: No one should drive under the influence of any substance that could impair a motorist's 

ability to operate his vehicle safely. Numerous government authorities45 and private experts 46 have recommended against anyone driving while under the 

influence of any impairing drug, illicit or legal. Even 

parties who advocate the liberalization of current 

federal and state marijuana laws recognize that no 

one should drive while impaired by marijuana.•·, 

The Need to Treat DUID and DUIA as 

Posing Equally Serious Public Safety Risks 

Unfortunately, there is no easy solution to the DUID 

problem. Nonetheless, some reasonahle steps can be 

taken to reduce the risk of drug-involved collisions. 

Below is a list of proposals that should occasion a consensus among the parties interested in addressing this 

problem, as well as bipartisan support in the legislatures 

and elsewhere in government. Eacl1 one will take a step 

toward improving roadway safety. Each one deserves 

serious consideration at all levels of government. 
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BACKGROUNDER: NO. 3316 

MAY16,2018 

There is a particular need for Congress to address 

this problem. Interstate highways have that name 

for a reason. People who drive while under the influence of marijuana do not limit their trips to states 

that have legalized that drug, nor do people who 

use potentially impairing prescription medications 

drive only within their home states. They cross state 

lines, sometimes several, sometimes far from home. 

The result is to put at risk residents of states who had 

no say over whether marijuana should be legalized 

or whether a person should have let someone else 

drive while he was using an impairing prescription 

drug. No one state or group of states can adequately 

address this problem. While any one state can adopt 

the proposals mentioned below, only Congress can 

address the matter nationally. 

Interstate roadways are arteries of national commerce, and Congress can regulate the safety of travel 

along those roads under the Commerce Clause." Congress therefore could direct the states to adopt these 

proposals." But there is another option available 

to Congress: It can condition the receipt of at least 

a portion of federal highway funds on every state's 

compliance with these proposed safety measures. 

Precedent exists for that approach. In the 1980s, 

Congress enacted legislation establishing a national 

minimum drinking age of 21 and penalizing states 

that decline to comply with that mandate by directing the withholding of a small portion of the highway funds that the state otherwise would receive. 50 

The states argued that the statute interfered with 

their prerogative, granted by the Twenty-First 

Amendment, 51 to decide how to regulate the instate consumption of alcohol and also imposed an 

"unconstitutional condition" on their receipt of federal funds, in violation of the Tenth Amendment." 

In South Dakota v. Dole, 53 however, the Supreme 

Court of the United States upheld the constitutionality of that law. The Court ruled both that Congress has the authority to condition the receipt 

of a portion of federal highway funds on a state's 

compliance with a federal minimum drinking age 

requirement and that Congress's decision to impose 

that mandate did not violate the Tenth Amendment 

because it was a reasonable condition on the receipt 

of federal funds. 54 

The South Dakota v. Dole rationale would apply 

here. States that legalize the recreational or medical use of marijuana place at risk drivers, passengers, 

and pedestrians in other states. It is also reasonable 

to demand that states comply with the conditions 

noted below as a prerequisite to receipt of all federal highway funds for much the same grounds that 

the Court found persuasive in South Dakota v. Dole. 

Finally, such a condition would not trespass on the 

rights of drivers because driving under the influence 

of a drug is already unlawful in all 50 states and, in 

the case of drugs such as marijuana or heroin, the 

drug is contraband under federal law. 

To be sure, the pharmacokinetics and pharmacodynamics of alcohol differ from opioids, marijuana, 

and other drugs. The result is that we cannot automatically apply to drugs other than alcohol the same 

countermeasures that we have adopted for alcohol 

itself. What we can do is treat impaired driving as a 

serious public safety problem regardless of the chemical structure of the compound that keeps someone 

from handling his vehicle safely. By so doing, we 

will demonstrate our commitment to lowering highway morbidity and mortality whatever the chemical 

agent might be that impairs safe driving. 

How to Respond to the Public Safety Risks 

ofDUID 

What follows is a set of six proposals to address 

DUID. The common denominator is treating DUID 

in the same manner as DUI or DUIA. Although the 

procedures used in the case of alcohol-impaired 

driving cannot be transferred automatically to 

drug-impaired driving because of the different 

pharmacokinetics and pharmacodynamics of the 

two types of substances, these proposals can and 

should be used to address drug-impaired driving 

because they do not raise the problems posed by 

uncritical application to the very different context 

of DUIA protocols. 

• Proposal!: Apply to every driver under 21 years 

old who tests positive for any illicit or impairing 

drug, including marijuana and impairing prescription drugs, the same zero-tolerance standard 

specified for alcohol, the use of which in this age 

group is illegal. 

• Proposal 2: Apply to every driver found to have 

been impaired by drugs, including marijuana, the 

same remedies and penalties that are specified for 

alcohol-impaired drivers, including administrative or judicial license revocation. 

4 
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• Proposal 3: Test every driver involved in a crash 

that results in a fatality or a major traffic accident 

(including injury to pedestrians) for alcohol and 

impairing drugs, including marijuana, a panel of 

opioids, and prescription drugs. 

• Proposal4: Test every driver arrested for driving 

while impaired for alcohol and impairing drugs, 

including marijuana. 

• Proposal 5: Use reliable oral fluid testing technology at the roadside for every driver arrested for 

impaired driving. 

• Proposal 6: Develop national standardized testing, synchronize the testing with drug overdose 

testing, and develop a national database that 

collects the information for program and policy decisions. 

States, as required by federal law, must have age 21 

as the minimum drinking age. It is illogical to treat 

differently someone under that age who tests positive for heroin, other opioids, cocaine, methamphetamine, LSD, THC, or benzodiazepines, since they can 

impair a driver's ability to operate a vehicle and are 

illegal under federal law. If a state automatically suspends a driver's license for 30, 60, 90, or 180 days (or 

longer) if he is convicted of driving under the influence of alcohol, the state should use the same penalty 

for someone convicted of DUID. Polydrug use is sufficiently common thal an arresting offtcer should test 

every driver involved in a crash resulting in a fatality 

or arrested for impaired driving not only for alcohol, 

but also for impairing drugs. The principal objection 

to testing for a wider range of drugs is financial, not 

legal, and the states can use federal highway funds for 

that purpose. Finally, the development oftechnology 

to perform roadside oral fluid testing (for example, 

with a buccal swab) would enable an arresting officer 

to obtain supportive (or nonsupportive) evidence of 

the presence of an impairing substance in an expeditious and relatively nonintrusive manner. 55 Together, 

those proposals would help address the problem that 

DUID poses for society. 56 

Obviously, drugs differ in important ways from 

alcohol and differ from each other. The pharmacodynamics (what drugs do to the body) and pharmacokinetics (how the body processes drugs) of drugs 

are not the same, and they also differ from the cor· 

responding pharmacology of alcohol. That makes it 

difficult to apply standardized protocols and procedures to all problems attributable to psychoactive 

substances." But the above proposals do not make 

that attempt. Instead, they seek to treat substances 

that impair brain function-alcohol and other drugsalike for purposes of the law of impaired driving, not 

for medical or scientific purposes, and focus this 

effort insofar as they can on how these substances 

endanger highway safety. 

Conclusion 

The paterfamilias of television's Simpson family, 

Homer Simpson, once said, while holding a bottle of 

beer in his hand, "To alcohol! The cause of, and solution to, all of life's problems,"" He was almost halfright. Alcohol is not the solution to any of life's problems, and while it does not cause all of them, it does 

cause many. One of them happens far too often on 

our roads. We have known for more than a century 

that combining alcohol and motor vehicles is always 

highly problematic and far too often fatal. For the 

past 40 years, however, American society has dedicated itself to addressing that problem through education, prevention, and, when necessary, interven· 

tion by law enforcement authorities, As a result, we 

have witnessed a considerable decline in alcoholrelated crashes and fatalities. 

With regret, we have learned that various drugs 

can also severely impair the brain and that drugged 

driving can be as deadly as drunk driving. Physicians, scientists, policymakers, and government 

offtcials agree that DUID is a danger to drivers, passengers, pedestrians, and their families regardless 

of their views about drug legalization and regardless 

of where they live. There is also a societal consensus 

that reasonable steps to reduce that danger do exist 

and can be effective. 

Accordingly, it is time to address the complex 

problem of drugged driving. We should commit ourselves to an effort to keep that preventable behavior from offsetting the reduction in morbidity and 

mortality that we have seen from our efforts to stop 

drinking and driving. Each problem deserves the 

same commitment. No one action could altogether 

eliminate drinking and driving, and American society took what steps were available to reduce its incidence where possible. We should pursue the same 

course for DUID. Reasonable steps can be taken to 

keep someone from maiming or killing innocent 
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people by using drugs and driving. We should not let 

the perfect be the enemy of the good-certainly not 

where what is good and doable will save lives. 

-Paul J. Larkin, Jr., is the John, Barbara, and 

Victoria Rumpel Senior Legal Research Fellow in the 

EdwinM eeseiii Center for Legal andJudicial Studies, 

of the Institute for Constitutional Government, at 

The Heritage Foundation. Robert L. DuPont, MD, 

is President of the Institute for Behavior and Health, 

Inc., andformer Director of the National Institute on 

Drug Abuse. Bertha K. Madras, PhD, is a Professor 

of Psychobiology in the Department of Psychiatry 

at the Harvard Medical School. Dylan Brandt, An 

Administrative Assistant at The Heritage Foundation, 

and Peter Newman, a Summer Intern in the Meese 

Center, provided valuable research assistance for 

this paper. 
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Endnotes 

Genesis 9:20-25 (KJV); see also, e.g., JERROLD 5. MEYER & LINDA F. QUENZER, PSYCHOPHARMACOLOGY: DRUGS, THE BRAIN, AND BEHAVIOR 266 (2d 

ed. 2018) (suggesting that mead might have been brewed by 8,000 B.C.). 

2. See, e.g., Consensus Dev. Panel, Consensus Report: Drug Concentrations and Driving Impairment, 254 J. AM. MED. Ass'N 2618, 2619 (1985) 

[hereafter AMA Consensus Report] ("Traditionally, ethanol has been the drug of greatest concern in relation to driving impairment. Ethanol is 

by far the most frequently documented drug m fatal motor vehicle accidents."); Eric J. Gouvm, Drunk Driving and the Alcoholic Offender: A New 

Approach to an Old Problem, 12 AM. J.L & MED. 99,100 (1986) (quoting a 1904 editorial from the Quarterly Journal of Inebriety) ("Inebriates and 

moderate drinkers are the most incapable of all persons to drive motor wagons. The general palsy and diminished power of control of both the 

reason and senses are certain to invite disaster in every attempt to guide such wagons.") (internal quotation marks omitted)). 

3. See, e.g., ROBERT l. DuPONT, THE SELFISH BRAIN: LEARNING FROM ADDICTION 135 (Rev. ed,, 2000); R. Andrew Sewe!t et al., The Effect of Cannabis 

Compared with Alcohol on Driving, 18 AM. J. ON ADDICTIONS 185, 188 (2009). 

4. See, e.g., DuPONT, supra note 3, at 134-36; Robert D. Budd et al., Drugs of Abuse Found in Fatally Injured Drivers in Lo5 Ange/e5 County, 23 DRUG & 

AlCOHOl DEPE~DENCE 153,155 (1989). 

5. NAT'l HIGHWAY TRAFFIC SAFETY AoM'N, DEP'T OF TRANSP., DRUNK DRIVING (2017) [hereafter NHTSA, DRUNK D'I.IV!NG) (describing 2016 data), 

https://www.nhtsa.gov/risky-driving/drunk-driving. 

6. /d. 

7. See Paul J. Larkin, Jr., Swift, Certain, and F01r Pumshment-24/7 Sobriety and HOPE: Creative Approaches to Alcohol- and Illicit Drug-Using Offenders, 

105 J. OF (RIM. L. & CRIMINOLOGY 39, 42-43 (2016). 

8. See, e.g., Motor Vehicle Act of 1915, CAL STATE LAWS 1915 § 17, as amended by 1915 Cal Stat. 214 ("No person who is under the influence 

of intoxicating liquor and no person who is an habitual user of narcotic drugs shall operate or drive a motor or other vehicle on any public 

highway within this state."); An Act Relative to Automobiles and Motor Cycles, ch. 412, § 4, 1906 Mass. Acts 419, 422 (making the operation 

of an automobile or motorcycle "while under the influence of into:i'lcatmg liquor" a misdemeanor); Robert L. DuPont et al., The Need for 

Drugged Driving Per Se Laws: A Commentary, 13 TRAFFIC INJURY PREVENTION 31,32 (2012) (summarizing state laws prohibiting alcohol-impaired 

driving); Robert B. Voas et aL, Prescription Drugs, Drugged Driving and Per Se Laws, 19 INJ. PREVENTION 218,218 (2014) ("Impaired driving laws 

date back to the early part of the 20th century when states first criminalized alcoho!-lmpa1red driving."). For an example of a current statute, 

see VA. CODE ANN.§ 18.2-266 (2017) ("It shall be unlawful for any person to drive or operate any motor vehicle, engine or train (l) while such 

person has a blood alcohol concentration of 0.08 percent or more by weight by volume or 0.08 grams or more per 210 liters of breath as 

md1cated by a chem1cal test adm1mstered as prov1ded in this article, (ii) while such person is under the influence of alcohol .... "). 

9. See HERB MOSKOWITZ & CHRISTOPHER D. ROBINSON, EFFECTS OF LOW DoSES OF ALCOHOL ON DRIVING RELATED SKILLS: A REVIEW OF THE EVIDENCE, 

DOT HS 807 280 (July "\988). Th1s large-scale literature review was conducted on the effects of alcohol on dnving skills. Evidence of 

impairment at blood alcohol concentrations (SACs) of 0.05 g/dL and higher was found with respect to reaction time, tracking, concentrated 

attention, divided attention, information processing, vision, perception, and psychomotor performance and on various driver performance 

measures. In many of these functional areas, impairment was found to appear at BACs of 0.02 or 0.03, The study concluded that there is no 

"safe" limit of BAC, other than zero, tor driving-related skills. 

10. See MONROE 6. SNYDER, NAT'L HIGHWAY TRAFFIC SAFETY ADM'N, DRIVING UNDER THE INFLUENCE: A REPORT TO CONGRESS ON ALCOHOL LIMITS, DOT 

HS 807 879 (Oct. 1992). This report was prepared in response to a congressional mandate to conduct a study to determine the BAC at or 

above which an individual who was operating a motor vehicle should be considered to be driving under the influence. The report discusses 

scientific literature on the influence of BAC on driver performance and crashes, reviews the existing BAC legislation, and discusses data on the 

expected institutional responses to alternative limits such as 0.08, 0.04, and 0.00 g/dl. The report concluded that all states should cons1der 

adopting illegal per se laws at the 0.08 level for drivers aged 21 and older. 

11. See 23 U,S,C. § 163(a) (2012); Missouri v. McNeely, 569 US 141,160 & n.8 (2013); 23 C.F.R. §1225.1 (2012); NAT'L HIGHWAY TRAFFIC SAFETY 

ADMIN., U.S. DEP'T OF TRANSP., DOT HS 811 870, ALCOHOL-IMPAIRED DRIVING 1 (2013). 

12. See BARRON H. LERNER, ONE FOR THE ROAD: DRUNK DRIVING SINCE 1900 (2012). 

13. The 1981 film Arthur about the drunken life of the fictional character Arthur Bach is a classic example of that now-deplored mindset. 

14. See, e.g., Paul J. Larkin, Jr., Liberalizing Marijuana Use and Improving Driving Safety; Two Contemporary Public Policies on a Collision Course, HERITAGE 

FOUND.! EGAL MEMORANDUM No.156 (June 25, 2015), http:j/thf_media.s3.amazonaws.com/2015/pdf/lM156.pdf. 

15. See, e.g., GoVERNORS HIGHWAY SAFETY AsS'N, DRuG~IMPAIRED DRIVING: A GUIDE FOR STATES (Apr. 2017); NAT'L HIGHWAY TRAFF!C SAFETY AoM'N, 

DEP'T OF TRANSP., DRUGGED DRIVING (2017) [hereafter NHTSA, DRUGGED DRIVING] ("Prescription drugs, over-the-counter medications, and 

illegal drugs may cause impairment alone or in combination with each other and/or with alcohol."), https://www.nhtsa.gov/risky-driving/ 

drugged-driving; MARCElLINE BURNS, MEDICAL-lEGAl ASPECTS OF DRUGS 153 (2003) ("Without exception, all il!icit drugs have the potential 

to impair the cognitive and behavioral skills that allow a person to engage m normal daily activ1t1es, such as driving and working."); Markku 

Unnoila, Tranquilizers and Driving, 8 AcCI:J.. ANAL & PREY. 15 (1976). 

16. See, e.g., VA. CODE ANN.§ 18.2-266 {2014) ("It shall be unlawful for any person to drive or operate any motor vehicle, engine or train ... OiD 

while such person is under the influence of any narcotic drug or any other self~administcred intoxicant or drug of whatsoever nature, or any 

combination of such drugs, to a degree which impairs his ability to drive or operate any motor vehicle, engine or train safely, (iv) while such 
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person is under the combined influence of alcohol and any drug or drugs to a degree which impairs his ability to drive or operate any motor 

vehicle, engme or train safely, or (v) while such person has a blood concentration of any of the following substances at a level that is equal to 

or greater than: (a) 0.02 m!!ligrams of cocaine per liter of blood, (b) 0.1 milligrams of methamphetamine per liter of blood, (c) 0.01 milligrams 

of phencyclidine per liter of blood, or (d) 0.1 milligrams of 3,4-methylenedioxymethamphetamine per liter of blood."); Robert B. Voas et aL, 

Prescription Drugs, Drugged Driving and Per Se Lows, 191NJ, PREVENTION 218,218 (2014). 

17. See NAT'L HIGHWAY TRAFFIC SAFETY ADMIN, DEP.'T OF TRANSP.., DOT HS 811415, DRUG INVOLVEMENT OF FATALLY INJURED DRIVERS l (2010) 

("Nationwide in 2009, 63 percent of fatally injured drivers were tested for the presEince of drugs. Overall, 3,952 fatally injured drivers tested 

positive for drug involvement in 2009. This number represents 18 percent of all fatally injured drivers (Table 1) and 33 percent of those with 

known drug test results (Table 2) in 2009."). 

18. Opiates are derivatives of the resin of poppy plants, When manufactured into morphine or codeine, they are used as painkillers. Opiates 

can a! so be manufactured into heroin, which is a Schedule I controlled substance and cannot be lawfully prescribed in the United States. See 

21 U.S.C. § 841 (2012). Opioids are synthetic painkillers that are manufactured in a laboratory. Examples are OxyContin, Methadone, and 

Buprenorphine. Hereafter, the term "opioids" will be used to refer to both types of drugs, 

19 Benzodiazepines, opiates, and cannabis do not exhaust the range of possibilities. Hallucinogens, such as lysergic acid diethylamide, better 

known as LSD, along with the "dizzying alphabet soup of chemica! variations" on LSD and other hallucinogens, impair safe driving as well. 

DuPONT, supra note 3, at 189; see id. at 187~96. 

20. See Tharaka L. Dassanayake et al., Effects of Benzodiazepines, Antidepressants and Opioids on Driving· A Systematic Review and Meta~analysis of 

Epidemiological and Experimental Evidence, 34 DRUG SAFETY 125 (2011). 

21. See, e.g., JOHN KAPLAN, THE HARDEST DRUG; HEROIN AND PUBliC POLICY 176 (1983) ("Although, in the most crowded inner cities, it is likely that 

most addicts do not drive cars, there are many, perhaps a majonty, in places such as California, who do. The difficulty here is that many 

addicts on heroin are not in good enough condition to drive safely .... Even though addicts who are taking stable doses of heroin will not be 

in good enough condition to drive JUSt after their injection, and should they be delayed in traffic on the way to the clinic, the beginnings of 

withdrawal may make them a danger then."); M£Y£R & QuENZER, supra note 1, at 308~09 (describing the euphoric, dysphoric, and sedative 

effects of opium); Stanford Chihuri & Guohua U, Trends in Prescription Opioids Detected in Fatally Injured Drivers in 6 US States: 1995-2015,107 

AM. J. Pus. HEALTH 1487,1487 (2017) ("Prescription opioids (e.g., oxycodone, hydrocodone, and methadone) are potent drugs ... [and] can 

cause drowsiness, nausea, and impa1red cognition and interfere with executive functiomng. Hence driving under the influence of prescription 

opioids is a serious safety concern.") (footnote omitted). 

22. See, e.g., Shaddi Abusaid, DA: Driver Under Influence of Pifis Gets 15 Years for Fatal Wreck, MARIETTA DAILY JouRNAL, Apr.1, 2018, 

http://www.mdjonline.com/news/da-driver-under-influence-of-pills-gets-years-tor-fatal/article_fa0ed6f0-36b4-lle8-8b1d-07e084fc513d. 

htm!; Andy Brownfield, Motorist Receives Maximum Sentence in Hit-Skip that Killed OTR Business Owner, CiNCINNATI BusiNESS CouRIER, Feb. 23, 

2018, https://www.bizjournals.com/cincinnati/news/2018/02/23/motorist-receives-maximum-sentence-in-hit-skip.html; Bucks County 

District Attorney's Office, Impaired Driver Who Ki/Jed 22-Year-Oid Gets 77.5 to 40 Years, Jan, 29,2018, https://bucks.crimewatchpa.com/ 

da/29567/post/impaired-driver-who-kiUed-22-year-old-gets-175-40-years; Chris Gadd, Dye Guilty af Vehicular Homicide in Opioid-lnfluenced 

Dickson Ca. Wreck, TENNESSEAN, Apr. 20, 2017, https://www,tennessean.com/storyjnews/local/dickson/2017/04/20/dye-guilty-vehicu!arhomicide-opiold-influenced-dickson-co-wreck/100696286/; Carl Hessler, Jr., Bucks Man Awaits Fate far DUI Crash that Injured 2 in Hatfield, 

THE MERCURY, March 14,2018, available at http://www.pottsmerc.com/general-news/20180314/bucks-man-awaits-fate-for-dui-crash-thatinjured-2-in-hatficld; Lynn Hulsey, Driver in Crosh that Blocked 1-70 Used Fentanyl Earlier, Patrol Says, DAYTON DAILY News, Aug.11, 2017, 

https:j/www.daytondailynews.com/news/crime--lawjdriver-crash-that-blocked-usecHentany!-earlier-patrol-says/4aQCIGf9uK10P9RKHso3jO/ 

new.html; Justin Kmltch, Intoxicated Driver Sentenced to 11 Years in Fatal Burr Ridge Crash, DAILY HERAlD, Feb. 5, 2018, http://www.dailyherald. 

com/news/20180205/intoxkated-driver-sentenced-to-11-years-in-fatal-burr-ridge-crash; Kevin Martin, Matthew Glaze of Elyria Guilty an All 

Counts in Fatal Crash, THE MORNING JouRNAL, Jan. 30, 2018, http:j/Www.morningjournal.com/article/MJ/20180131/NEWS/180139855; Diane 

Pineiro-Zucker, Opiold-lmpaired Driver Gets up to 7 Years in Prison for Crash that Killed Phoenicia Woman, DAILY FREEMAN, Oct. 17, 2017, http://Www. 

dailyfreeman.com/article/DF/20171017/NEWS/171019705; Tracey Read, Eastlake Woman Admits Causing Wrong-Way Crash on Interstate 90 

that Injured Three, NEWS HERALD, Feb. 26,2018, http://www.news-herald.comjarticle/HR/20180226/NEWS/180229559; Catalina Righter, Man 

Pleads Guilty to Negligent Homicide Charge in Death of Unborn Baby, CARROLL CNTY. TIMES, Mar. 6, 2018, http://www.carrollcountytimes.com/ 

news/crime/cc-be!lusci-plea-20180306-story.htm!; Mindy Schack & Noelle Medina, Virginia Anderson Sentenced to 7 Years far Fatal DUI Crash, 

KRCRTV, June 22, 2017, http://krcrtv.com/news/shasta-county/virginia-anderson-sentenced-to-7-years-for-fatal-dui-crash; Jim Schultz, Redding 

Man Sentenced to 15 Years to Life for Fatal Wreck, RECORD SEARCHLIGHT, Mar. 16, 2018, https://www.redding.com/story/news/local/2018/03/16/ 

rcdding-man-sentenced-15-years-life-fatal-wreck/433980002/; Dispatch Staff, Cops and Courts-Fine, Probation After Crash, THE DisPATCH, Jan. 

26, 2018, https:j/mdcoastdispatch.com/2018/01/25/cops-courts-january-26-2018/; Walt Zwirko, Car Thief Gets 30 Years for Crash that Kills San 

in Denison, KTEN NEWS, Mar. 12,2018, http://www.kten.com/story/37707983/car-thief-gets-30-years-for-crash-that-ki!led-son-in-denison; 

Stephanie Weaver, Mohnton Man Admits to Driving Under the Influence of Drugs, READING EAGLE, Dec. 22, 2017, http://www.readingeagle.com/ 

news;artide/mohnton~man-admits·to-driving-under-the-influencc-of-drugs. 

23. See Chihuri & Li, supra note 21, at 1491 ("During 1995 to 2015, there has been a 7-fold increase in the prevalence of prescription opioids 

detected in drivers who died within 1 hour of the crash in California, Hawaii, ll!inois, New Hampshire, Rhode Island, and West Virginia."). 

24. ld. at 1490,1491. 

25. The psychoactive ingredient in marijuana is L\9 -tetrahydrocannabinol (THC), although other cannabino1ds also have pharmacological effects. 

An intoxicating dose of THC fs extremely small: just 100-200 micrograms ().ig). THC affects receptors in the brain 1n regions involved in 
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cognition, memory, reward, pain perception, and motor coordination. The THC content in marijuana varies according to phenotype, soil, 

climate, and cult1vat1on technique. The highest concentration of THC is in the flowering top of the female plant. See, e.g., BRITISH MED. Ass'N, 

THERAPEUT!C USES OF (ANNAB IS 7,10-11 tbLl (1997) [hereafter BRITISH MEO. Ass'Nl; LESLIE l. IVERSEN, THE SCIENCE OF MARIJUANA 27-65,189 (2d 

ed. 2008); Wayne Hall & Louisa Degenhardt, Adverse Health Effects of Non-Medical Cannabis Use, 374 LANCET 1383, 1383-84 (2009); Richard 

L Hawks, The Constituents of Cannabis and the Disposition and Metabolism of Cannabinoids, in NAT'L IN ST. ON DRUG ABuSE, U.S. DEP'T OF HEALTH 

& HUMAN SERVS. THE ANALYSIS OF (ANNABINOIDS IN BIOLOGICAL FLUIDS, 125, 125-26 (Richard l. Hawks ed., 1982), available at http://archives. 

drugabuse.govjpdf/monographs/42.pdf; Zlatko Mehmedlc et al., Potency Trends of N-THC and Other Cannabinoids in Confiscated Cannabis 

Preparations from 1993 to 2008,55 J. FoRENSIC Sc1. 1209,1209 (2010J 

26. See, e.g., BRITISH MEa. Ass'N, supra note 25, at 66 ("Impairment of psychomotor and cognitive performance, especially in complex tasks, has 

been shown in normal subjects in many tests. Impairments include slowed reaction time, short term memory deficits, impaired attentiOn, 

time and space distortion, impaired coordination. These effects combine with the sedative effects to cause deleterious effects on driving 

ability or operation of machinery." (cltations omitted)); AAA, FOUND. FOR TRAFFIC SAFETY, PREVALENCE OF MARIJUANA INVOLVEMENT IN FATAl 

CRASHES: WASHINGTON, 2010-2014 (2016); AAA, FOUND. FOR TRAFFIC SAFETY, CANNABIS USE AMONG DRIVERS SUSPECTED OF DRIVING UNDER THE 

INFLUENCE OR INVOlVED IN COlLISIONS: ANALYSIS OF WASHINGTON STATE PATROL DATA (2016); BuRNS, supra note 15, at 153 ("Without exception, 

a !I illicit drugs have the potential to impair the cognitive and behavioral skills that a flow a person to engage in normal daily activities, such as 

driving and working."); DUPONT, supra note 3, at 144; IVERSEN, supra note 25, at 96, 163; ROBIN ROOM ET AL., CANNABIS POLICY: MOVING BEYOND 

STALEMATE 15,18-19 (''Better-controlled epidemiological studies have recently supplied credible evidence that cannabis users who drive while 

mtoxicated are at increased risk of motor vehicle crashes[.]"); D. Mark Anderson et al., Medical Marijuana Laws, Traffic Fatafities, and Alcohol 

Consumption, 56 J. OF l. & EcoN. 333 (2013); Alan W. Jones et al., Driving Under the Influence of Cannabis: A 10-Year Study of Age and Gender 

Differences in the Concentrations of TetrahydrocannQbinol in Blood, 103 ADDICTION 452,457 (2008) ("lC]annabis is an illicit drug used by people 

for the primary purpose of 'getting high' and escaping from reality, and this is not compatible with performing skilled tasks such as driving ... "); 

Robert l. DuPont et al., Marijuana-Impaired Driving: A Path Through the Controversies, in CONTEMPORARY HEAlTH IssUES ON MARIJUANA (Kevin 

Sa bet & Kevin Winter eds., 2018) (forthcoming); C Heather Ashton, Pharmacology and Effects of Cannabis: A Brief Review, 178 BRIT. J. 

PsYCHIATRY 101, 104 {2001) ("Numerous studies have shown that cannabis impairs road~dnving performance and have linked cannabis use 

with itKreased incidence of road traffic acc1dents."); Michel BCdard et al., The Impact of Cannabis on Driving, 98 CANADIAN J. Pue. HEALTH 6, 

8-9 (2007); Stephanie Blows et al., Marijuana Use and Car Crash Injury, 100 ADDICTION 605, 610 (2005) ("This population-based case-control 

study suggests that habitual marijuana use is associated with a 10-fold increase in the risk of car crash injury."); Franjo Grotenhermen et al., 

Developing Limits far Driving Under Cannabis, 102 ADDICTION 1910, 1912 (2007); Wayne Hall, What Has Research Over the Past Two Decades 

Revealed About the Adverse Health Effects of RecreatiOnal Cannabis Use?, 110 ADDICTION 19,21 (20l4) (finding that over the past decade, better~ 

designed epidemiological studies and meta-analyses have found that cannabis users who drive while intoxicated increase the risk of motor 

vehicle crashes two to three times); Hall & Degenhardt, supra note 25, at 1384-85; Rebecca L. Hartman & Marilyn A Huestis, Cannabis Effects 

on Driving Skills, 59 CL!NlCAL CHEMISTRY 478,478 (2013); Herbert Moskowitz, Marihuana and Driving, 17 ACCIDENT ANALYSIS & PREVENTION 323, 

341 (1985) ("Clearly, marijuana is a substance which produces serious behavioral toxicological effects. Any situation in which safety both 

for self and others depends upon alertness and capability of control of man-machine interaction precludes use of marijuana."); Ed Wood, 

Skydiving Without a Parachute, 4 J. ADDICTION MED. & THERAPY 1020 (2016); see generally Paul J. Larkin, Jr., Medical or Recreational Marijuana and 

Drugged Driving, 52 AM. (RIM. l. REV. 453,476-77 (2015)(collecting studies). But see NAT'L HIGHWAY TRAFFIC SAFETY ADMIN., DOT HS 812·355, 

DRUG AND ALCOHOl (RASH RISK: A (ASE·[ONTROL STUDY 67 (2016) (finding no significant increase in crash risk attributable to marijuana). 

27. See, e.g., NAT'LINST, ON DRUG ABUSE, MARIJUANA 10,12-13 (Apr. 2017) [hereafter NAT'L !NST., MARIJUANA] ("TH( also disrupts functioning of 

the cerebellum and basal ganglia, brain areas that regulate balance, posture, coordination, and reaction time. This is the reason people who 

have used marijuana may not be able to drive safely."); Letter from Director Nora D. Vo!kow, in id. at 3 ("Because marijuana impairs shortterm memory and judgment and distorts perception it can ... make it dangerous to drive."); U.S. DEP'T OF HEAlTH & HuMAN SERVS., NAT'L !NST. 

ON Dl<UG ABUSE, DRUGFACTS: DRUGGED DRIVING 2 (2013), http://www,drugabuse.gov/sites/default/files/drugfacts_druggeddriving_2014,pdf 

("Considerab!e evidence from both real and sirT'ulated dr.ving studies indiCates that marijuana can negatively affect a driver's attentiveness, 

perception of time and speed, and ability to draw on information obtained from past experiences."); WoRLD HEALTH ORG., CANNABIS: A .HEALTH 

PERSPECTIVE AND RESEARCH AGENDA 15 (1997). 

28. See Chihuri & li, supra note 21, at 1487 ("Currently, about one third of fatally injured drivers in the United States test positive for nonalcohol 

drugs, including prescnption opioids, and 20% test positive for 2 or more drugs.") (footnote omitted). 

29. See JONATHAN P. CAULKINS ET AL, RAND CORP., CONSIDERING MARIJUANA LEGALIZATION: INSIGHTS FOR VERMONT AND OTHER JURISDICTIONS 44 

(2015) ("The descriptive statistics concerning overlap in use are dear. Marijuana users are much more likely than are nonusers to drink and 

to abuse alcohoL For example, current marijuana users are five times as likely as nonusers to meet DSM~!V criteria for alcohol abuse or 

dependence (26 percent versus 5 percent); that is, one in four current marijuana users is a problem drinker (calculated using 2012 NSDUH 

data using the SAMHSA online too!). Indeed, simultaneous use is common. The national household survey asks people what, if any, other 

substat1ces they used the last time they drank alcohol. Among the 15.4 million people who used both alcohol and marijuana at some time 

in the past 30 days, 54 percent reported usmg marijuana along with alcohol the last time they drank, a proportion that rises to 83 percent 

among daily or near-daily marijuana users."); see a/so, e.g., GEORGE F. KOOB ET Al., DRUGS, ADDICTION, AND TH£ BRAIN 283-84 (2014); ROOM ET 

At., supra note 26, at 17-19; Larkin, supra note 26, at 473-80 & nn. 87-109. 

30. See, e.g.,.BRITlSH Me D. Ass'N, supra note 25, at 73 (noting the "additive effect" when manjuana and alcohol are combined); MITCH EARLEYWINE, 

UNDERSTANDING MARIJUANA: A NEW LOOK AT THE SCIENTIFIC EVIDENCE 201-11 (2002) ("Driving after consuming alcohol, particularly in 

combination with cannabis, is extremely dangerous and ill-advised. Thus, users who wish to reduce the drug's harm should never operate a 
126 


35235.095

BACKGROUNDER I NO. 3316 

MAY16,2018 

motor vehicle during intoxication."); Eugene W. Schwilke eta!., Changing Patterns of Drug and Alcohol Use in Fata!Jy Injured Drivers in Washington 

State, 51 J, FORENSIC Sci. 1191,1195 (2006) ("Combined marijuana and alcohol use are a concern in the driving population because of the 

marked synergism demonstrated between these two drugs, particularly in inexperienced users[.}") (citation omitted); see generally Larkin, 

supra note 26, at 478-79 & n.105 (collecting studies so concluding). 

31 See, e.g., Stanford Chihuri eta!., Interaction of Marijuana and Alcohol on Fatal Motor Vehicle Crash Risk: A Case-Control Study, 4 INJURY 

EPIDEMIOLOGY 8 (2017) (online); Guohua U et at., Role of Alcohol and Marijuana Use in the Initiation of Fatal Two-Vehicle Crashes, 27 ANNALS OF 

EPIDEMIOLOGY 342 (2017). But cf. Julian Santaella·Tenorio et al., US Traffic Fatalities, 1985-2014, and Their Relationship ta Medical Marijuana Laws, 

AM. J. Pus. HEAtTH (Jan. 11, 2017) (finding a decrease in traffic fatalities in states with medical marijuana laws). 

32. See, e.g., ROBERT l. DuPONT,lNST. FOR BEHAV. & f-<EALTH, IMPLEMENT EFFECTIVE MARIJUANA DU!D LAWS TO IMPROVE HIGHWAY SAFETY (Oct.12, 

2016); Johannes E. Ramaekers, Driving Under the Influence of Cannabis: An Increasing PubliC Health Concern, J. AM. MED. Ass'N (Mar. 26, 2018), 

fi!e:///C:/Users/Larkinp/AppData/Local/Temp/jama_Ramaekers_2018_vp_180013.pdf. 

33. Tamara Johnson, Am, Auto. Ass'n NewsRoom, Fatal Road Crashes Involving Marijuana Double After State Legalizes Drug (May 10, 2016), 

http://newsroom.aaa.com/2016/05/fatal-road-crashes-involving-marijuana-double·state-!ega!izes·drug. 

34. As the report summarized: "The number of drivers in Colorado intoxicated w:th marijuana and involved in fatal traffic crashes increased 

88% from 2013 to 2015 (Migoya, 2017). Marijuana-related traffic deaths Increased 66% betwee"l the four-ye.ar averages before and after 

legalization (National Highway Traffic Safety Administration [NHTSA],2017). 

Driving under the mf!uence of drugs (DU!Ds) has also nsen 1n Colorado, with 76% of statewide DU!Ds involving marijuana (Colorado State 

Patrol [CSPJ, 2017). 

Washington State experienced a doubling in drugged driving fatalities in the years following legalization (T. Johnson, 2016). 

In Oregon, 50% of all drivers assessed by drug recognition experts (DR E) in 2015 tested positive for THC (OLCC, 2015)." SMART APPROACHES 

TO MARIJUANA, lESSONS LEARNED FROM MARIJUANA LEGALIZATION IN FoUR U.S. STATES AND DC 7 (Mar. 2018). 

35. See id. at 35. 

36. /d. 

37. /d. 

38. /d. 

39. ld. (''While many factors contribute to pedestrian fatalities, it turns out that states that legatlzed marijuana for medical and/or recreational use 

saw a 16.4 percent surge in such deaths in the first six months of 2017 compared to the first six months of 2016, while non~ legal states saw a 

drop of 5.8 percent in pedestrian fatalities over the same time (Baudette, 2018)."). 

40. See, e.g., NHTSA, DRUGGED DRIVING, supra note 15; D. Mark Anderson et al., Medical Marijuana Laws, Traffic Fatalities, and Alcohol 

Consumption, 56 J,L. & EcoN. 333, 335, 345,359-60 (2013); Michael N. Bates & Tony A. Blakeley, Role of Cannabis in Motor Vehicle Crashes, 

21 EPIDE.MlOlOGKAL REV. 222, 231 (1999) (finding 1nsuff!cient proof that marijuana alone or in combinat1on with alcohol increases the risk of 

traffic fatalities or injuries), Alfred Crancer, Jr., et al., Comparison of the Effects of Marijuana and Alcohol on Simulated Driving Performance, 164 

SCIENCE 251,254 (1969) (showing that marijuana users had more speeding errors but did not have a greater number of braking, signaling, 

steering, or total errors than control group); Scott V. Masten & G!oriam Vanine Guenzburger, Changes in Driver Connabinaid Prevalence in 12 

U.S. States After Implementing Medical Marijuana Laws, 50 J. SAFETY REs. 35, 45 (2014) ("Increased prevalence of cannabinoids among drivers 

involved in fatal crashes was only detected in a minority of the states that Implemented medical marijuana laws. The observed increases 

were one-time changes in the prevalence levels, rather than upward trends, suggesting that these laws result in stable increases in driver 

marijuana prevalence. The reasons that changes in prevalence were detected in some states but not in others are unknown, but one factor 

may be differences between states in drug testing practices and regularity,"); Mark L Neavyn eta!., Medical Marijuana and Driving: A Review, 

10 J. MED. ToXICOlOGY 269,272-76 (2014); Ole J. Rafaelson et al., Cannabis and Alcohol: Effects on Simulated Car Driving, 179 SCIENCE 920,923 

(1973) (showing that marijuana use mcreased braking time but dld not adversely affect other driving skills); R. Andrew Sewell et al., The Effect 

of Cannabis Compared with A/who/ on Driving, 18 AM. J. ON ADDICTIONS 185, 186, 188 (2009); see generally Larkin, supra note 26, at 474-76 & 

nn,92-97 (collecting studies). 

41. See BENJAMIN HANSEN ET Al., EARLY EVIDENCE ON RECREATIONAL MARIJUANA lEGALIZATION AND TRAFFIC FATALITIES, NBER WORKING PAPER 24417 

(Mar. 2018), http://www.nber.org/papers/w24417.pdf. 

42, Nadia Solowij et al., Therapeutic Effects of Prolonged Cannabidiol Treatment on Psychological Symptoms and Cognitive Function in Regular Cannabis 

Users: A Pragmatic Open-Label Clinical Trial, 3 CANNABIS & CANNABINO!O REs. 21 (2018). 

43. Mahmoud A EISohly et al., Changes in Cannabis Patency Over the Last 2 Decades (199S-2074): Analysis of Current Data in the United States, 79 

B10. PSYCHIATRY 613 (2016). 

44 See Gregg v. Georgia, 428 U.S. 153, 175 (1976) (!ead opinion) ("In a democratic society, legislatures, not courts, are constituted to respond to 

the wi!! and consequently the moral values of the people.") (citation and internal punctuation omitted), 

45. See, e.g., Heidi King, Deputy Dir,, Nat' I Highway Safety Admin., DUID: A Vision for the Future (Feb. 27, 2018), https://www.nhtsa.gov/speechespresentations/duid-vision-future; Planes, Trains, and Automobiles: Operating While Stoned: Hearing Before the Subcomm. on Operations of the H. 

Comm, on Oversight and Government Reform, 113th Cong. (2014). Each of the expert witnesses who testified at the hearing acknowledged that 

drugged driving is an important public policy issue and poses a danger to road and highway safety. See id. at 9 (statement of Han. Christopher 

Hart, Acting Chairman, Natlonill Transportation Safety Bd.); id. at 24-25 (statement of Jeffrey P. Michael, Assoc. Adm'r of Research & 

10 
127 


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BACKGROUNDER I NO. 3316 

MAY16, 2018 

Program Development, National H1ghway Traffic Safety Admm., U.S. Dep't of Transp.); id. at 42 (statement of Patrice M. Kelly, Acting Dlr., 

Office of Drug & Alcohol Policy and Compliance, U.S. Dep't of Transp,); id. at 44 (statement of Ronald Flegel, Dir., Division of Workplace 

Programs, Center for Substance Abuse Prevention, Substance Abuse & Menta! Health Services Admin., U.S. Dep't of Health & Human 

Servs.); see a/so NAT'L HIGHWAY TRAFFIC SAFETY ADMIN., U.S. DEP'T OFTRANSP., DOT HS 808 939, MARIJUANA, ALCOHOL AND ACTUAL DRIVING 

PERFORMANCE 4-15 (1999). 

46. See, e.g., INST. OF MED., MARIJUANA AND MEDICINE: ASSESSING THE SCIENCE BASE 4 (Janet E. Joy eta!. eds,, 1999); NAT'L INST. ON DRUG ABUSE, 

U.S. DEP'T OF HEALTH & HUMAN SERVS,, DRUGFACTS: DRUGGED DRIVING 2 (2013) ("Considerable evidence from both rea! and simulated 

driving studies indicates that marijuana can negatively affect a driver's attentiveness, perception of time and speed, and ability to draw on 

information obtained from past experiences."); WORLD HEALTH 0RG., CANNABIS: A HEAlTH PERSPECTIVE AND RESEARCH AGENDA 15-16 (1997); 

JONATHAN P. CAULKINS ET AL., MARIJUANA LEGAliZATION: WHAT EVERYONE NEEDS TO KNOW 33 (2d ed. 2016); ROOM ET AL, supra note 26, at 18-19 

("Better-controlled epidemiological studies have recently supplied credible evidence that cannabis users who drive while intoxicated are 

at increased risk of motor vehicle crashes .... A convergence of fallible evidenc:e thus suggests that cannabis use increases the risk of motor 

vehicle crashes 2-3times .... "). 

47. See EARLEYWINE, supra note 30, at 214 ("Obviously, no one should operate dangerous machinery of any kind under the influence of a mindaltering drug."); Paul Armentano, Should Per Se Limits Be Imposed for Cannabis? Equating Cannabinoid Drug Concentrations with Actual Driver 

Impairment: Practical Limitations and Concerns, 35 HUMBOLDT J. Soc. RELATIONS 35 (2013) (criticizing zero tolerance and per se rules for 

measuring dnvmg under the influer,ce of manjuana but assuming that no one should drive while impaired by 1t), 

48. The Commerce Clause states that Congress has the authority "[t}o regulate Commerce with foreign Nations, and among the States, and with 

the Indian Tribes." U.S. CaNST. art. I,§ 8, d 3. 

49. Congress may prevent interstate commerce from being used to circulate items deemed dangerous or Immoral. See, e.g., United States v, Lopez, 

Sltl U.S. 549, 558 (1995) ("Congress may regulate the use of the channels of interstate commerce" and also "is empowered to regulate and 

protect the instrumentalities of mterstate commerce, or persons or t[lings in interstate commerce, even though the threat may come only 

from intrastate activitieS[.]"). 

SO, See 23 U.S.(. § 158 (201.2). 

51. See U.S. CaNsT. amend. XXI,§ 2 ("The transportation or importation into any State, Territory, or possession of the United States for delivery or 

use therein of intoxicating liquors, in violation of the laws thereof, IS hereby prohibited."). 

52. See U.S. CaNST. amend. X ("The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved 

to the States respectively, or to the people."). 

53. 483 u.s. 203 (1987). 

54. /d. at 208-12. 

55. There is a difference between bucca! swab testing conducted at a roadside stop and blood testing conducted after someone has been 

taken into custody. Reliable roads1de testing can allow a police officer to obtain evidence supporting or inconsistent with the presence of 

an 1mpa1ring substance in the dr1ver's system. Later blood or unne testing can provide valuable confirmation for judicial or administrative 

proceedmgs. 

56 For examples of" other proposals, see GOVERNORS HIGHWAY SAFETY Ass'N, supra note 15; OFFICE OF NAT'L DRUG CONTROL POLICY, NATIONAL DRUG 

CONTROL STRATEGY 2010, at 24 (July 2010); larkin, supra note 26, at 483-508. 

57. See, e.g., Larkin, supra note 26, at 483-515. 

58. See https:j/www.youtube.com/watch?v;:;;hUVwROrwSfk. 

ll 
128 


35235.097

Identify issues specific to your state 

Which drugs are most commonly found in drivers• systems? 

Are certain segments of the populatipn 

Are there gaps In the data that need to be filled? 

2. Identify legislative gaps in existing impaired driving laws. 

, Does existing law apply equally to alcohol·impaired 

:l. 

Identify challenges to 

• Identify legislative changes 

Ask practitioners how to 

B 

laws. 
129 


35235.098
130 


35235.099
131 


35235.100

Abo11t this report 

Size of the problem 

}) Supporting inforrnqlion 

Roadside survey datu 

Marijuana 

}) About marijuana 

)) Mnrijuana usc by drivers 

impairment und crash risk 

Opioids 

About opioids 

)) Qpioid usc by drivers 

)) Opioid impairment and crash risk 

Drivers' views on op1oids ilrtd driving 

State op1oid 

}) Standardited Field Sobriety Tests 

Advar,ccd Roadside imp,lired 

Driving Enforcement 

)) Oral fiuid scrccnmg 

3 

5 

10 

11 

13 

18 

fJreath and fingerprint screening 

Pros~:CL,tlon and adj;Jdication 26 

Urine tests 

)} laboratory procedures, 

27 

27 

29 

30 

30 

30 

30 

30 

31 

31 

and deluys 31 

31 

arrested for impaired driving 

.)) Hecording 33 

forward 34 

36 
132 


35235.101
133 


35235.102
134 


35235.103

About this report 

Drug use and abuse are critical social issues in the United States 

in 2018. Two drug families in particular stand out: marijuana 

(cannabinoids) and opioids. Marijuana use is rapidly becoming 

normalized, with recreational marijuana legal in 9 states and the 

District of Columbia and medical marijuana approved in 29 states and 

the District of Columbia (NCSL, 2018a; 2018b). Opioid addiction and 

opioid overdose deaths have become a national crisis, with overdoses 

producing an estimated 115 deaths daily (NIDA, 2018). 

Marijuana and opioid use affect driving and can cause crashes. State Highway 

Safety Offices (SHSOs) are concerned: in a survey, virtually all said drugged driving 

is a problem and the majority rated it equal to or more important than driving 

while impaired by alcohoi(GHSA, 2018a). The National Highway Traffic Safety 

Administration (NHTSA) held a Drugged Driving Cal! to Action Summit on March 15, 

2018, a public meeting with key stakeholders to kick off NHTSA's "new initiative to 

lead national dialogue and begin setting a course of action to combat this growing 

problem." States must find effective strategies to address impaired driving resulting 

from use of marijuana and opioids. 

This report should help states and other stakeholders understand the key facts. It 

incorporates information from a February 2018 survey of SHSOs on their challenges 

and strategies for dealing with marijuana- and opioid-impaired driving (GHSA, 2018a). 

For information on driving under the influence of drugs (DUID) in genera! see the 2017 

report IJIIJ9.:!rr1~d_[)rivi~g: A GujQ.~JQI'2!<l!.~_s,_lQ1L1i.EcJe_t~ (GHSA, 2017). 

This report begins by describing the size of the DUID problem, using the best available 

data but pointing out the substantial limitations in these data. The next two sections 

discuss marijuana and opioids, respectively: how frequently each is used and what is 

known about how each affects driving ability and crash risk. These sections document 

current state laws, active legislation, and public knowledge and attitudes regarding 

marijuana and opioids. 

The next section documents current state DU!D detection, arrest and prosecution 

strategies that apply to marijuana or opioids. It discusses legal and policy issues that 

may hinder these strategies. 

Finally, the report provides recommendations for what states can and should do 

to address marijuana- and opioid-impaired driving within their impaired driving 

programs. Marijuana and opioids require some new tactics to detect impairment at 

the roadside, provide chemical evidence of impairment, convince judges and juries 

oftheir impairing effects, and above all educate drivers and the public about the 

115 

The number 

of deaths 

thatopioid 

addiction 

andopioid 

overdose 

cause daily 

in the U.S. 
135 


35235.104

dangers of driving wf:i!e driving changes only by 

add1ng m~njuana, OPIOids. ar.d other dr:Jgs to alcohol. Don't anve If you 

by alcohol you will oth~:rs at risk. But if you do, you 

detec~ed, 

;::va1iable as of ,t,pnl 1, 2018. The provide 

in 

No data sources accurately document how frequently drivers have 

a measurable amount of some drug in their systems, much less how 

frequently they are impaired by drugs. These sections report data from 

two sources: NHTSA's Fatality Analysis Reporting System (FARSI and 

roadside surveys in the United States and Canada. 

data 

F/\RS is t11c best data source:> tb<lt 

more freC]uently 

ana Smither (701<1) 

i esi!ng rates 

from V"/1thin FARS. the 

'"''"lv-"""'"'ldnvers beGlliSC thev wrc 

by [:3erning 

from very low (2%) to very high 

(Jiffcrcnt testing protoco:s and different cutoff 

values. This rr:eans that FARS dot a cannot be lu states 

condusions regsrdrng chzmge ovc1 tiiTJC rPust be considered 
136 


35235.105

section sumrnari7es FARS data on drug presence in f<:nolly~inJured drivers and 

dr(JWS conciusrons that F.APS data ltmitations. Data for 2016 eve from th("C' 

are from the Anal FARS file, and 2015 ciata a1·e from 

both fdes. Drug and alcohol presence ts slightly higher !n each year's final file because 

some test results are not avaiiabie when annual report file 1s produced 

Drug and alcohol 

Drugs in drivers: in 2016, 43.6% 

drug~oositive. In 43.0% in the annual 

final file were drug-positive 

Alcohol in drivers: Oi the 

annual 

)) Poly-drug and drug-alcohol: In 2016,50.5% of the drug-positive were 

positive for two or more drugs and 40.7% were positive 

)) Drugs: In 2006. 27.8% of drivers witll known Orug test results were drug-positive 

compared to 43.6% in 2016 

from 3,994 in 2006 to 

number of known drug~positive drivers 

in 70.1.6. 

)) Alcohol: Jn /006, 41.0% of o!! with known test results were alcohol~ 

positive cornpared to 3 7,9% 2016 nurnber of known aioohc,l~posilivc 

drivers decreased from in 2006 io 5,47:3 in 2016 

Final file: Both the percentage ana number of drug-positive and nicoho!~positive 

s!;ghtiy in the 2016 final file 

On thtJ following page, 1 shows aicohol preserlce falal!v-injured 

drug 

2006 to 2016 

of fatolly-iGjured drivers knowq to have been 

}') High testing rate states: in the 19 that tested 75% of i:lH fatally-injured 

drivers in 2016. drug presercP was very simiiar to that for all sta1cs comb;ned. 

59.3% 
137 


35235.106
138 


35235.107

Drug presence does not imply impairment: there is no established 

between drug by drug test and impairment, for any drug. 

In particular, some drugs reported in drug tests 

The limitations ofthe FARS data mean that precise quantitative conclusions cannot be made about 

the level of drug presence or the amount that drug presence has changed over time. However, the 

following qualitative condusians regarding fatallyMinjured drivers are fu!!y supported; 

)) Drug presence probably increased .slightly from 2015 to 2016. 

Alcohol presence was about the same in 2016 as in 2015. 

)) More drivers drug··positive than aicohol-positive both in 20.16 and 2015. 

Many drivers combine more than one drug or combine drugs alcohoL 

)) Drug presence ,substantially from 2006 to 2016. 

Alcohol presence decreased somewhat from 2006 to 2016. 

Washington Stat~ data 

VVashington State recentiy analyzed drug and a !coho! use among drivers involved in 

cri'lshes :n the:r 2016 F;\RS datu (Grendel et al., 2016). more thJn 

tw1ce as manv po!y ·drug two or more drugs, or alcohol and at leJst one 

drug-than alcohol-o.'lly drivers and five t1rnes more than THC-ortly drivers 

data 

In 2013-14, NHTSA conducted a survey of drivers 

weekend nights (Bernmg 2015). In ead< t1rne period, 220,{, 

WE?ekday davs and 

dnvers tested 

positive for some or medk:auon (Kelly·· Baker et 2017). Aicohol presence was 

considerably lower: 8.3% of the week~?nd night had a positive bre8th alcohol 

concentration (BrAC) level {.OOS i::3r/\C or above} w1th 1.5% at a Brf.\C of 0.08 or above. 

On weekdaY days, on tv 1.1% had ;J positive BrAC and OA% a BrAC of 0,08 or above. 

Alwhol concentration is measured either in blood (BAC) or breath (BrAC). Both use the 

some units atld equivalent for ali practiC\11 purposes 

Weekday_ Daytim:_ ___ _ 

Weekend Nighttime 

Ll% 

83°/o 

0.4% 

L5% 
139 


35235.108

Weekday Daytime 19.0% 

19.8% 

21.6% 

Weekend Nighttime 21.2% 

NHTSA conducted a s:rnilar roadside survey in ?007. The two survt-:ys differed slight!y 

in the specific drugs tested and used. When adjusted to the same drugs 

and cutoffs, the proportion of drivers testrng posltivc~ for any illegal drug (:ncluding 

marijuana) rose f~om 12A% 2007 to 15.1% in 14 and tho proportion testing 

positive for a medrcat1on rose from 3.9% to 4.9%. 

Roadside survey data bC>cause they como from a sar:1pie of drivers in 60 

locations. D··iver· participat1on wos voluntary: 71% of the c;-!rg;blc diNers pmvided a blood 

or oral fluid sample. Ncvcrtheicss, the roadside data support 

from FARS that drug oresencc has :n 

A ::?012 Canadian roadside survey reported lower levels: 7,4% 

drug 6.5% had positive BA.C (Beirness. 701<i) 

Marijuana use is increasing in the general population 

and among drivers. Marijuana is no longer just 

smoked, it's vaped, eaten, drunk, dabbed, chewed, 

or wiped, often in much higher concentrations 

than traditional smoked joints. Marijuana affects 

driving-related skills but its effect on crash risk is 

uncertain. There's no public consensus on whether 

marijuana increases crash risk or whether it's acceptable 

positive for any 

to drive after using marijuana. State laws regarding marijuana 

possession and use range from prohibition to varying degrees of 

legalization. This section documents these issues. 

it's inwortant to understand the ma~y ways in which 

Alcohol in the body can be measured in breatr•, blood, or 

diff~~rs rrom alcohol. 

concentration (BAC) a peak about 20 minutes to an hour after drinking and 

drops steadily af!d gradually there.:rfter (Figure 3t-'\). BAC is closely to lmpain!lent 

of behavior (balance. coordination, reaction time), attention, d(-;cision"rnJking, nsk tul<ing, 

and judgmer.L M0ny studies hnvc documented how D driver's crash risk <ncreases as 

22.4% 

22.5% 
140 


35235.109

HAC lhey fcnTI the basis for iaws 

8XC0eding 0.08 g/dL (0 OS Utah) 

Mnrijuana differs substantially_ At present be 1ncasured accurately 

if' breath but must be rnc<1sured ltl blood, unne, o: saliva. The blood concentration 

of its co·nponent, 

tor some time. As <J res cit THC 

'll the body for wer.ks. Fpr<Jiiy, rnan;uuna's 

1nd1viduals. Comp\.o~-~ (2017) provides u detcnied 

About marijuana 

MDrijU~lPJ, or cannabis. is a osycho<:~ctive dr·ug from the cannabis 

smoked, 

coord1nallotl, de!ayed 

Centers, 20J8: NarconO'l, 2018) 

Manjuar:a use vdnes widely by state, correlated strongly vvith laws, as shown in 
141 


35235.110

In 

1n 

three years 

aduits aged 26 wnd abGve 

M<!rijuana use 

Fatally-injured drivers, reported in FAR$: 

::!.006, the 
142 


35235.111

In 20:1.6, 54.3% of the fatally-injured drivers were tested. This means that 22.3%-

a!most one-quarter-of all fatally-injured drivers were known to have been marijuanapositive. 

While the limitations of FARS data discussed above apply, the genera! conclusions are 

dear: marijuana is the most common drug found in fatally-injured drivers and marijuana 

presence has increased substantially in the past decade. 

Canadian national fatality data: Canadian data show lower levels of marijuana but 

similar trends. Among those drivers tested for drugs, 12.4% of fatally-injured drivers 

were positive for marijuana in 2000. This percentage gradually rose to 21.9% in 2013 

before declining to 18.6% in 2014 (TIRF, 2017). 

Roadside survey data: In NHTSA's 2013-14 roadside survey, marijuana was by far 

the most prevalent drug, with 12.7% of drivers testing positive on weekend nights and 

8.7% on weekday days. Nighttime presence in the 2007 survey was 8.7% (Kelly-Baker 

et al., 2017). 

In the 2012 Canadian roadside survey, 3.3% were positive for marijuana. As in the 

United States, marijuana was by far the most common drug detected {Beirness, 2014). 

Survey data: In a national survey in 2017, 4.7% of drivers reported having driven within 

one hour of using marijuana in the past year (AAAFTS, 2018). 

In a Canadian national survey in 2012, approximately 2.4% of drivers reported driving at 

least once within two hours of using marijuana (Capler et al., 2017). 

Drivers in Colorado and Washington: Colorado and Washington were the first two 

states to authorize recreational marijuana use. In roadside surveys in Washington 

conducted immediately before and 6 and 12 months after legal sales began in July 

2014, the proportion ofTHC-positive drivers increased from 14.6% to 19.4% and 

then to 21.4%, though the increases were not statistically significant (NHTSA, 2016). 

The increase was concentrated in the daytime: from 8% THC-positive before sales 

began to 23% afterwards, compared to nighttime proportions of 19% before and 20% 

afterwards {Eichelberger, 2018). In Colorado, the number of traffic fatalities in which a 

driver tested positive for THC increased from 181n 2013 to 77 in 2016 (COOT, 2018). 

ln a September 2014 survey of drivers in Colorado and Washington who reported 

any marijuana use in the past month, 43.6% reported driving under the influence of 

marijuana in the past year and 23.9% had driven within one hour of using marijuana at 

least five times in the past month \Davis et al., 2016). 

Marijuana impairment and crash risk 

Many experimental studies document that marijuana affects psychomotor skills 

and cognitive functions critical to driving including vigilance, drowsiness, time and 

distance perception, reaction time, divided attention, lane tracking, coordination, and 

balance (Capleret al., 2017; Compton, 2017; Strand eta!., 2016). Marijuana effects 

13 

Marijuana is the 

most common 

drug found in 

fatally-injured 

drivers and 

marijuana 

presence has 

increased 

substantially 

in the past 

decade. 
143 


35235.112

vary substantially across individuals. For example, chronic marijuana users may not be 

impaired even wlth high levels of marijuana in their bodies (NHTSA et al., 2017). 

Marijuana's effect on crash risk is far less clear. While there are many recent studies, 

methodological flaws are common. The studies are complicated by the difficulty in 

estimating a driver's THC at the time of a crash, by the lack of a relationship between 

THC level and impairment, and by tests that do not distinguish between THC and nonimpairing metabolites. The most supportable conclusions are that marijuana has caused 

or contributed to some crashes: that it can, but need not necessarily, increase crash risk in 

a driver; and that the best overall est! mate of marijuana's effect on crash risk in general is 

an increase of 25-35%, or a factor of 1.25 to 1.35. 

The best overall 

estimate of 

marijuana's 

effect on crash 

risk in general 

is an increase 

of 25-35%, or a 

factor of 1.25 

to 1.35. 

These conclusions are based on several recent summaries and reviews of marijuana crash risk studies. 

The summaries and reviews provide references to many individual studies. 

)) Compton (2017) summarizes recent epidemidlogical studies, frequently-cited 

meta-analyses, the extensive DRUID study (Schulze eta/., 2012). and the 

NHTSA crash risk study {Compton and Berning, 20 15). The NHTSA study, 

perhaps the most methodologically sound of all marijuana crash risk studies, 

found an increase of 25%, most of which was due to associated driver factors 

such as age and gender. 

)) Gjerde eta/. {2015) summarize 36 epidemiological studies, 23 of which found 

a statistically significant effect of marijuana on crashes and injuries with effect 

sizes ranging up to 400%. 

)) Rogeberg and Elvik {2016a) replicate two previous meta-analyses and conduct 

a new one of 21 studies. They conclude that marijuana increases crash risk by 

22-36%. See also Gjerde and M0rland {2016) for comments and Rogeberg and 

Elvik {2016b) for a response. 

)) White (2017) reviews 11 epidemiological studies. He concludes that cannabis 

does not increase crash risk by more than 30%. 

)) Capler eta/. (2017) review and comment on all previous reviews and studies and 

conclude that marijuana increases crash risK by about 20,.30%. 

)) Romano, Torres-Saavedra eta/. (2017} examine in detail the issues of attempting 

to estimate marijuana crash risk using FARS data_ They conclude that FARS data 

cannot be used for precise risk estimates. They concur with the many studies in 

the studies and reviews cited above that the cr~sh risk of marijuana is less than 

that of alcohol. 
144 


35235.113

Two studies of the overall effects of marijuana legalization arrive at different conclusions. 

Colorado and Washington legalized recreational marijuana in 2012. Aydelotte eta!. 

(2017) examined overall traffic fatality rates per travel mile in Colorado, Washington, 

and eight control states between 2009 and 2015. After controlling for avera!! trends 

and state-specific characteristics they concluded that fata!!ty rate changes in Colorado 

and Washington were similar to changes in the control states. A Highway Loss Data 

Institute (HLDI) study found that collision claim frequencies increased by about 3% 

after recreational marijuana use was legalized in Colorado, Oregon, and Washington 

compared to neighboring control states (HHS, 2017). 

Driver views on marijuana and driving 

In a 2017 national survey, 89.1% of drivers said that they feel it is unacceptable to drive 

after using marijuana (AAAFTS, 2018). 

In contrast, in surveys and focus groups in Colorado and Washington, almost all 

regular marijuana users believed that marijuana doesn't impair their driving and some 

believed that marijuana improves their driving (COOT, 2014: PIRE, 2014; Hartman 

and Huestis, 2013). Most of these regular marijuana users 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's 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's effects on 

cognitive performance were similar for both frequent and infrequent marijuana users. 

In a survey of regular marijuana and hashish users in Colorado and Washington, Allen 

et al. (2016) asked respondents if they were high or feeling the effects of marijuana or 

hashish when they took the survey, Those who reported being high were more likely to 

believe they could drive safely under the influence of either marijuana or alcohoL Jn another 

survey, drivers who reported using marijuana, and those who reported driving within an 

hour of use in the past year, were less likely to believe that using marijuana increases crash 

risk and more Hkely to believe that it does not affect or decreases crash risk (Arnold and 

Tefft, 2016). In a final survey, drivers who reported using marijuana were more supportive 

of and had a greater intention to drive after using marijuana (Ward et al., 2016). 

In a nationwide survey of 2,800 high school students and their parents conducted by 

Liberty Mutual and Students Against Destructive Decisions (SADD), 33% of the students 

and 27% of their parents believed that it is legal to drive under the influence of marijuana 

in states where it's been legalized for recreational use. Additionally, 88% of the students 

and 93% of the parents said that driving under the influence of alcohol is dangerous, 

while only 68% of students and 76% of parents said the same for marijuana. Finally, 

22% of teens admitted that driving under the influence of marijuana is common among 

their friends (Liberty Mutual, 2017). 

State marijuana laws 

Recreational or medical marijuana is legal in more than half the states, with more states 

likely to liberalize marijuana laws in 2018. As of Apri12018, medical marijuana use was 

Some regular 

marijuana users 

incorrectly 

believe that 

marijuana 

improves their 

driving. 
145 


35235.114

allowed in 29 states and the District of Columbia. An additional17 states allowed the 

use of "low THC. high cannabidiol (CBD)" products for medical reasons (NCSL. 2018a). 

Recreational use was allowed in nine states and the District of Columbia. Most recently, 

Vermont's legislature authorized recreational use effective July 1, 2018. Canada also 

authorized recreational use effective July 1, 2018. Marijuana possession and use was 

decriminallzed in 22 states (NCSL, 2018b). Figure 1 shows state marijuana possession 

and use laws as of April 2018. 

As of April30, 2018, recreational marijuana bills had been introduced in 20 states (in 

addition to Vermont), medical bills in 14 states, and decriminalization bills in 12 states 

{Marijuana Policy Project, 2018). In contrast, the US Drug Enforcement Agency classifies 

marijuana, along with heroin, LSD, and other drugs, as a Schedule 1 drug which has "no 

currently accepted medical use and a high potential for abuse" (USDEA, 2018). 

FIGURE 5 

State marijuana possession and use laws 

~Louisiana has a medical man)uana law but imolementation 1s limited; NCSl does not 

constderlou<s•anaamed•calmari)Uanastate 

Legalized for 

adult use 

Source: Adapted from NCSL. 2018a 

Legalized for 

medical use only 

Decriminalized Legal for medical 

use 1 decriminalized 
146 


35235.115

Three types of state laws apply to driving under the influence of marijuana. 

DU!D has two requirements: 

an officer must observe signs 

that the driver is impaired 

and the impairment must be 

linked to a drug. Marijuana can 

impalr, so OU!D laws apply to 

mariJuana. 

As of April 2018, 12 states have zero 

tolerance laws for marijuana: 9 states 

for THC or a metabolite and 3 states 

for THC but with no restriction on 

metabolites (GHSA, 2018b; NCSL, 

2018c). South Dakota's zero tolerance 

law app!les only to drivers under the 

age of 21. 

As of April 2018, 7 states have marijuana per 

sc laws with THC limits of 1 ng (Pennsylvania), 

2 ng (Nevada and Ohio), 3 ng (West Virginia, 

for state-registered medical marijuana 

patients), and 5 ng (Illinois, Montana, and 

Washington). Colorado has a "permissible 

inference" law wrth a 5 ng limit. (ibid.) 

Figure 2 shows state marjjuana impaired driving laws as of April 2018. 

FIGURE 6 

State marijuana impaired driving laws-DUID 

Zero Tolerance THC Zero Tolerance 

and Metabolites THC only 

Source: Adapted from NCSL, 2018b 

Per se THC Permissible 

Inference 
147 


35235.116

Opioids 

On October 26,2017, Acting Health and Human Services Secretary 

Hargan declared a nationwide public health emergency regarding the 

opioid crisis. While overdose deaths from the abuse of prescription 

or illegal opioids have received the most attention, opioids also affect 

driving and can cause crashes. This section documents the role of 

opioids in driving. 

About opioids 

Opioids are a class of drugs that includes heroin, synthetic opioids such as fentanyl, 

and pain relievers available legally by prescription including oxycodone (OxyContin), 

hydrocodone (Vicodln), codeine, morphine, and many others. Opioid pain relievers are 

generally safe when taken for a short time and as prescribed by a doctor, but because 

they produce euphoria in addition to pain relief, they can become addictive. Regular use, 

even as prescribed by a doctor, can lead to dependence (NIDA, 2018). Synthetic opioids 

such as fentanyl or carfentanH can be hundreds or even thousands of times more 

powerful than prescription opioids. 

Opioid prescriptions rose from 107 million in 1992 to nearly 277 million in 2012 

before declining to 239 million in 2016 (Pezalla et al., 2017). Nearly 92 million adults, 

or about 38% of the population, reported that they took a legitimately prescribed 

opioid in 2015 (Han et al.. 2017). Roughly 21% to 29% of patients prescribed opioids 

for chronic pain misuse them and between 8% and 12% develop an opioid use 

disorder. ln 2016, about 42,000 deaths, or 115 deaths every day, were attributed to 

an opioid overdose (NIDA, 2018). 

FIGURE 7 

Opioid Prescriptions, 1992-2016 

Opioid prescriptions, millions 

300 

251J 

200 

150 

100 

50 

FARShas 

codes for 

158 different 

opioids. 

1992 1993 1994 1995 1996 1997 1998 1999 2000 2001 2002 2003 2004 2005 2006 2007 2008 2009 2010 2011 2012 2013 2014 2015 2015 

Source. Pezalla, et. al. (2017) 
148 


35235.117

Opioid use by drivers 

Fatally~injured drivers, reported in FARS: !n 2016, 1,064 drivers, or 19.7% of the 

drug~posltive drivers, were positive for some opioid, slightly less tha11 half as many as 

were positive for marijuana. The most frequent opioids were oxycodone (OxyContin, 

Percodan, Percocet) at 20% of all opioids, hydrocodone (Vicodin, Lortab, Lorcet) 

at 19%, morphine at 14%, fentanyl at 11%, and methadone at 89iL ln 2006,679 

drivers, or 17.0% of drug-positive drivers, were opioid-positive. 

!n 2016, 543% of the fatally-injured drivers were tested for drugs. This means that 

10.7% of all fatally-injured drivers were known to have been opioid-positive. 

While the limitations of FARS data discussed above apply, the general conclusions are 

dear: opioids are present about half as frequently as marijuant:~ in fatally-injured drivers 

and opiold presence has increased in the past decade 

Roadside survey data: In NHTSA's 2013-14 roadside survey, 4.7% of drivers on 

weekend nights and 5.5% on weekday days tested positive for opioids, considerably 

fewer than tested positive for marijuana (12.7% and 8.7%, respectively) (Kelly-Baker et 

al., 2017). 

Opioid impairment and crash risk 

Many studies document that opioids can cause drowsiness and can impair cognitive 

function, both of which can have obvious effects on driving (Dhingra et al., 2015; Strand 

et al., 2016). 

Two reviews summarize what is known about opioid effects on crash risk. Gjerde et 

aL (2015) review 25 epidemiological studies. Seventeen of these found a statistically 

significant effect of opioid use on crash risk while the other eight did not However, 

seven of these eight studies had either low statistical power or questionable designs. 

The authors conclude that opioids increase crash risk but do not provide a numerical 

estimate of the effect 

Chihuri and Li {2017) conducted a meta-analysis of 15 studies of prescription opioid 

effects, 10 of which analyzed crash involvement and 5 of which analyzed crash 

culpability. The summary effects across all studies were an increased risk of 2.29 for 

involvement and 1.47 for culpability. 

Estimating the effect on crash risk is even more difficult for opioids than for marijuana. 

The most supportable conclusion is that opioids can increase crash risk by a factor of no 

more than about 2. 

Drivers' views on opioids and driving 

The opioid crisis results from a wide variety of societal issues produced by illegal opioids 

and the misuse of prescription opioids, most notably opioid-related deaths, not from 

opioid-impaired driving. Drivers probably consider illegal and prescription opioids quite 

differently.lllegal opioids, including prescription opioids taken illegally, are drugs which 

Opioids 

are present 

about half as 

frequently as 

marijuana in 

fatally-injured 

drivers and 

opiold presence 

has increased 

in the past 

decade. 

Opioids 

can cause 

drowsiness, 

impair cognitive 

function, and 

increase crash 

risk. 
149 


35235.118

have no medica! benefit and can impair driving. Driving after using them should be 

discouraged or prohibited. Opioids taken by prescription are medicines, taken to relieve 

pain. Their use is fairly common. In a 2017 national survey of drivers age 21 and above, 

17% reported taking a prescription opioid in the past month. Of those who did, 64% 

said that they felt it was safe to drive (NSC. 20 17). 

In another 2017 national survey of drivers, 90.8% said that other drivers who have used 

illegal drugs are a serious or somewhat serious threat to them, compared to 78.1 o/o for 

other drivers who have used prescription drugs {AAAFTS, 2018}. 

Physicians prescribing opioids and pharmacists fi!ling prescriptions may not warn 

patients of their possible effects. For example, FDA's prescribing advice for OxyContin 

says only "Warn patients not to drive or operate dangerous machinery unless they are 

tolerant to the effects of OxyContin and know how they will react to the medication" 

and the package insert says ''Do not drive, operate heavy machinery, or participate in 

any other possibly dangerous activities until you know how you react to this medicine. 

OxyContin can make you sleepy:·(FDA. 2018a: 2018b). 

State opioid laws 

Driving under the influence of opioids is covered by the same three types of state laws 

as driving under the influence of marijuana. 

FIGURE 8 

State opioid impaired driving laws ZT 

*SouthDakota:under21 only 

1!1 Per se 

Adapted from NCSL, 2018b, 
150 


35235.119

DUID has two requirements: 

an officer must observe signs 

that the driver is impaired and 

the impairment must be linked 

to a drug. Opioids can impair, 

so DU!D !aws apply to opioids 

As of April 2018. 16 states have zero As of April2018, Nevada and Ohio had per se 

tolerance laws for some oral! opioids. laws applying to some opioids. (NCSL, 2018d) 

South Dakota's zero tolerance law 

applied only to drivers under the age of 

2l.(NCSL, 2018d) 

Figure 8 (previous page) shows state opioid impaired driving laws as of April 2018. 

Detecting marijuanaopioid-impaired drivers 

All impaired driving detection begins with a law enforcement officer 

stopping a driver for a traffic violation or observing a driver at a crash 

or a checkpoint. The officer determines if there is any reason to suspect 

that the driver is impaired by alcohol or a drug. This is based on what 

the officer observes about the driver's behavior and any other signs 

such as the odor of alcohol or marijuana, beer bottles, marijuana 

cigarettes, opioid pills, or the like. 

Standardized Field Sobriety Tests (SFSTs) 

If impairment is suspected, the officer usually will begin by checking for impairment from 

alcohol using the SFSTs or Preliminary Breath Test (PBT) instruments. The SFSTs can 

rule out alcohol impairment and can provide a reasonable initial screen for impairment 

from marijuana and opioids (Porath-Wal!er and Beirness, 2014) 

The procedures for making an arrest. obtaining a BAC from a breath or blood sample, 

prosecuting a Driving Under the Influence of alcohol (DUI) charge, and obtaining a 

conviction are far easier, quicker, and cheaper than for DU!D. As a result, if an officer 

observes impairment and detects or suspects that alcohol is a cause, often only DUI 

evidence and charges will be pursued. Other drugs will be considered only lf alcohol 

is ruled out or if the observed impairment is not consistent with the driver's BAC level 

(GHSA, 2015, 2018a). In states where marijuana use ls illegal, officers who observe a 

driver impaired by marijuana often wi!l pursue a charge of marijuana possession rather 

DUID (GHSA, 2018; NHTSA et al., 2017). 

Advanced Roadside Impaired Driving Enforcement (ARIDE) 

Many officers have not been trained to recognize the behavioral signs of impairment by 
151 


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drugs other than alcohol (GAO, 20 15). The 16-hour ARIDE course provides officers with 

basic information on drug impairment, including the signs and symptoms of impairment 

produced by marijuana and opioids. Unlike the SFSTs, ARIDE typically is not included in 

basic police academy training. As a result, the number of ARIDE-trained officers varies 

considerably by state, from most patrol officers in some states to only a few in others 

(GHSA, 2015). In 2015, the last year for which nationwide data are available, 561 inperson ARIDE classes trained approximately 10,350 officers (IACP. 2017). Since 2009, 

approximately 55,000 officers have received classroom ARIDE training, only about 8% 

of the approximately 700,000 patrol officers nationwide. ARIDE training also is available 

online but the number of officers who have been trained online is not known. In a recent 

survey, 17 states reported that more than 20% of their officers have been ARIDEtrained (FeU et al., 2018). Several states would like to train more officers but resources 

are limited (GHSA. 2018a}. 

Oral fluid screening 

A good oral fluid (saliva) device to test for the presence of marijuana or opioids would 

help roadside enforcement substantially (GAO, 2015). lt would provide objective data to 

justify an arrest and to require a blood or urine sample for an evidential test and would 

identify the drug category that the evidential test should examine. It should be quick, 

easy, minimally invasive, and inexpensive. As of April 2017, 14 states authorize officers 

to collect oral fluid and test for drugs (fell et al., 2018). 

Several oral fluid devices are now available. The best current models may serve as 

useful roadside screeners. They are easy to use, are not intrusive, and can identify 

55,000 

The number of 

officers who 

have received 

ARIDE training 

between 2009 

and2015. 
152 


35235.121

active marijuana (THC) and opioids as well as other major drug categories. They cost 

about $20 per use and produce results in fewer than 5 minutes. They produce few Jalse 

positives, and they correctly identify most drug-negative drivers. At least ten states have 

conducted field tests of oral fluid screeners, with promising results (Campton, 2017: 

Fell et al., 2018: Flannigan et al., 2017).1n a formal evaluation, DRUID evaluated eight 

devices and found three that correctly identified more than 80% of both drug-positive 

and drug-negative drivers (Schulze et al., 2012). Lee and Huestis (2014) summarize the 

scientific basis of oral fluid testing as of 2014. Asbridge and Ogl!vie (2015) summarize 

five studies that assessed the ability of four most commonly used oral fluid devices 

when used to detect six families of drugs. Beirness and Smith (2016) give a combined 

assessment of three common devices. 

The currently available devices are not yet of evidential quality. While they may identify 

many drug-positive and drug-negative drivers, and help establlsh probable cause for 

an impaired-driving arrest, they cannot accurately measure drug concentrations. GAO 

(2015) concluded that "currently, there is no validated roadside drug-testing device." 

Compton (2017) agrees that "the accuracy and reliability of these devices has not 

yet been clearly established." NHTSA is evaluating five oral fluid devices with results 

expected shortly (NHTSA et al,, 2017). Michigan began a year-long test of one device 

in five counties in November 2017. Results will be available in early 2019, Nine other 

states have conducted or are conducting pilot tests {Fell et al., 2018). 

If oral fluid also could be used for evidential tests of marijuana and opioids, the 

advantages would be substantia!: 

)) Samples could be coJJected at roadside and later sent to a laboratory for 

confirmation, eliminating the delay in acquiring a blood or urine sample; 

)) Oral fluid samples do not require a warrant In some states; 

)) A positive oral fluid test indicates recent use (Flannigan eta!., 2017); and 

>> An oral fluid test combined with a breath alcohol test can identify poly-drug or 

drug-alcohol use. 

Breath and fingerprint screening 

A portable breath test device for marijuana similar to the PBT test for alcohol also would 

be valuable for roadside screening. Several companies, including Hound Labs and 

Cannabix, are developing marijuana breath test devices {Hound Labs, 2018; Cannabix, 

2018). Hound Labs has begun field tests and hopes to have a device on the market 

in 2018 (Entrepreneur, 2017). Tal pins, Holmes, Kelly-Baker et al. (2017) discuss the 

technology and legal implications of marijuana breath testing. 

Devices which detect drug metabolites through traces of sweat in a fingerprint also are 

being developed. If successful, they also could be used for roadside screening. Talpins, 

Holmes, and Sa bet {20 17) briefly discuss how transdermal drug detection has been used 

in other settings for some time and give development plans for one company's device. 

I 

Oral fluid 

screening 

devices 

may identify 

drug-positive 

drivers and 

help establish 

probable cause 

for an impaireddriving arrest, 

but they cannot 

accurately 

measure drug 

concentrations. 
153 


35235.122

Arrest, prosecution, and adjudication of marijuanaor opioid-impaired drivers 

If an officer has sufficient evidence ut the roadside to justify a DU!D charge, the driver is 

arrested and taken to a police station or other processing area. There are two main tasks 

at the station in addition to the standard procedures for an arrest to obtain additional 

behavioral evidence of impairment by drugs and to obtain a blood or urine sample for 

chemica! analysis. 

Behavioral evidence: DEC 

The Drug Evaluation ~nd Classification (DEC) program trains officers to be Drug 

Recognition Experts (OREs) who can identify the signs and symptoms of impairment by 

different categories of drugs. At the police station a DRE performs a 90~minute 12-step 

evaluation including both behavioral tests and a physical examination. See IACP {2017) 

for more information on DEC 

FIGURE 10 

The ORE 12 Step Process 

Dark Room Examinations 

Interview of the Arresting Officer Examination for Muscle Tone 

Preliminary Examination and First Pulse Check for Injection Sites and Third Pulse 

Subject's Statements and Other Observations 

Divided Attention Psychophysical Tests Analysis and Opinions of the Evaluator 

Toxicological Examination 

Source: !ACP (2018) 

OREs usually are quite accurate in confirming a driver's drug impairment and identifying 

the type of drug responsible for the impairment (Porath-Waller and Belrness, 2014), 

in particular. identifying marijuana (Hartman et al., 2016}. The DEC program's main 

challenges are the expense of training and the need to provide adequate coverage. The 

ORE training of 72 hours in the classroom and 40 to 60 hours in the field takes an officer 

away from regular duties for three to four weeks. OREs typically are highly qualified 

officers. They often arc promoted rapidly to an lldministrative position, so that another 

officer must be trained to replace them as a ORE. 

To be effective, a ORE should be available to evaluate a substantial proportion of drivers 

suspected of impairment by drugs. This means that a state must have an adequate 

number of OREs and they should be located throughout the state. Several states would 

!ike to have more OREs but resources are limited (GHSA, 2018). GHSA has partnered with 

Responsibility.org since 2016 to provide training grants to states. Nine states r~s~~~eq.9.~ 
154 


35235.123

totaJqL$~8_0,000 in these two years, which helped train 940 officers in ARIDE and 107 

in ORE. More grants will be awarded in 2018. The US Department ofTrt:~nsportation's FY 

2018 spending blH enacted in March 2018 provides an additional $5,000.000 for activities 

to reduce impaired driving, including ARIDE and DEC training. 

In 2016, the last year for which national data are available, 1,543 OREs were trained, bringing 

the total of active OREs to 8,277(1ACP, 2018)_ They conducted 31,421 evaluations of drivers 

suspected of impairment due to drugs. Marijuana was the most frequently identified drug 

category in 2016 at 13,603, or 31% of all drivers evaluated. Stimulants were second at 

10,543, followed by depressants at 10,446 and opioids at 8,678. 

2016 ORE enforcement evaluation opinions, by drug category 

Inhalants 

Hallucinogens 

Dissociative anesth. 

Narcotic analgesics !i5555555555555Eiiii;;;;~L-~ CNS depressants 

CNS stimulants 

Poly-drug cases 

Cannabis 

0 3000 6000 9000 12000 15000 

Source. Adapted from IACP (:20 17) 

While a ORE evaluation can add substantially to a DUID case, it's not essential. The 

critical components are behavioral evidence consistent with impairment by a drug and a 

laboratory test to confirm the drug's presence. 

Chemical evidence: blood or urine tests 

A chemical test of a driver's blood. urine, or saliva provides objective proof of the 

presence or absence of drugs in a driver's body. Blood tests are the most accurate 

and most commonly used (Logan et al., 2013; GAO, 2015). An officer can request a 

blood sample from a driver arrested for DUID, but the driver may refuse, as did 31% 

of recent DUI arrestees in Colorado (Davis, 2015). State laws on the consequences of 

refusal vary substantially 

Obtaining a blood sample can take several hours. A search warrant from a judge 

is required for a non-voluntary blood draw except in rare circumstances. Electronic 

warrants (e-warrants) can speed up this step considerably, allowing officers to request 

and receive warrants in their patrol cars on tablets, smartphones, or computers. 

Currently, 45 states include language either in legislation or in court rules allowing 

e-warrants (Borakove and Banks, 2018). Although legislation is recommended for 

e-warrant systems as it creates consistency, it is not necessary. Many law enforcement 

agencies are currently considering transitioning to an electronic warrant system to 

improve efficiency. See Borakovc and Banks (2018) for more information one-warrants. 

If a trained phlebotomist is not available to draw a blood sample at the police station, 

the driver may need to be transported to a hospital or clinic. The delay from the driver's 

Obtaining a 

blood sample 

can take 

several hours. 

Electronic 

warrants 

(e-warrants) 

can speed 

up this step 

considerably. 
155 


35235.124

first contact with law enforcement at the roadside until a blood sample is drawn may 

allow the driver's drug concentration to drop considerably (GAO, 2015). Some law 

enforcement agencies are training officers to serve as phlebotomists so that blood can 

be drawn quickly (Grondel. 2018). 

Analyzing a blood sample can be expensive: about $250 in Vermont (NHTSA et al., 2017) 

and $300 in Colorado (Davis, 2015). Some states do not have the capacity to process 

all the blood tests produced by DU!D arrests so must use expensive private laboratories. 

Laboratory backlogs may produce long delays until results are available, sometimes up to 

six months. so that some DUID cases may need to proceed without the test results (GAO, 

2015: GHSA, 2015: NHTSA et al., 2017). Laboratory test procedures are not standardized 

so that different laboratories test for different drugs and use different threshold values. 

even within the same state (Logan et al., 2014: GAO, 2015: GHSA, 2018a). 

Finally, as with marUuana, a driver with a detectable amount of an opioid is not 

necessarily impaired. 

Prosecution and adjudication 

Many prosecutors and judges are not familiar with DUID cases. If a case involves both DUID 

and DUI, prosecutors usually will bring only the DUI charge because it is easier to explain 

to the judge and jury and is less expensive to prosecute (NHTSA eta!., 2017: Thomka, 

2014). Marijuana in particular may be perceived by judges and juries as ''just marijuana" and 

medical or recreational marijuana may be legal in the state where the case is tried. 
156 


35235.125

Challenges 

strategies to 

and opioid-impaired 

The previous sections have described briefly the complex and confusing 

state of knowledge and state practices surrounding the issue of driving 

while impaired by marijuana or opioids. This section summarizes the 

challenges faced by states and provides recommendations on strategies 

to address them. 

Public attitudes and education 

The public in general does not understand that marijuana and opioids can impair 

driving and can cause crashes. In particular, many drivers who use marijuana regularly 

also drive after use. They often believe that their marijuana use doesn't impair or even 

improves their driving. Similmly, many drivers who use prescription opioids feel that they 

can drive safely after use. 

Education is needed to inform the public and change these beliefs. Unless drivers 

understand the risks of driving after using marijuana or opioids, other strategies will 

have limited effectiveness. States are well aware of the need for better public education 

on marijuana. opioids, and driving IGHSA, 2018: NHTSA et al.. 2017). 

Marijuana messaging must address two points: that marijuana can impair driving and 

that driving while impaired by marijuana is illegal. A deterrent message alone- that 

marijuana-impaired drivers will be arrested and punished- may have little effect 

because of the low rate of successful detection, arrest, and prosecution. Information on 

marijuana's impairing effects also may help create a soclal norm regarding marijuana 

use and driving similar to the well-established norm regarding alcohoHmpaired driving 

(Capler et al., 2017; Davis et aL, 2016; TIRF, 2017; Aston et aL, 2016). The marijuana 

industry should help establish this norm. 

Medica! marijuana states may provide expllcit warnings on the marijuana container 

regarding driving after using marijuana. Figure 11 shows Michigan's label. 

FIGURE 11 

The public in 

general does 

not understand 

that marijuana 

and opioids can 

impair driving 

and can cause 

crashes. 
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Opioid messaging must address two audiences. Drivers who take prescription opioids 

to relieve pain need to understand the warnings on the medication bottle regarding 

how long they must wait aftert<Jking the medication before driving. Physicians and 

pharmacists can deliver this message when a prescription is written and filled. While 

many physicians and pharmacists provide appropriate warnings for prescription opioids, 

some do not (Pollini et aL. 2017). 

Drivers who use opioids illegally may not be affected by information about opioids and 

driving. For them, the deterrent message of detection, arrest, and prosecution may 

have more effect It may not be necessary to mount a specific campaign because users 

already know that possession and use is HJegal and will lead to penalties if detected. 

SHSOs may be able to join with public health agencies in a combined message that 

opioid abusers can be detected through their imp<Jired driving, 

Several states have ongoing drug-impaired driving campaigns addressing impaired 

driving in genera!, marijuana, or opioids. Examples include: 

FIGURE 12 

Drug-impaired driving campaigns 

Click to view states· dnving campaigns 

sooialnorms 

regarding 

tile norms 

surrounding 

alcoholF!Qrida: 

Drive Baked, 

Get Busted 

tl~lVEIMD, 

GET BUSTED. 
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Recommendation: States should add drug-impaired driving messages, especially 

regarding marijuana and prescription drugs, to their impaired driving campaigns. Marijuana 

messages are particularly important in states in which recreational or medical use is legal 

or is likely to be authorized. 

Research need: Develop a consistent marijuana message based on research, such as 

"Don't drive within XX hours of using marijuana," where XX is a number supported by 

research. Develop national drugged-driving messages and materials that states can use 

for state-level campaigns. 

Recommendation: States should consider a campaign with physicians and pharmacists 

on prescription opioid warnings. States may wish to cooperate with public health agencies 

to deliver joint messages to the public. 

Oral fluid screening 

Oral fluid screening offers substantia! opportunities for improving marijuana and opioid 

detection. It would be quick, easy, relatively inexpensive, require little training, and would 

provide objective evidence of drug presence. It would identify poly-drug or drug-aicoho! use. 

---------------- """""""""----~----

Recommendation: States should seriously consider at least a test of oral fluid devices. 

Research recommendation: NHTSA should publish its evaluation of oral fluid devices 

promptly. If some devices are acceptable, NHTSA should publish a list of approved 

devices. States conducting oral fluid field tests should publish the results. 
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Breath tests 

The marijuana breath test instruments currently in development hold great promise. 

They likely would be cheaper and quicker to use than oral fluid devices. While they are 

specific to marijuana, that is by far the drug detected most frequently in drivers. 

Recommendation: States should closely follow the development of marijuana breath test 

instruments and should seriously consider a pilot test if and when they become available. 

Prosecution and adjudication 

Many prosecutors and judges need training in all aspects of drug-impaired driving. 

Recommendation: States should encourage prosecutors and judges assigned to DUID 

cases to participate in appropriate training. 

Electronic warrants 

A blood draw in most states requires the office to obtain a warrant {NHTSA et al., 

2017). This can take an hour or more, which is an inefficient use of the officer's time and 

Marijuana 

breath test 

instruments in 

development 

hold great 

promise. 
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means that drug concentrations !n the blood can diminish. Electronic warrants solve 

this problem: they can be obtained quickly, without a personal visit Currently, 45 states 

include language either in legislation or in court rules allowing e-warrants (Borakove and 

Banks, 2018). 

Recommendation: States that do not allow electronic warrants should authorize them. If 

authorized, law enforcement agencies should implement electronic warrants as needed. 

Urine tests 

Some states test for drug presence using urine rather than blood. Urine tests will not 

measure THC but only non-impairing metabolites. 

Recommendation: States should require blood testing for drugs rather than urine testing. 

Perselaws 

DUI charges, prosecution, and adjudication are simplified by per se laws: if a driver's 

BAC exceeds the per se limit, the driver is presumed guilty of DUI. though behavioral 

evidence of impairment is needed to back up the chemical evidence. The OUI per se 
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laws are justified because of the overwhelming scientific evidence that drivers are 

impaired when their BAC reaches the per se level. 

While many wish that per se limits could be justified similarly for drugs in general and 

marijuana in particular, they cannot {Compton, 2017; GAO, 2015}. This hasn't stopped 

some states from implementing either zero tolerance or per se laws, as discussed 

previously. Zero tolerance laws are easy to understand and can be justified for illegal 

drugs. However. they are problematic for opioids taken by prescription or for marijuana 

in medical or recreational states. 

Laws with a positive per se limit are even more problematic to justify. They send a 

message that lower levels do not impair, which is false. Unlike alcohol per se limits, they 

are difficult for the driving public to understand. A ''standard drink" of alcohol is a 12 oz. 

beer, a 5 oz. glass of wine, or a normal mixed drink. Drivers generally understand how 

many standard drinks are required for them to reach the per se limit. There's nothing 

equivalent for marijuana or opioids. It is usually straightforward to measure a driver's 

BAC within an hour of a crash or arrest using the evidential breath test equipment 

found in police stations. Because BAC dissipates gradually, this gives a reasonably 

accurate estimate of BAC before the crash or arrest. THC and opioids require blood to 

be drawn, which can take hours from the time of the crash or arrest, enough time for 

their concentrations to decrease substantially. And drug concentration in blood does not 

corre!ute well with impairment 

Recommendation: Per se laws for marijuana oropioids are not recommended. States 

wishing to consider them should understand that they have little scientific basis and 

should consider the message they may send to drivers. Zero tolerance laws for illegal 

drugs may be appropriate. 

Drivers in fatal crashes 

Only 64% of fatally-injured drivers were tested for drugs in 2015. Some states test 

well over 90% of fatally-injured dnvers. This typically results from a medical examiner 

policy of drawing blood from al! persons who died accidentaHy and testing for drugs and 

alcohoL Better data would help understand the role of marijuana and opioids in these 

most serious of crashes. 

Recommendation: Test all fatally-injured drivers, and all surviving drivers in a fatal crash 

who may be at fault, for drugs and alcohol. 

Per se laws for 

marijuana or 

opioids are not 

recommended. 

Stales wishing 

to consider 

them should 

understand that 

they have little 

scientific basis. 
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Drivers arrested for impaired driving 

Ideally, all impaired driving arrestees should be tested for both alcohol and drugs. The 

costs of laboratory testing make this impractical at present. When and if good and 

cheap roadside oral fluid or marijuana breath test devices are available, states should 

consider testing all arrestees. 
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After deciding what can or should be done, the critical question is how 

to get it done. Here are some broad conclusions from this review and 

some suggestions on how to implement the recommended strategies. 

It's not drugs or alcohol, it's impaired driving 

The basic traffic safety issue is to prevent driving while impaired by a substance that 

a driver has swallowed or injected or otherwise introduced into his or her body. While 

alcohol has been the most common impairing substance for many years, drug use has 

increased recently. The basic components of and strategies for addressing impaired 

driving are the same for alcohol and drugs: convincing drivers not to drive while 

impaired, detecting an impaired driver, obseNing and recording behavioral evidence of 

impairment consistent with alcohol or a drug, obtaining chemical evidence of alcohol or 

drugs, and assessing and treating alcohol or drug dependence or addiction. 

)) Drivers choose to use both alcohol and drugs. While some drugs are prescribed by 

physicians, for example to relieve pain, alcohol and many drugs are used because 

they make the driver "feel good" in some way. 

)) Driving after using alcohol or drugs also is a choice. Drivers can choose not to drive 

after using alcohol or drugs, or they can choose not to use <J/cohol or drugs before 

driving. Impaired driving messages make this point "Don't drink and drive." "Choose 

a designated driver." "Do not drive or use heavy machinery (after using this drug)." 

)) Drivers impaired by alcohol or drugs are detected initially in the same way. A law 

enforcement officer may observe someone driving erratically or violating a traffic 

law, or a driver may be involved in a crash or stopped at a checkpoint The officer 

then determines if the driver shows signs of impairment and if any impairment 

could be due to alcohol or drugs. If the officer has probable cause to believe the 

driver is impaired by alcohol or drugs, then the driver is arrested. 

)) A DUJ or DUID charge usually requires solid behavioral evidence of impairment 

backed up by chemical evidence of alcohol or drugs. 

)) Drivers arrested for DUJ or DUID should be assessed for substance dependence 

and mental health disorders, and treated if appropriate. 

The basic 

components of 

and strategies 

for addressing 

driving 

for alcohol and 

drugs. 
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DUID consequently requires some additional tools to be added to the alcohol-impaired 

driving toolkit But it's the same toolkit. 

)) 

How to do it? 

Implementing these recommendations requires resources. States should consider 

three ways to supplement their usual funding sources. First, some grants are available 

to assist DUID; more may be forthcoming. Next, consider joining with public health 

agencies and health care providers as partners in addressing the opioid epidemic 

Finally, if a state legalizes recreational marijuana, then some of the tax revenue from 

marijuana sales should be directed to marijuana-impaired driving programs. 

The last word 

A critical SHSO mission is to convince drivers to drive responsibly, alertly, and unimpaired. 

Marijuana and opioids add different forms of impairment. They require some new 

tactics to detect impaired drivers; link impairment to a drug: prosecute, adjudicate, and 

treat offenders; and above all educate drivers and the publlc. They join with and build 

on the familiar methods to address alcohol-impaired driving. Impaired driving program 

focus should not shift to marijuana and opioids exclusively but should expand to include 

marijuana and opioids along with alcohoL 
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References 

Davis, G. (2015). Personal conversation Denver. CO Colorado Department of Transportation 
166 


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GHSA (2015). Survey of State Highway Safety Offices. Washington, DC: Governors Highway Safety Association 

GHSA {2018a). Survey of State Highway Safety Offices. Washington, DC: Governors Highway Safety Association 

Highways Safety Association. b.\!~~:f£~-~'!'".:·9.0_~~· 

(2016). R1sk for involvement in road traffic crash during acute cannabis intoxication. Addiction 111(8), 1492-

Grondel, D. {2018). Personal communication. Olympia, WA: Washington Traffic Safety Commission 

Hartman, R. L and Huestis, M.A. (2013). Cannabis effects on driVIng skills. Oinica! Chemistry 59(3). 478-492 

Hound Labs {2018) Product testing. Oakland. CA Hound Labs.h_t!P~~~~_d_@bs.co~/_Et:_~U~s!=-~~~.!1'291 

Evaluation and CJassif1catwn Program Alexandria, VA: International Association 

The International Assnciation of Chiefs of Police ~!_tp:j~~ 

cannBbinoids in oral fluid. Drug Tf:sting and Analysis, 6(0), 88--111. .t!!Ell 
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prescribing m the USA Journal of Pain Research 10, p. 

PIRE (2014} Washington State Roadside Survey, October 2014. Calverton, MD: Pacific Institute for Research & [valuation 

and Elvik. R. (2016b). Response Cannabis intoxication, recent use and road traffic crash risks. Addiction 111(8), 1495-
168 


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andtheriskoffata!carcrashes;Whatcanwelearn 

White, M, (2017) Cannabis and Road Crashes· A CJosc Look at the Best Epidemiological Evidence. Personal communication. 

mawhiteB@bigpond.com 
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170 


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National Partnership on 

Alcohol Misuse and Crime 

Institute for Behavior and Health, Inc. 

TOWARD A MODEL DUI LAW 

DUI National Model Law Initiative: Defining the Crimes 

An estimated 9,967 people were killed in alcohol-impaired driving crashes in 2014, comprising 31% of 

all traffic-related deaths in the United States.' An unknown number were killed in drugged driving 

crashes. Every state and territory in the United States has a system of laws designed to address impaired 

driving; however, the laws vary dramatically in scope and effectiveness. In order to remedy this, the 

Institute for Behavior and Health, Inc. (IBH) and National Partnership on Alcohol Misuse and Crime 

(NPAMC) began collaborating on a national model Driving Under the Influence (DUI) law in April2010. 

They convened a committee of prosecutors, toxicologists and other traffic safety experts to review a 

model drafted by NPAMC CEO Stephen Talpins based on effective laws from around the country. The 

committee was co-chaired by Omaha City Prosecutor Marty Conboy and the National District Attorneys 

Association's (NOAA) National Traffic Law Center (NTLC) Senior Attorney, Mark Neil. Committee 

members included: Clay Abbot, Laura Bailey, Lara Baker, Bruce Chalk, Lee Cohen, Roger Doherty, 

Elizabeth Earleywine, Laurel Farrell, Paul Glover, Susan Haekworthy, Robert Forrest, Jennifer Messick, 

Rodney Owen, Corinne Shea, Robert Voas, and David Wallace. 

The committee recommended several changes which were reviewed by Stephen Talpins and IBH 

President Robert L. DuPont. They adopted most of the recommended changes resulting in a model that 

represented the thinking of the nation's DUI experts. On November 1, 2010, they released the first set of 

provisions defining the crimes of alcohol and/or drugged driving and "internal possession" of chemical 

and controlled substances. 

'National Center for Statistics and Analysis. (2015, December). Alcohol-impaired driving: 2014 data. (Traffic 

Safety Facts. DOT HS 812 231). Washington, DC: National Highway Traffic Safety Administration 
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Model DUI Law: DUI and Internal Possession of a Chemical or Controlled Substance, Defined 

Section 

Prohibiting driving under the influence of alcohol or drugs; definition 

(I) A person is guilty of the offense of driving under the influence and is subject to punishment as 

provided in subsection (2) if the person is driving or in actual physical control of a vehicle anywhere 

within this state and: 

(a) The person is under the influence of alcoholic beverages, a chemical or controlled substance as 

defined ins. ___ , any other impairing substance or any combination of two or more of these 

substances while impaired to the slightest degree; or 

(b) The person has an alcohol concentration of0.080 or more grams of alcohol per 100 milliliters 

of blood, 0.080 or more grams of alcohol per 210 liters of breath at the time of driving; or 

(c) The person has an alcohol concentration of 0.080 or more grams of alcohol per 100 milliliters of 

blood or 0.080 or more grams of alcohol per 210 liters of breath at the time of driving or any time 

after driving as a result of alcohol consumed before or during driving; or 

(d) There is any amount of a Schedule l chemical or controlled substance as defined ins. 1 or 

one of its metabolites or analogs in the person's blood, saliva, urine, or any other bodily fluid; or 

(e) There is any amount of a Schedule 2, 3 or 4 chemical or controlled substance as defined in s. 

___ or one of its metabolites or analogs in the person's blood, saliva, urine or any other bodily 

fluid. The fact that a person charged with violating this provision consumed the drug pursuant to a 

prescription issued by a licensed health professional authorized to prescribe it and injected, 

ingested, or inhaled the controlled substance in accordance with the health professional's 

directions shall constitute an absolute affirmative defense against any charge of violating this 

provision related to that particular drug, but no other substance and not any other provision under 

subsection I. 

(f) With the exception of(l)(e), the fact that any person charged with violating this subsection is or 

was legally entitled to consume alcohol or to use a controlled substance, medication, drug or other 

impairing substance, shall not constitute a defense against any charge of violating subsection l. 

Section 

Prohibiting the Internal Possession of Chemical or Controlled Substances 

Any person who provides a bodily fluid sample containing any amount of a chemical or controlled 

substance as defined in s. commits an offense punishable in the same manner as if the person 

otherwise possessed that substance.' The fact that a person charged with violating this provision consumed 

the drug pursuant to a prescription issued by a licensed health professional authorized to prescribe it and 

1 Pursuant to 21 USC Sec. 812, Schedule l drugs or substances have a "high level of abuse" and "no currently 

accepted medical use in treatment in the United States." 2 This crime would be the equivalent of possession of a controlled substance and would be punished in the same 

manner. 
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injected, ingested, or inhaled the controlled substance in accordance with the health professional's 

directions shall constitute an absolute affirmative defense against any charge of violating this provision. 

NOTE: This provision is not a DUJ specific law. Rather, it applies to any person who tests positive for 

chemical or controlled substances. Because so many DUJ offenders are tested for drugs, we include this 

provision in our model. 

About the National Partnership on Alcohol Misuse and Crime 

The National Partnership on Alcohol Misuse and Crime (NPAMC) is a public-private partnership 

established to bring together stakeholders in the issue of alcohol misuse and crime in order to effectively 

change the way the United States justice system manages and rehabilitates offenders who misuse alcohol. 

Established in April 2008, NPAMC is comprised of more than 50 participating organizations and their 

representatives, including scientists and researchers, justice professionals, victims groups, treatment 

professionals, the corrections industry, pharmaceutical and technology companies, policy experts and 

distilleries. For more information, please visit the NPAMC website at www.alcoholandcrime.org. 

About the Institute for Behavior and Health, Inc. 

Founded in 1978, the Institute for Behavior and Health, Inc. (IBH) is a 50I(c)3 non-profit organization 

that identifies, develops and promotes new ideas to reduce the use of illegal drugs. For more information, 

please visit www.ibhinc.org and www.StopDruggedDriving.org. 
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same forensic testing strategies. ln this article, the advantages and 

pitfalls of testing d1ivers for drugs using biological samples, specifically oral fluids, are presentC'd. 

Forensic Testing 

Driving behavior is adversely affected by many drugs, including prescribed, over-the-counter, or illegal substances. Drivers 

under the influence of cannabis tend to think they are better drivers b(~cause they drive more slowly; however, their reaction time 

is also affected, so the abiUty to read appropriately lo an outside 

event, such as a child running into the road, is diminished. Cocaine 

and amphetamines (stimulants) may sharpen the reaction time 

of drivers, but also inc-rease high-risk behavior, such as speeding, 

or cause dangerous side effects in drivers (e.g., vision problems). 

Pain medications such as hydrocodone and ox:ycodone can cause 

drowsiness, especially at the beginning oftreatment cycles. 

Traditionally, officers test suspected impaired drivers for drugs 

by collecting blood or urine samples and submitting them to a 

forensic laboratory. Both specimen collections arc intrusive, require 

officers to handle biological samples (which most officers prefer 

not to do), and are relatively expensive. Additionally, each presents 

its own unique cha!lenges. Oral fluid testing provides some important advantages over both. 

Urine: Urine results do not correlate as well with impainnent as 

blood and oral fluid testing do because its window of detection can 

extend for days, especially in the case of marijuana. Further, only 

a gender-appropriate officer can collect a urine sample (officers 

should watch the subjects provide their sample), and it can take 

hours to provide a specimen. 

Blood: Blood is generally considered to be the "gold standard" in 

testing drivers for drugs as it reflects recent use and indicates drugs 

circulating in the body. However, only medically trained professionals may co!lect blood samples, so most jurisdictions need to rely on 

doctors, nurses, or paramedics to collect samples; in some areas, offi~ 

ccrs may be trained as phlebotomists. Problems with blood testing 

indude the time between traffic stop and sample collt~ction-it may 

take 1.5-2 hours to locate an appropriate individual to perfonn the 

collection. During this time, the drugs are dissipating from the driver's 

body, so lower drug levels arc measured in the laboratory test than 

were present at the time of the impaired driving incident. Further, 

in the jurisdictions where external professionals perfonn the collection, prosecutors often have difficulty proving chain of custody, and 

laboratories with limited resources might not be able to provide a wit~ 

ness for trial or might not have the instmmentation to test samples 

because blood analysis is more complicated and expensive than urinalysis.8 HowE'vcr, despitt> the associated challenges, blood confers 

an advantage over urine and oral fluid tests because it can be used to 

measure blood alcohol concentration (BAC). 

Oral fluid: The agreement behveen the results in blood and oral 

fluid in the 2007 NHTSA survey was largely due to the fact that 

they were collected almost simultaneously. As discussed above, in 

the real world, the collection of blood samples may take place a 

few hours after the traffic stop as medical personnel are necessary 

for collections, and that time gap allows drugs in an individual to 

dissipate. Oral fluid, which is essentially a reflection of free drugs in 

the blood, can be collected under the observation and supervision 

of an officer much more quickly following a traffic incident and is, 

therefore, a more reliable indicator of drugs present in the body at 

the time of the stop. Active drugs detected in saliva (e.g., THC or 

cocaine) are indicative of recent intake, not historical use. 

The cost for the laboratory analysis of oral fluid is essentially the 

same as the cost for blood analysis because similar instrumentation 

is used; an additional cost is that of the oral fluid collection device 

itself, which generally contains a pad and liquid buffer to stabilize 

<lnY drugs during storage a1td transportation; however, medical 

personnel are not necessa1y for the collection process, so the time 

and expense associated v.ith blood collections are eliminated. 

http:/ /www.policechiefmagazine.org 

The Admissibility of Blood and Urine Testing Under 

the Frye and Daubert Standards U.S. courts traditionally determine the admissibly of new or 

novel scientific evidence pursuant to the Frye standard. The Frye 

standard derives from a 1923 U.S. Supreme Court case involv~ 

ing the admissibility of the systolic blood pressure deception test, 

an early version of lie detector tests. The systolic blood pressure 

deception test was predicated on the theory that "truth is sponta~ 

neous, and comes without conscious effort, while the utterance of 

a falsehood requires a conscious effort, which is reflected in the 

blood pressure.~ The court ruled that scientific evidence is admissible only if its underlying theories and procedures arc generally 

accepted in the relevant scientific community orifthey have passed 

from the stage of expen'mentation and uncertainty to that of reasonable 

demonstrabUity.Y 

While some states continue to apply the Frye standard or a 

modified version, U.S. federal courts and the majority of states 

apply a "relevancy standard." This standard often is referred to as 

the Daubert standard aft:er the U.S. Supreme Court case that first 

employed it.w In that case, the court ruled that scientific testimony 

and evidence may be admitted only when it is reliable and relevant. The court held lhat the proponent of expert testimony may 

establish reliability and relevancy by proving that (1) the expert is 

qualified; {2) the expert employed reliable methods to reach his 

or her conclusions; and (3) the expert's testimony would help the 

fact finders understand the evidence or to determine a fact in issue. 

The Daubert court laid out a non-exhaustive list of five factors 

to consider in determining the reliability of scientific evidence: 

(1) whether the methods can be tested; (2) whether the methods 

have been peer reviewed; (3) whether there are known enur rates; 

( 4) whether there are established standards for applying the method; 

and (5) whether the methods are generally accepted. Since then, 

courts have considered additional factors, including whether the 

expert accounted for alternative explanations or inappropriately 

extrapolated an accepted premise. 

Law enforcement officers and others have relied on blood and 

urine testing for drugs for decades, and courts routinely admit 

blood and urine test results under the Fnte and Daubert standards 

when the samples arc obtained by a qualified witness using appropriate methodology. 

Legal Issues Pertaining to Blood and Urine Testing 

Blood testing is fairly intrusive, and officers typically need a 

warrant to extract a person's blood. However, most criminal justice 

practitioners (including judges) long believed that officers could 

collect blood samples from DUJ drivers under the exigent circumstances exc-eption to the wammt requirement because alcohol and 

drugs metabolize so quickly. However, that changed in 2013. 

In Missouri v. McNeely, the U.S. Supreme Court suggested that 

advances in technology, including telephonic, radio, video, and 

electronic warrants, have simplified and sped up the process 

enough to enable officers to obtain warrants in a timely manner for 

many DUI cases.11 Thus, the court ruled that the validity of warrantless blood draws must be decided on a case-by-case basis. This, of 

course, makes it far more difficult for prosecutors to introduce test 

results in the absence of a warrant As a result, many jurisdictions 

have established procedures for streamlining the warrant process. 

Unfortunately, even the quickest electronic systems can slow the 

process and result in lost evidence due to metabolism. 

A large percentage of DUI aJTestees, particularly those with prior 

arrests, refuse to provide evidential samples for testing. Although 

no national data exist regarding the frequency of drug test refusals, 

there are significant data on analogous breath alcohol test refusals. 

In 2011, the average breath alcohol test refusal rate in the United 

States was 24 percent.11 In order to compel DUI arrestees to provide 

evidential samples, most states have enacted laws requhing officers 

to suspend or revoke the licenses of drivers who refuse to provide 

THE POLICE CHIEF/JANUARY 2017 59 
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samples when officers have probable cause 

to believe they are impaired (these laws 

are commonly referred to as administrative license revocation or ALR laws). Some 

states have gone a step further and passed 

l<1ws criminalizing such refusals. In Birchfield v. North Daknta, the U.S. Supreme Court 

ruled that states could not criminalize blood 

test refusals since blood testing is so intrusive (however, the cou1t ruled that similar 

laws applying to breath test refusals are 

acceptable since breath testing is minimally 

intrusive).D 

McNeely and Birchfield did not address 

urine testing, However, there is a reasonable possibility that the courts will extend 

the rulings to urine testing because of the 

privacy concerns it raises. In fact, the Minnesota Supreme Court recently did so in 

Statev. Thompson. 14 

The Admissibility of Oral Fluid 

Testing Under the Frye and 

Daubert Standards Oral fluid testing is relatively new when 

compared to blood and urine testing. However, laboratory testing of oral fluid specimens incorporates validated protocols similar 

to currently accepted practices for blood testing. Thus, the analyses are extremely reliable, and there is little doubt that the tests are 

admissible under Ftye and Daubert. 

On-site devices, however, are a different 

matter because the quality varies vvidely. 15 

Most jurisdictions use these kits as screening devices to identify drivers from whom 

additional biological specimens arc to be 

collected for laboratory testing. In these 

cases, the results' admissibility is not a significant issue. In jurisdictions that wish 

to use the results for evidential purposes, 

officials need to carefully determine the 

scientific underpinnings of the devices they 

use and the evidence they can cite for their 

reliability. That said, it should be noted that 

a judge in California admitted on-site oral 

fluid test results from the Drager Drug Test 

5000. 16 

Le!!allssues Pertaining to Oral 

FlUid Testing As noted herein, the U.S. Supreme Court 

held that (1) there was no per se mle allowing law enforcement officers to obtain 

blood samples for forensic testing from DUJ 

subjects without a warrant in McNeely and 

(2) that states cannot criminalize blood test 

refusals in Birchfield. However, the authors 

do not believe that the court \-vill extend 

either of these cases to include oral fluid 

drug testing. 

In Maryland v. King, the U.S. Supreme 

Court recognized that oral fluid DNA h'sting is far less intrusive, dangerous, and painful than blood testingY Accordingly, the 

court held that taking a cht.'ek swab to verify 

a person's identity through DNA testing is 

http:/ /www.policechiefmagazinc.org 

a legitimate police booklng procedure and 

permissible under the Fourth Amendment. 

Based on -this precedent, it is probable 

that the court wi!l tre<1t oral fluid dtug test~ 

ing the same way it has treated oral fluid 

DNA testing and breath testing. In other 

words, it appears that law enforcement officers may obtain oral fluid samples for drug 

testing without needing to o blain a warrant, 

and stales may pass taws criminalizing oral 

fluid test refusals. Assuming this to be true, 

oral fluid drug testing confers significant 

advantages for law enforcement over blood 

and urine drug testing. lt is, however, rec~ 

ommended that police leaders consult with 

counsel to ensure any collection policies 

align with state or federal laws. 

Current System Failures and 

Consequences 

Unfortunately, in most U.S. jurisdictions, 

officers do not test impaired drivers for 

drugs -unless they provide blood or breath 

samples below the legal limit for alcohol as 

a matter of standard operating to save the 

time and expense associated with the testing process. More than 1.1 million people 

were arrested for DUl in 2014.10 No one 

knows what percentage of those drivers 

had drugs in their system, since the states 

don't separate drugged drivers from alcohol-impaired drivers, and, more important, 

the vast majority of impaired drivers are not 

tested for drugs since they test above the 

legal limit for alcohol.19 

The failure to identify and properly 

prosecute drivers for drug-impaired driving may have significant direct and indirect 

consequences< In every state, probation 

officers evaluate DUI offenders for alcohol and drug problems and refer them to 

appropriate treatment programs. Unfortu~ 

nately, offt•nders often minimize or deny 

their issues; therefore, they might evade 

treatment that can alleviate their condition. 

This may explain why DUI recidlvism rates 

are relatively high. In Norway, researchers 

followed 1,102 drivers who tested positive 

for drugs and 850 drivers with blood alcohol levels behveen 0.16 and 0.19 for seven 

years. They found that the drivers who 

tested behveen 0<16 and 0.19 recidivated at 

a rate of 28 percent, while those who tested 

positive for drugs recidivated <1t a rate of 

57 percent (more than twice as often). 211 If 

impaired drivers are not tested for drugs, it 

is impossible to know which group they fall 

into, thus hindering proper treatment and 

recidivism prevention efforts. 

Proposed Solutions: Oral Fluid 

Testing 

Currently, many officers have advanced 

training as a Drug Recognition Expert 

(ORE) or in Advanced Roadside Impaired 

Driving Enforcement (ARJDE). However, 

many drug-impaired drivers continue to 

evade detection at roadside contacts because their conditions are attributed'to others factors, such as drowsiness and medical 

conditions. Roadside oral fluid testing can 

assist officers in developing probable cause 

for arrest by providing objective and scientific evidence, just as officers may use 

preliminary breath testers (PBTs) to con~ 

firm alcohol impairment. Further, using the 

devices at roadside minimizes the chances 

that evidence will be lost through metabolism. Officers who use on-site devices in 

this manner are cautioned to consider the 

results within the totaJity of the circumstances, not simply rely on the results as a 

stand-alone basis to make an arrest. 

Several years ago, practitioners and researchers suggested testing all DUI arrestees for dmgs. 21 Screening arrestees Mth 

blood or breath alcohol levels above the 

legal limit with on~site oral fluid devices 

and collecting samples for forensic testing 

for those that screened positive (the "Miami 

Protocol") was recommended. The protocol 

would have two significant benefits: First, it 

would enhance DUI prosecutions; second, 

and more important, it would provide a 

cost~effective way to identify drug·impaired 

drivers, thus providing the information that 

probation officers and treatment profes~ 

sionals need to better monitor and rehabilitate probationers. In the ideal world, officers 

would collect samples for laboratory testing 

immediately after a positive screen to mini· 

mize the loss of evidence. 

This solution has not been evaluated in 

depth; however, various parties have condueled preliminary evaluations. In2012, the 

researchers partnered with the Miami-Dade 

County State Attorney's Office, MiamiDade Police Department (the local sheriffs 

office), NMS Foundation, and the Center 

for Forensic Science Research and Educa· 

lion to evaluate the efficacy of using two 

on-site devices to screen dmgged drivers 

for additional confirmatory testing. Interestingly, 39 percent of drivers Mth breath 

alcohol levels of 0.08 or higher tested positiw for at least one drug category.22 None of 

these incidents of drug use in drivers would 

haVC' been identified under the trdditional 

standard operating procedures, since they 

had already tested above the threshold for 

alcohol impairment. The officers who participated in the evaluation liked the kits 

(one even referred to them as a "blessing").23 

Several other jurisdictions have conducted similar pilot projects demonstrating 

the efficacy and utility of oral fluid screening. For example, in California (in 2014), 

officers used two different brands of rapid 

screening devices at four sites. There were 

less than 1 percent false results, both positive and negative, on the devices when 

compared to blood or evidential oral fluid. 

In Vermont (in 2015), officers used both 

devices, as well, and achieved less than 

THE POLICE CHlEF/JANUARY 2017 61 
177 


35235.146
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http://w>Hv.polici!chiefmaga:dne.org 

":1.::e Fcdcrill !lun:0u oflnY\'Sllga.l!on, "Crime in \he Llnit€d States 

2014,·· t,,blc 29, E>lllnilt.::d Number of Anc~ts, United Stales, 2014, 

fHE POLiCE Clf!H/JA~TJA,RY 2017 63 
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35235.148

Volume XVIII, No.2 ISSN 1091-4684 Pages 25-48 Spring 2014 

Evaluating the War on Drugs: A Behavioral 

Health Perspective . . . . . . . . . . . . . . . . . . . . . • • • • • . 27 

License Revocation as a Tool for 

Combating Drugged Driving ....••..••.•.••.••. 29 

Legislative Update .•.•.•......•••.•.••••..•.• 31 

Evidence of Impaired Driving Not Required 

Prior to l.icense Cancellation ..•.•.......•.•.•. 33 

Worth Reading ..............•.•.•••••..••••• 35 

or Neutral? The EfTtYts of' Parental 

Adol<'srent Drinking on College 

~tudcnt Alcohol t lsr and Proh!cms 

Planned Protective 

• nv.:dliug Oil "Ro;td Rag<'": Tlw Effn't.'l. of'lbi! Rumillation 

on Aggres~iw Driving 

Pets as a Risk Factor for Motor Vehicle 

• DilftTt'lllial Striatal l)opamine Rcs.pon:'>es Following Ora.l 

Alcohol in Individuals at Varying Risk for Dependence 

Adolescent Substance Abuse ........•.••••.•.•• 40 

@?014 CIVic Hesemch lnstllulo Photocopying Gf othN reproduction wiThout IMittc•\ pnrmission is I}Xpmss!y protllbite(l and is a violation ()f copynght. 
180 


35235.149

Spring 2014 Impaired Driving Update Page 29 

License Revocation as a Tool for Combating 

Drugged Driving 

hy Stephen K 'laJpins,JD .. Robert L. DuPont, M.D., Robert H. Vo;cs, Ph.D., Erin Holmes, M.A., Kc>in A. 

S.ahet~ Ph.D., and CorimH: L. Shea, M.A. 

Editor:r Note: ,15 mm1' and rnarr' stafl'..'.' nm· 

temf;la/1' der:riminali=.ing ltm>-l.rvrl dmgs, law 

mfrm:rnu>nl and f>O/iryrnakn'S hmtt' f>:>.jtro .. .>ed 

amcerns about tlw t;{jfcl of grmlt'r <u:cess lo 

drugs. liPt'Ktlt mjmrts indira/P that mun' thau 

2 5 <JG f!!hifi,.rlt ,\thool .wtti<m ha:ve either driwn 

r~fter using akohol w dru~·, w btvw thr jJassengr"rurith smfU'fmewho has, and the rates mr 

r::t.'fm:ft'd !.o incrmse. l&d-t•s among this cohm"t 

or drirtinl( ajirr smoking mm-ijtuma Junrt' 

iwmt5f'd mlf'r llw fHJsllhrt•l-ymrs. ( Palrirk M. 

O'lvfalley and Uayd n Johnston, "Driving 

/Vtrr/}ruffC!l"Akolwll!w'hv ll.S. 1/(s_,rhSdwol 

Smiars, 2(XJI-2011, "r1m.J, Puhl. 1-JmUh 

(201 J}.} 'Jfu: artid.r bdow remmmmrll f}U' 

tool with wludt most law 

rm• aimH~)'fmnih{lr-­

a wa-v to .\trm th~ fnrtlirtNi 

i11creo.,\'f.'S in thtse activilie~. 77u' authon; argw• 

awt tlw devdnjmwnt <![a modd AIR jmmisiml for drug].,red dri<Jf'l"l would Sf'fVf! as ouP 

<lltltudl/,• uu>l.hod t!fmainhrining Sf~fi'ty on tht• 

mrui~ os other laws mul ngultllions dumf...re tl!C 

lmu!sr:ape a_{ impaired driving. 

Forty-one states and ttw District of 

(:olwnbia have impknwnled admin~ 

istratiw lin·nse revocation (ALR) laws 

that rcquirC' law enforn•ment ot1lcers 

to immedia!(~ly'1-'eiZ(' the driver's lin~nses 

or individual~ tlwy arrest for driving 

while impair("'d (l>Wl)/driving nuder 

th(' infhJerKe (DUI) who rdiiS(' to provi<k a blood, lm•ath,()fltrinrsamplt·l~w 

toxic'{•logi<·altestillg <~r pmvi<ie a san1pk· 

and test at or above the O.OWX1 illegal 

BAC f(w akohoL (The states use varying termino!oh')' to desnilx· and defi,{e 

dw nimc of impaired driving, For the 

pllrpn~{'S of this anick, the authors use 

dw term DWl/DUl.) Trame safely and 

akohol polky <'xpens generally n·<·ognii'.e !hat ALR i:-; au dTective stratc~gy 

to reduce akohol-irnpaire<l driving. 

(T N(•lson, et aL, "Efficary and dw 

StrC'ngth of Ev·id<·nce of U.S. Alcohol 

<:onirol Polides,"' 45(1) Arn.J. Prev. 

Med. 19 (20 I :1); Na!ional Transportation 

Sal'et)' Board, "[k,lching'l_,('To:;\ctioJIS to 

Ellrninat<' Akohol-lmpair<xl Driving," 

Safety Report (adopted May l-1, 2013).) 

ALR SllSI)(:JlsiollS pnHc(·! the pldJlic 

by removing dang;crous drivers from 

!lw m;ulwaysand dl'ferimpaired drhiug' 

through th(' provision ofs\vin, rcnain, 

;nHluwaning;ful.~anclions. (/\. W;Jg('-

naarand M. Modomul~) Molimt, "Eili.'ns 

of DrivNs' Liccns<' Suspension Policies 

011 Aln)hol-Rdated C:rash Juw)IWIH<"nt: 

l ,ong--l(•nr~ F(1llow-lJp i11 '16 Sta!('.S," :'ll 

Alcohol Clin. Exp. Rt•s, I:N9 (2007).) 

Unfor!lmatdy, only a fc.•w stales, sudt as 

Ari:~ona and Mit hi~<lll, haw <l simihu 

provi'liOH f(n·drivrrswhotcslj>Osi!ive fix 

dmh'"S. (See, c.g.,.J. Lan·y, K. Hraiuard, 

and S. Snitow, "Drug: P{·r s,. I .aws: A 

Rcvi('W of Their Use in Statt:s," NI ITSA 

(JuL 2010).) Hut the d(·vdopment of <t 

fll(ldd ALR pnlYi:-:ion for dru~gr·d driv--

ers, if it i.'> widdy adopH·d, b n udal to 

pnniH)J\' \rani<· sal(:ty. 

Prioritizing Drugged Driving 

Few people appn·ciatt·d tht: daH/:{('fS 

and signilkance of alcohol-impaired 

driving until thc l<mnding of Motlwr~ 

Against Drunk Driving (MAUD) in 

IDHO. MADD humanit.cd the nime hy 

putting a htn' on its vk!im.s, Sin<'(' that 

time, states have pas~wd humlrnb of 

laws aodjustice olTkiats. haw devoted 

tn-!n<'udous n·soutTl'S tow>Inl redlKing- t!w problem with pronounced and 

dntmatic results. 

Declint> in Impaired Driving. The 

p('IT('Htag·e of drivers with l\AC.~ at or 

ahnw O.OH% ha.'i S!<'adily dedi ned 'i.lnc(' 

the I ~IBO.s. In i!l7~, 7 .:~% or weekend 

nl~hllinw drivns had HACs ~rrater 

th<tn or equal to O.OW}f,, Th(' pern•ntag<: declined tu !)A()h in l9t-10 and 43% 

in !996. In 2007, oulv 2.2% of driveLS 

had BACs at or abn~e O.OW.Xl, whi< h 

repn'S{'!lts ~ 70% n·<hlctiOll since 197:1. 

(R. Compton awl A. Hnning, "Results 

of the 2007 National Roadside Survey 

of Akoho! and Drug u~w by Drh-'<·rs," 

Tra!lii"SaktyFac" (ll0T!IS8lll7'>), 

Jul. 2:00~.1.} Many LK!ors nmtrihut('(\ to 

tlli:'i- n•dJtctiOil, ilKiuding til<' ad{}ption 

Of per SC J:\WS, n·thKtiOll of tht· ifkg-aJ 

limit, incrc;_t•wd ('llfnrn·mt·nt, and th(• 

passage of AI .R laws. 

No! surp1 i.~ingly, this change· ha~ 

helped saw thott~mds of lives. (O!lwr 

st)Iuti<HIS a!so have cotltrilnHcd to this, 

indudinR safer c.n-s, inn<'ascd sf'atbclt 

11sage, airhah'S, <Hl<llwtter i!Wdical care.) 

I11 l~IH2, over2l,OOO people were kille<l 

in nashes in which al least one drive-r 

had a BAC at or above 0.(}8%, In 2011, 

less than 9,900 people wen• killed in 

crashes involvinK a drivf'r with a BAC 

of O.OH% or higher. l1udng that same 

{j!llt' [)('fiod, the pen·ellt<lge ofl1igllway 

Ellalitin; attributed to 11kohol-impaired 

drivrrs dropped from 1H% to 31%. 

(Natil)nai 'lt-alt<>portatiOtl Safdy Hoard, 

"Reaching: Zero," supra.) 

!hugged Driving Overlooked in 

Prior Polk")'making. UtJil:)rHIJlatcly, th~· 

inn·(·a:wd undnstanrling of alcoholimpaired driving did noi result in a 

commensuratP appn•dation for drug~ 

impaired driving. In fact, the ft"deral 

government did not h(:giu to colkct 

data Oll dmg~impaired driving through 

the National Roadside Survl:'y until 

the fourth snrvf·y administration in 

2007 (ilH>Itg-h rcsean·l1crs conclucting 

the Monitoring the Future study have 

ask<·d high sdwol .'itudents about their 

drugg<·d !hiving bd1avior). That snrv('Y 

revealed that I G.:\% of nighttime drivers had a, potentially impairing dmg or 

drugs (induding medit.·ations) in t.he-k 

systCIIIS. (('.on1pt.on aml Bernittg, supra .. ) 

Thb alarming nnmlwr spurred President Obama'.s first drug czar to make 

drug-ged driving oue of thr(·c SIJ-atcgk 

pdor~tieli in his office. I 

l)nving i-; a nllnplex t~tsk. Manynwdications and illicit drug-s can impair a 

person's ability to driv<• s:o\f{--ly and the 

H'stilt!i may lw df'va.<;tating. (S<-'(', e.g., 

C. Stough and R. King, "ThC' Role of 

Akoltol and Otlu~r Dmgs in Road Deaths 

and Serio11s lrljuries," 12 Dntg Prev. Q. 

lssw•l'aper (Mar. 2010).) ln early 2010, 

re.,earchcrs at th<· Nalional Highway 

Traffic SafCty Administralion (~HTSA) 

reviewed da~ from the FaraHty Analysis 

Reporting: System (FAR~:)) betwren 2005 

and ~009 fO dctennine the prevalence of 

(!rug· ilSt:' in f~ttally it~jmwl (hivc-rs for the 

.~ [)JlfJGGTW DR/VJNG, rrext page 

©2014 Civic Research Institute. Photocopying or other reproduction wl!hout written permission is expressly prohibited and is a violation of copyright 
181 


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Page 30 

lJ/WG(;t,1) OIUJIIN{;,frmn {>al{l' 29 

Jirst time since 1970. In200!\ 2W!f, of the 

driven; with known n·suhs tcst<'d pmitive li:w a potcwiall} impairing dmg or 

drug~ (indudin14 mcdinuions), In 2009, 

:B% ofdriwrswith known results kS!('d 

positive. ({J.S. l)epartli!Clll of'l'ran:~pot'"' 

t;Hiou, Nl ITSA, "Drug involveuwn1 of 

Fatally Jr~jnn·d Drivers," 'l'raHit Safely 

Facts (DOT !IS HI I 11f>). t\ov. 2010.) 

Target to Reduce Dmggcd Driving by 

2015. LatfT that y<•ar, tlw Whitl' I lome 

Oflk(' (>f Nati<mall)ntg (:ontroll'<Jiiry 

(ONDCP) anno1mn·d its new initiative 

10 decrease !he prevaknn• of droggt'd 

driving iu th~· Unit<•d States hy 10% hy 

20 l :). While t!rt~t 1-{0al .st't'IliS llll<tttaina\)li' 

giveu denHk.:-> of inenia, it is important 

to noll· tlmt is being made in 

Impaired Driving Update 

Potential Effic:aL)' of ALR Laws 

i\s noted <ti)OV<', ALR f!;t>lH'rally is 

nYogni1ed a" one ol'tiH· most dl(•e~ivc 

"tratq.;ies t<l n·<ltJCt' ;)!nillo!·itllj)<tirt·(l 

driving. R<·srarchcrs estim;ll(' that AI.R 

bws rcduet· <lkoho!-!datnl nualities 

;}~if· to ~H{, or approximatdy ~00 

(Natimtal rr;rllSIJ•Orlali<m 

Safety Board, "Reaching :!,ern. '>Hpra.) 

Illinois, New M<'xico. Maine, North 

(;aroliJia, ( :olorado, aJld 1ltaiJ <·xpcriencnl .signifinm! drops in tht'ir fatal~ 

ity ratc1. .tfkr passing ;\I.R law'>. (U.S. 

lkparllll<'nt <>f'll<ntSt}(HUtion, Nf I' I 'SA, 

''Administrative 1 jccnsc Revocation," 

"l"raffir Saf{·ty Facts (D(r!' fiS ~ 10 H7H), 

.Jan. 200H.) 

Af ,R laws arc snn·(·s~htl in no small 

par! lwcm..,c 

~·,·naiii,<~!Hl 

1wss is rritictl h<'raww: 

ALR generally is recognized as vne of the mrut effective 

strategies to reduce alcohol-impaired driviug. Researchers 

estimate that ALR laws reduce alcohol-related fatalities fry 

5% to 9%, or approximately 800 lives per year. 

[n 2012, NI I' I 'SA A(llltinistrator l)avi( l 

Strickland ami ONJ)(:P Din.'{'!\)r R. ( ~il 

Kcrlikowsk(' convem•d a lll('eling of 

nationa,l <'X perfs to disn1ss ltw ('X!i'J\1 

oft he di·uggcd drh·ing problem and to 

identifY pott:-tllial stratcgi('S for n·dudng 

it. 'l'hc conHllilh'<' di:<irussed the ilnp1H""-

tann• of developing more sensitive. 

specific, and dlkictl! tneans fix test in~ 

driwrs for tlw presem·e of drug-s ;md 

impkmt•JHing pn ;.,(' druggrd driving 

laws. The authors and otlwr <'xpcrts 

di~n1ss these solutions at length in 

oth('r ;u-tkk·~- (S('(', e.g., R. DuPnnt. R. 

Voas,J. Walsh. C. Sht'a, S. Talpins, and 

\1. Nail, "The Need for Drugged DrivingPcrSe I.aws:AConHnen!ary," 1:1( l) 

Traffic Inj. Pr('v. ~)J ('201~): H.. Dul'on!, 

H. Logan, C. .Slwa, S. 'blpin:-~, and 

R, Voas, ''[}rugged Driving Ri'Search: 

A \Vhite Paper,"' InsliltHt' for tkh:wim· ;uHll1<'alth, Mar. :~1. 2011, av;1ilsnppon. 

:;n·r- m~H"<' reinr(~J"dngor JHlllishinl{ 

than those lll<H ocrur bi{'C . Tim· 

ing nl<.t!!f'rS-pllllishllH'HIS ('XjJ<"·-

ricucnl soou af!cr tht' uffcnding 

hc:'havi{w an· much mon· eflf:-ctivr· 

in shaping- bell;tvior lkm punishnwllts 1 hat ocn11· lah·r. (\Vagcnaar 

and Moldonado· Molina, supra, at 

13~19.) 

'lh illustrate this point, con!rast dw 

inHI\('(!iat·y all( I cntainty ofALR su.-.rwn · 

sions wi!h criminal prosecutions. nwv l}Ul nt<;t'$1)fi.en t:Jkt' lx·tw(Tll six..nu.mths 

and 1\\'0 year<:. to pmsnut<· in criminal 

coun. Research shows that th<' bck of 

in the prmvss ltndt•nuiJws the 

,.rf .•••. ,;, •• ,,,., of [lO:-il·tO!lVf{"!jOJl S£\liCtiOH.'i, (ld.) 

l'ol'HlH:-tlt'ly, traffic s<~f<'IY professionals <UT lwg-inning to recognize the 

poH'lll ial for an AUt bw l{n drug~cd 

driv1'11>. (}njtlly 2·J, 2013.( :ltris \.1mplly, 

thc!Hlin·nor oft he (:alifomia (lJlin· tlf 

Traf!Jc Sah·ty, in nmsultation with !he 

ant hors, propost~d that th<· ( ;ovcruors 

I Iip;hw;ty Safely 1\.sstwiatiou {(;lISA) 

Spring 2014 

;tdopt a policy position on ;\LR for 

drug-g<'d drivers: "'GIISA PtH'onrages 

States ro COJI':liderex!)<HHting theirexl•Hing Administrative Jjccnse Rcvocmion 

(Al.R) la\\o'S or t ·naning new ALR law~ f(H' 

drug-impaired driwrs who fail or refuse 

a drug tcsl." On Attgmt 2:1, 201~{, tht' 

n·sohnion p~l~:>.~ed. (S('{' GllSA, httjJ.// 

wrmu.(;ffSA.org/lttml/l:uurs/imJ){li.wddrir,_ 

ing/indt~>::.htmL) 

Convicting Drugged Drivers 

f\'1ostjustin: profes.sionaJs bt'lieve that 

the COIIVictiOll ntte for dn1gged ({rivers 

is lowPr than it is for akohol-impaired 

dl'ivcrs l(w multi pit• re<L'>ons, most uota-

!)ly bermtse then ..' i!i no "perse" limit for 

drug tl.:>t' like then~ is for alcohol in most 

S!<Hc.s, (Currently. 17 states haw some 

type or per St' drugged driving' Javn 

UnhJrtltnatcly, tlw f(·wjurisdi(:Jions th;tl 

('OilSislt'lttly track theirn•spectlveconviJ:-.. 

tion raH':S {()r DW[/DUJ ofi<'mkrs do not 

distinguish hc1wecn akohol~ and drugimpaired dlivt;rs ':!O thn<' is a lack ofdat;\ 

to support thi.~ helit'f. Rqpnlkss, ALR 

suspensions gennally are not afff·rted 

hywhat happens in criminal conn. ALR 

lhns t'IUIUr<~s thai the publir ren'ivcs at 

!ea .. <>t some protection from drivers who 

CV<Hie .'III('CCSSftlJ pt"OSCCUiion. 

Model ALR Law for Drugged 

Drivers 

'J'lw Instit1Jteforlkhavioran<1lkal!h 

(IBJ f) rnot:ld ALRlaw for drugged drivers currently in d('vclopnu~nt requires 

ofrict"rs who hav<' probablC' c<tww 

to l)('li(·ve that a persou drove while 

impain:d hy aknhol and/or drugs to 

sn•sp('IHl that pnson 's license- if (a) iJw 

driver refuses to lw lestcd Hw dn1g:-;.; or 

(h) te:<ns positive f{)r any .ch("mlntl or 

coutrollcd subs1ance (n•gardles.s of 

an1ount) .An offkerwhoscizt•s a drivt.f-'s 

lie enS<' mmt i&'im' tlu~ driver a 1 (klay tt'lllporary permit if the driver is otherwise 

eligible 10 drive and also give the <hiver 

tt notice of suspension. The driV<•r may 

request a(hninL'ltrativc review of the st1:-r 

fWtlsiou in at"c:ordann' with frderallaw. 

(The Unih~d States Supreme Court has 

n:rwatedly r<'cogniZ<·d thal the suspension or revocation of a driver's lin·nse 

imp!icat('S a properly intnest and that a 

sl<ltC canllol MISJ)('nd a person's lin·nse 

wiUlout du<' pron~~ oH.1w: see, e.g .. Bell 

v. Burson, ·f02 U.S. r,g59 (1971).) 

.\·rt DRUG(;[\'{) DRJvrN(;, pq.,'(' J9 

©20 14 Civfc Flmlearch lnsiitute. Pho!Ocopying or othm reproduction W!thout writlen permission is expressly prohibited and is a violation of copyright. 
182 


35235.151

Broadly Cnvt"''S Chemical Substances. 

The current draft mod<'l i.~ wrill{'n in 

broad to all < hemical 

choose to limit their law~ to 

~HhsJatHTS or ewn :->pccifir controlled 

!>uhstance">; of course, liu• broader ihc 

'i!a1ute, tlw \'>'i{krthc net and tlw ~n·;Hcr 

;md t'nforcc it compan·tl to 

n;uTnw!y dcfim·d sututc. 

cr:- ;n·r c;HHiont•d to consnh 

drl\illg JHohlnn 

t(·g-i'>Llli(Hl. 

NccdforOn .... '-;iteT~iingCapabilitics.. 

l'!w mudd a:..snnws that bvv enforccnwnt olTicrrs haH· the of 

for 

St'<' DJWCGFD f)JUVING, tw.d ~tgf' 

©20i4 Civic Research !nslilli!e. Photocopying or other wproduction witMut wriHen pNm1ssion is expwssly prohJbi!Hd and is a violation of copyright 
183 


35235.152

Page40 

tlH· booking pron·-;s}. Expcri('nn· in 

those statt's sarh a:; Ari/.ona and Ml( hi 

that hav<' driving- ALR 

dday invo!·vcd 

laboratory for 

Impaired Driving Update 

l. \\'hom 

,\Jld 

2. \Vhu,dqwndingon th('st<Ht' law, test 

a dmp;ged driving AI .R 

In a Norway study, the re·arrest mte among dru&'Iff!d 

drivers was twice that of alrolwtirnpaired drivers. 

nmdu(! such drug H·s1s on account of 

limited resourn•s. 

The !Hodel indml('S IHlmerousaurho--

Mirrors Traditional ALR L.~ws 

Tlw IBI I modt'l law mirrors 

tiona! J\LR hnvs i{)f drivers arr<"s1ed !i:>1 

syst('m.should tailor it to th"·ir res.pcnivc 

needs awl ensure that it i:. rompatihle 

wi!h runTnl laws, 

const•nt hnvs. (.Sec Sidebar: 

of Model l.;;l'A.) 

Tlw modd also dimina\('S tlw SC('nl~ 

ingly anoma!nussitlmii()Jl i11 which driv~ 

for driving or abovc dw Hlq~al 

without ;my »howing tha! llH')' \verc 

imp.ain·d hy akohol, a kg:tl suh~t;mn·, 

but not hH· driving: with an illicit dlllg 

ordn1g." in tlleir:<>ystcHL<; n1dcss lfw state 

can prove impamnenL 

Addn""' Drugged Driving to 

Reduce H 

is a lmrgt•on~ 

States that 

l)rugged drivt•rs 

Sp1ing 2014 

1~)92 f(n' impaired drh'l11g fOr a J>eriod 

of sewn y<'ars. They detf·nninr:d that 

thr rc-arrt'st rate among dmgged drivns was twice !hal of akohol-impaired 

drivct'S. (A. Cluistopherscn, S. Skurtveit, 

M. (~rung, and.J. Mord~uHi, "Rt·~anest 

Rates Among Nonvt•gi;m Dmggt"<l Driv-

('rs Compared to Drunk<:u Drivers,"(){) 

Dmg and Ale Depend. 8:1 (2011 ).) 

AI .R reduces alcohol-impaired drh·-

lng; logic would dictate 

tl1ai1 akoho!-inlpaircd drivers, ALR hn¥!'! may have an even biggt•r 

dlcrt among this oiH'ndcr population. 

TiH' simple tmth is that the problem 

will not .solve it~df; W\': IH.'"C'd to addrt'ss 

in order to rednn: iL 

scratch or rdnvcnt the wht'cl. W<· can, 

aJH 1 shot!ld, replicale and applynwtho(i~ 

that haw been shown to redun~ alco-· 

hoi-impaired driving in an <'ffort to 

addr<_'S.'i the drugg('d driving problem. 

(R. DuPont, S. Talpins, and C. Shea, 

"Comnwntary ou·Romano & l}ollini: 

Stopping Drug--Impaired Driving and 

Alcohol-Impaired Driving-Synergy, 

Not " 108(8) Addiction 

i'J:\9 

See OR[J(;(;z::J> DNJVING, nat page 

@90i 4 Civic FleSBarcll1nslHule. Photocopying or oltler reproductiOn without written permission is expressly prohibited and ls a violation ol copyright 
184 


35235.153

Spring2014 

HRUGGEn f)RJVIN(;,_from p..1ge 40 

The authors renHHllH'IHl piloting an 

ALRlawthatapplie••ll)dilJMt'ddtiv~'J~atul 

r("$t.';Udlillg- it~ cm·n. All <L'~fX't"t'i of such a 

Ia\"' should he studied, induding-k<t~ihllily, 

impkmeHtcllion, dkn, and dh•rtivt'm""'· 

I£C:ISIATIVF UNM.TE,friJm fHI!.,'i' J2 

violation of a rena in prohibition 

on the HS<' of a hand! wid telephnm· 

while operating a motor vehicle. 

Act No . .:n I, signed hy the governor 

on May 2, 201!,, ahers. tiH• ddinition of 

a mowr V('hidt• wyxpand tlw types of 

vehidt·s fi>rwhich an on·n[MlH is prohibited !rom nmsuming or pos._•wssing- an 

alt·t>iHJiic lx-vera.ge iJithc f>~L''>s<·ngtT an·a 

wtli!t• on a highway to inch1de low :;peed 

\'('lticfl·s, HlO}WdS, aJHI IllO!(lr Set)()lt'Pi. 

Michig-.an. Act No. :-kl. signed hy 1 !w 

governor on May 21, 2013, res!ri('f'> 

st·nding- and r<·ceiying text nws.-.agcs, 

and using a handhdd mohik phouc, 

whik opt•rcuing a connHC'ITial vehide 

or sdwnl bnS. At I No. 2:-l, sig-ned hy llw 

governor on May9, '201>). m:iint.tins tlK 

<-lkoho! nmt('lll hlr individnals operatin).; a vchide HIHl{•r the inJ1ttt·nn· o! 

akoholic liqnor at (LOH% wi!lwut <1 

reversion hark tu 0.1 O{)i,_ 

Mi.~ppi.At·l N().'1H9,siglH'IIl}ytll(' 

guvcmor on April II, '!013: 

• l'rovid<'S 1l1a1 per'>Oll'> convicted of 

Dtil will 1mly he allowed to opcratt· 

<t ve!Jid(' equippt·d with <W i~ni!ion 

inH·rlockdevice; 

• Pr\)vldcs for a ig-nition-in!erlockn·strinNI driver's license: 

• Removes hardship 1wm'i.~ions; 

• Cn~ates an aggrav.Hcd kvd or I he 

OfJi:'JlSt'; 

• RequilTS mand;uory prohatinu; 

and 

• Provides for the t:xpunction of (Cl.._ 

tain ronvinions under Sjwcil'icd 

rondit ions, 

Impaired Driving Update 

111 ilw ( :tmhm, li1t1h, awl I Jhf/1/l(f i\d!lil/1!1/lil/wu.•, 

Mito;.'iOuri. S :127, sigrwd hy ! he 1;ow-rnor on Jnly :), :?0 I~~. authol'i.tcs tlu: liSt' 

of a coun-approved privati' prohatioll 

snvire by the DWI rourt, and makes 

cllattges\·onn·nling hot1sc ;trrcsi oni~Ts 

and tlw cost of ('kctrouic monitoring. 

Montana. Act No. 1 ;,;!, -;ign(·d hy 

the governor on April!), 201:1. provides a It-gal limit lor the amount of' 

dt•lta-9-u·tJahydrocannahitH'l alhlWe(l 

in a p{'t~'()!l \; hiood whil-e 

molorwhidc. Ad No.~()~}, 

the gowruor ou April 2ti, 

expaud(·d tlw state's 21/7 mbricty program to indud(• otlwr niuws in 

wllicl1 the abuse tlLtln>ho1ordang-('nlttS 

drugs wa:-. <l coulributing !~1nor in !lw 

cnmmis._'lion of thr t rinw. 

Act ~o. :127, sig-ned by the gowr· 

llOI' 011 April :?q, 20 U. n·vi'l<'d .tkohol 

(·ttforn·nwnt laws rq.t;,tnlittg JWlta!tit·.s 

1vithin ran~c.., ha.">i'd on mitig-;-tting :u1d 

drcum<>tanccs nn tlH· part 

;1 litvmt·e. An No. :;12, sig1wd by 

1iw )!;OVI'nwr on April2ti, 201.;~, raisn'l 

th(' !Jve-ynlr look-h;H·k proYi'iioH fot 

n•rtain <llrohol~ .md dm)-!;-rdat('d drivin~ ollt·nses, :nul providt·s that all prior 

{'iHrvi<·lionsarccotmtcdff)rdctcnninin,~ 

the H!lmhcrof('onvktious in the case of 

a third or subst·qu('n! t lUis. 

Ncbra'ika. L t:lB,sig-Hed by the govertH)r{m April ~4. ~01:~. mat!<· .substantive 

thangcs to provision,..; of existing l;n-v 

rcbting t<l eligibility J(,r and tlsc of ignition itlterlork dcvin·s. 

Nc,.·ada. At 1. ~o. ;)9:1, .signed hy th(' 

guv(•mor tm_ltlllf' :), :!0!3, prol1ibits a 

person from operating a motor vehicle 

wi!h ,\dynamic dispby dnice or mobile 

hillhoanl on whi( h tlw or otlwr 

contnn chang<" tUlles~ th(' 

Page 41 

1>!~. !•or IJWII' lllj,rmu(iou al11m! dru~rd dtilli!l!f:, 

l·i111 www.StopDn!gg<·dlki"ing_org:. • 

I!J()!<tr V('ilirk is cqtlipJ>Cd wit II a display 

tnaJI<Ig<'Jllelll ,I,')'St('lll that allow!<> the imagt:• 

orn)IIIOH that is displayed tolx·\-hang('d 

only wh('n the motor vehide is nol moving or i11 a location when.• tfw image or 

nmtc!H rn<ty be dtang<•d \vith(lllt causing 

limhw distmnion 10 the other vehicl<·s. 

·nli'l an abo prohibits moving· content 

Act t\o. 3~, .sig11t.'d by the govemor on 

~by 21, 201:$, pro,..idcs that a violation 

o1 a dty oi·countyonlinann· prohibiting 

driving Hilder the- inl1uencc is decnwd 

h} lx: a vi!.1lation of the st~lte law prohibiting the same or siiHilar couduo fo-r all 

purpmws odw-r than the imposition of 

ccnain criminal penalties. Act No. 295, 

si!-{IW(I!Jy dw ~<wernor nnJtme 1, 201.3, 

jJnlllil>its a pcrs011 ffom petitioning the 

ronrt to seal records rdated to driving, 

opnating, orn)lltrolling-a vel !ide or·\-'l~ 

'wl whik umkl' the iuflnnln' ofintoxi~ 

eating liquor or a rontrolledsuhstanre. 

Act No. H7,sigm·d by tiH~governoron 

May 2·L 201:{, provides that the dtcmical sohnion or gas ust.•d in calibrating 

a blood alcohol dt•Jt•<·!iou <lcvkc is 

presnnwd to he propt•rly prqxm•d and 

suitahk for nst· in calibrating a device if 

a pcrsoll \Vho is ccrtifi<·d to calibrate a 

device 111akcs an anidavit or (kclaration. 

An No.:\?:), signed by til(' govenwron 

jill If' 2, 2013, requires a court to impme 

<1 fcc of$100, in addition to any other 

ad!llini~trativt· asscssnwut, penalty. or 

fine imposed, if a f)('rson pleads guilt)\ 

guilty hw nu·nwlly ill, or nolo nmtt'nden· to, or is f(Hmd guilty of. a dMrg:e of 

driving tnHlt·r tht: infl1H:'JlCt' ofitJ!(IxinltiJlg: liquor or a controlled sub.-;tann:· that 

i., punishable a-<r. a misdcnwanor. 

Sec l.EWSIA'l1Vl·: UPIJATf:, m.•.l't jxtg£' 

©2014 Civ1c Rese«rcll !nst1tute. Photocopying or other rcproducttOn W!ttwut wntlen permission is expressly proh1b1ied and is a violation of copyright. 
185 


35235.154

GREG WALDEN, OREGON 

CHAIRMAN 

ONE HUNDRED FIFTEENTH CONGRESS 

FRANK PALLONE, JR., NEW JERSEY 

RANKING MEMBER 

QC:ongress of tbe Wlniteb ~tates 

l!)onsr of l\rpresrntati\les 

COMMITTEE ON ENERGY AND COMMERCE 

2125 RAYBURN HousE OFFICE BuiLDING 

WASHINGTON, DC 20515-6115 

f\Mt!Ori!y!20?fn&?fl:?7 

MrnWity (101~).2& 3641 

July 31,2018 

Dr. Robert L. DuPont 

President 

Institute for Behavior and Health 

6191 Executive Boulevard 

Rockville, MD 20852 

Dear Dr. DuPont: 

Thank you for appearing before the Subcommittee on Digital Commerce and Consumer 

Protection on Wednesday, July II, 2018, to testify at the hearing entitled "Examining Drug-Impaired 

Driving." 

Pursuant to the Rules of the Committee on Energy and Commerce, the hearing record 

remains open for ten business days to permit Members to submit additional questions for the record, 

which are attached. To facilitate the printing of the hearing record, please respond to these questions 

by the close of business on Tuesday, August 14, 2018. Your responses should be mailed to Ali 

Fulling, Legislative Clerk, Committee on Energy and Commerce, 2125 Rayburn House Office 

Building, Washington, DC 20515 and e-mailed in Word format to ;.J1.fulling@mail.hous<;:.gov. 

Thank you again for your time and effort preparing and delivering testimony before the 

Subcommittee. 

"~'"''· g. ~~E-~ Choirman 

~ Subcommittee on Digital Commerce 

and Consumer Protection 

cc: Janice D. Schakowsky, Ranking Member, Subcommittee on Digital Commerce and Consumer 

Protection 

Attachment 
186 


35235.155

Questions for the Record 

Following the House Energy and Commerce Committee's 

Subcommittee on Digital Commerce and Consumer Protection Hearing 

"Examining Drug-Impaired Driving" July 11, 2018 

Questions from Honorable Michael C. Burgess 

Responses prepared by Robert L. DuPont, MD 

Submitted August 6, 2018 

* * * * 

1. According to the Governors Highway Safety Association, the percentage offatal 

accidents involving alcohol-impaired driving has decreased, while the rate of drug 

use among those tested has continually increased. But, we have no consistently 

reliable data on the combined effect of alcohol and drug use. 

a. What studies have been done or could be done to help identify these effects? 

The scientific literature on drug-impaired driving has grown significantly over the last 

decade, with particular focus on comparing the impairing effects on driving of various drugs, as 

well as the combined effects of alcohol and drugs, particularly marijuana (THC). 1 However, as 

noted in my testimony, no amount of new research will determine a 0.08 g/dL BAC equivalent 

for any drug alone or in combination with alcohol. As a result, what the nation needs is not 

new research studies to identifY the effects of combined alcohol and individual drugs (or even the 

most commonly used drugs) but instead new and expanded efforts to test drivers identified as 

impaired for the prevalence of alcohol and drugs. 

This starts with using reliable field testing technology to test every driver arrested for 

impaired driving for alcohol and impairing drugs, including marijuana. It also means requiring 
187 


35235.156

every driver involved in a crash which results in a fatality or significant injury who could be 

charged with a moving violation to provide a sample for testing for alcohol and drugs. Only with 

this combination of actions will we understand the full extent of the prevalence of drugs, and 

drugs in combination with alcohol, among impaired drivers. 

1 E.g., Hartman, R. L., et aL (20 15). Cannabis effects on driving lateral control with and without alcohoL Drug and 

Alcohol Dependence, 154, 25-37; Dubois, S., et al. (2015). The combined effects of alcohol and cannabis on driving: 

impact on crash risk. Forensic Science International, 248: 94-100; Sewell, R. A., et aL (2009). The effect of 

cannabis compared with alcohol on driving. American Journal on Addictions, 18(3), 185-193. 

b. What methods are available to identify drug and drug combined with alcohol use in 

the field? 

Law enforcement officers document their observations about driving behaviors of drivers 

suspected of impaired driving, as well as drivers' speech, physical movements, et al. Assessing a 

driver for impaired driving typically includes the Standardized Field Sobriety Test (SFST) and 

often a preliminary breath test. Although the SFST was designed and is validated to identify 

alcohol-impairment, the SFST is also an effective screening tool to identify impairment among 

drivers who used central nervous system stimulants, central nervous system depressants, 

marijuana and narcotic analgesics? As a result, these procedures provide law enforcement 

officers an excellent foundation for detection of drug- and combined drug-and-alcohol-impaired 

driving. 

Officers may use a preliminary breath testing at the roadside as part of evidence 

collection. If an impaired driving suspect has a low BAC, officers can then usc an oral fluid 

screening test for the most common drugs. This technology is used in many nations across the 

world and has been piloted in the US by police departments in several states. Analogous to the 

2 
188 


35235.157

preliminary breath test, an oral fluid screening test is non-invasive, easy to use, and is another 

tool for officers to collect evidence at the roadside. 

When an officer has probable cause that the driver is impaired- whether or not by 

alcohol, a drug, or both an arrest is made. The driver is then required to submit to a test to 

determine BAC. It is at this point when the collection and testing of specimens for alcohol and 

drugs must take place. If blood is collected for alcohol testing, a blood sample can be sent to a 

laboratory to test for drugs. Alternatively, oral fluid specimens can be collected and sent to 

laboratories for confirmation analysis for the presence of drugs. 

Drug Recognition Experts (DREs) offer another tool in the detection of drug-impaired 

drivers. These specially trained officers can identify the impairing drug(s) with impressive 

accuracy. Although DREs are very useful in the field, there are not enough DREs on which to 

rely only or even usc primarily for drugged driving detection. 

Policy changes are needed to permit the testing of drivers for drugs using updated 

technology and explicitly in addition to testing for alcohol in all suspected impaired driving 

cases. This begins with permitting the use of oral fluid collection screening and confirmation 

testing. It also means providing incentive for law enforcement officers to test impaired driving 

suspects for both alcohol and drugs, for example, providing additional penalties to impaired 

drivers that are positive for multiple drugs, including alcohol. 

2 Porath-Waller, A. 1., & l3eirness, D. J. (2014). An examination of the validity of the standardized field sobriety test 

in detecting drug impairment using data from the Drug Evaluation and Classification program. Traffic Injury 

Prevention, 15(2), 125-13!. 

3 
189 


35235.158

2. In your testimony you state that every driver found to have been impaired and 

positive for drugs, including marijuana, should experience the same remedies and 

penalties as those found to have been driving under the influence of alcohol. 

a. Why do you believe this will help address the issue? 

The nation has made tremendous progress in reducing alcohol-impaired driving- through 

strong policies backed by effective enforcement and widespread education campaigns. We can 

similarly reduce the problem of drug-impaired driving but we need action now. 

One of the most remarkable policies used to effectively reduce alcohol-impaired driving 

is Administrative License Revocation (ALR). Under these laws, licenses are promptly revoked 

for drivers arrested for impaired driving or who refuse a chemical test, effectively removing 

dangerous drivers from the road. Criminal prosecutions for impaired driving proceed as usual -

often months or even years after the offense. Applying ALR to drug-impaired driving suspects is 

an important first step to reducing the drugged driving problem.3 

3 Talpins, S. K., DuPont, R. L, Voas, R. B., Holmes, E., Sabel, K. A. & Shea, C. L. (2014). License revocation as a 

tool for combating drugged driving. Impaired Driving Update, 18(2). 

4 
190 


35235.159

GREG WALDEN, OREGON 

CHAIRMAN 

ONE HUNDRED FIFTEENTH CONGRESS 

FRANK PALLONE, JR., NEW JERSEY 

RANKING MEMBER 

£ongress of tbe mtniteb $tates 

,1!}ou£>t of i\eprcsmtatibc£> 

COMMITTEE ON ENERGY AND COMMERCE 

2125 RAYBURN HousE OFFicE BuiLDING 

WIISHINGTON, DC 20515-6115 

Ms. Jennifer Harmon 

Assistant Director 

Forensic Chemistry 

Orange County Crime Lab 

320 N. Flower Street 

Santa Ana, CA 92703 

Dear Ms. Harmon: 

Ma1onty 1207.;:.'26 :mn 

M'•>unty 1:102:1 n~> 3641 

July 31,2018 

Thank you for appearing before the Subcommittee on Digital Commerce and Consumer 

Protection on Wednesday, July 11, 2018, to testify at the hearing entitled "Examining Drug-Impaired 

Driving." 

Pursuant to the Rules ofthe Committee on Energy and Commerce, the hearing record 

remains open for ten business days to permit Membets to submit additional questions for the record, 

which are attached. To facilitate the printing of the hearing record, please respond to these questions 

by the close of business on Tuesday, August 14, 2018. Your responses should be mailed to Ali 

Fulling, Legislative Clerk, Committee on Energy and Commerce, 2125 Rayburn House Office 

Building, Washington, DC 20515 and e-mailed in Word format to ali fulling!mmail.house.gov. 

Thank you again for your time and effort preparing and delivering testimony before the 

Subcommittee. 

Robert E. Latta 

Chairman 

Subcommittee on Digital Commerce 

and Consumer Protection 

cc: Janice D. Schakowsky, Ranking Member, Subcommittee on Digital Commerce and Consumer 

Protection 

Attachment 
191 


35235.160

ORANGE COUNTY 

SHERIFF'S DEPARTMENT 

OFFICE OF THE SHERIFF 

August 14,2018 

The Honorable Robert E. Latta 

Chainnan1 Subcommittee on Digital Commerce and Consumer Protection 

Energy and Commerce Committee 

Urdted State House of Representatives 

2125 Rayburn House Office Building 

Washington, DC 20515-6115 

Dear Chainnan Latta: 

550 N. PLOWER STREET 

SANTA ANA. CA. 92103 

71+-647~7000 

WWW.OCSJiORG 

SHERIPF-CORONER 

SANDRA HUTCHENS 

Thank you for holding the recent subcommittee hearing "Examining Dmg-Impaired Driving" on 

July II, 2018. Dmg-impaired driving is a significant challenge facing our nation and one that 

deserves the attention of our national leaders. 

The Orange County Sheriffs Department was pleased to be represented at the hearing by the 

Orange County Crime Lab's Assistant Director for Forensic Chemistry, Jennifer Harmon. 

Please see the attached responses developed by Ms. Harmon to address additional questions 

received from a member of your subcommittee. In my view, Ms. Harmon and her colleagues at 

our Orange County Crime Lab are on the cutting edge of compiling the research needed to develop 

effective policy solutions aimed at reversing the increases in dmg-impaired driving. 

Please <io not hesitate to contact my department should you have any questions or seek further 

input on efforts to combat drugged driving. Thank you again for your continued focus on this 

important issue. 

SH!rg 

Integrity without compromise • Service above self~ Professionalism in the performance of duly • Vigilance in safeguarding our community 
192 


35235.161

Mr. Robert E. Latta 

Chairman 

Subcommittee on Digital Commerce and Consumer Protection 

.United State House of Representatives 

2125 Rayburn House Office Building 

Washington, DC 20515-6115 

Dear Cha.lrman latta, 

Th;mk you for the opportunity to appear before the Subcommittee on Digital Commerce and'Consumer 

Pr~~e~ion ol'l"E,xami~ing Dru~~lmp~ir~d Driving" onJ~Iy l:J,, 20],?.) appr~,~,lijt~.JI)ji,ppportunity to_. 

respor:\dto"t'il"e questions posed 'by ftie H'ono~atiie Mich~el c. Burgess in the letter dated July 3l, 2018. 

Dr. Burgess asked, "According to the Governors Highway Safety AssociCition,thepercentage of fatal 

accidents involving alcaha/-impaired drivftig has detteased, while the rate of drug use among those. 

tested has continually increased. But, we have no consistently reliable data on the .combine effect of 

drug and alcohol use." "What Studies have been done or could be done to help idetitify these effects?" 

There. are numerous scientific studies that demonstrate the effects that drugs and drugs in coml:lination 

with alcohol have on driving. Some ofthe best research has come outofthe European Union's DRUID 

project and Australia, where drugged driVing impacts have been studied vigorously over the last twenty 

years. As an example, in a sclentifit literature review study by Australian authors Kelly, Darke, and Ross 

(2004): 

"Drugs ~re detected commonly among those involved in motor vehicle accfdents ... Cannabis is 

generally the most common drug detected in accident-involved drivers, followed by 

benzodiazepines, cocaine, amphetamines and opioids. Poly-drug use is common among the 

actidenHnvolved drivers. Studies of impairment indicate an undeniable association between 

alcohol and driving impairment. There is als.o evidence that cannabis and benzodiazepines 

increase accident risk ... it is apparent tl\at drugs in combination with alcohol, and mt~ltiple drugs, 

present an even greater risk" (P. 319). 

Additionally, the NationaLHighway Traffic Safety ASsociatioh's (NHTSA) Roadside Survey is an excellent 

opportunity to. track drug use trends in the United States; especially in terms of preventative health and 

educat.ion strategies aod effectiveness, as well as with drug use perceptions and.patterns. As seen· 

through o ur·testing· in ·O range,County;·testing:ofeveryarrested D til ·driver rega'rdiess·ofthe· blood 

alcohol concentration and traffic safety related fatality, dr\lg use is complex and typically .in combination 

withmorethan one· substance and at concentrations that may be toxic too much ofthe population, 

Scientifically controlled evaluation of real-world drug use patterns and combinations is difficult. The 

best data will come from collecting epidemiological data. 

The only way to co !lett that data is to improve ahd increase test!ng; both by laboratories testing the 

samples and by law enforcement who are ev<~luatlng possible drug Impaired drivers at roadside. The 

Honorable Michael Burgess addresses this in his follow up question, "What. methods are available to 

identify drug ond drug combine with alcohol use in the field?" 

Current methods availabl.e to identify these drivers In the field inch,tde the Standardize Field Sobriety 

Tests (SFSTs) and additional training with Advanced Roadside. impaired Driving Enforcement (ARID E) arid 

Drug Recognition Expert (DRE). The International Association of Chiefs of Police (IACP) administers these 

programs and is best suited to provide more extensive 'detail about the training. That being said, these 
193 


35235.162

tr~ining programs have educated thousands of law.enforcement officers to effectively determine drl!gimpair.ed and poly-drug/alcohol impaired drivers for more than 30 years. This is evident from the rate of 

positives received by crime laboratories. Our laboratory alone has more than a Q6%positive rate·for 

drugs; alcohol,.or both in its tested apprehended DUI drivers. Additionally, in a 2016 study by authors 

Watson and Mann, "Combined observations on psychophysical and eye exams produced the best 

indicators of cannabis impairment" (p. 150). There is also emerging technology in roadside q~tectlon 

with marijuana breath testing and saliva .testing, however, these techniques haV!llimitations; most 

impor:tanuo note is the limited scope of testing. Finally, there is additional legislated scientific research 

currently taking place by the University of California at San Diego (UCSD) to aid in validation and 

development of current and additional tests in conjunction With the ORE program. 

The suss~~-~-.R.UP,~JaweQJ!J.Tc~IT)el}t.rr!WilQtS, SF~T, ARIDE, ORE, are depend!;!nt upon comprehensive. 

forensic toxicological testing. As noted by Dr. Burgess, I testified that it is .critical for all laboratories to 

conduct comprehensive toxicology testing. Toxicology testing is the last step of the ORE program. 

Officers cannot certify or recert1/vwithout it If law enforcement opines that someone is onder the 

influence but has no mechanism to identify the actual drug causing the observed impairment, it makes 

the program far less eff.ective. Laborator.ies must have the needed resources to test for, minimally, the 

most prevalent drugs in their jurisdictions. 

Traffic safety testing is not a priority in many Crime laboratories or jurisdictions as many ofthe cases are 

misdemeanor crimes and testing is limited to-alcohol. Crime laboratories must compete for funding for 

all areas of forensic science including crlme scene investigation, firearms testing, toxiCology, latent 

prints, DNA, and narcotics identification. Currently, DNA Is the only area of forensics that has dedicated 

moneys that ]l!rlsdictions are not directly competingfbr with not only other law enforcement agencies 

but within' their own programs. 

Funding chemical testing ensures evidence-.based outcomes for law enforcement and support for drugimpairment training. It provides the much needed data for the federal Fatal Accid.erit Reporting System 

{FARS), It additionally offers a. comprehensive picture of drug use trends which can contribut~ to a 

better understanding of the true prevalence of the problem in the u;s. Multiple organizations including 

the Governors Highway Safety Association (2016, P. 7), the Government Accountability Office (2015, P. 

li) and the. National Safety Council (Loean, et al.i 2017, P. 2) have supported that drug-impaired driving 

is under reported as many traffic safety related samples are not tested or the testing is llmite(l. By 

i m f)roving·chem lea !·testing traffic safety poliey; prevention; edu catlo n·and trelltment·progra ms to 

reduce recidivism of the drug~!mpaired tail be best developed. 

Thank you again for the opportunity to testify .anc:l provide response. 

Jennifer Harm.on 

Assistant Director- Forensic.Chemistry 

Orange county Crime Laboratory 

Orange County Sheriff-Coroner Department 
194 


35235.163

References: 

Gol/ernment Accountability Office. (2015). Drug Impaired Drivi{!g:Addltiona/5uppart NeededforPubl/c 

Awareness lnitiativ.es (GAO Highlights of 15-293). Washington, DC. 

Hedlund, J. (2017, April). Drug-lmpaif!id Driving:. A Guide for States. Governor's Highway .Safety 

Association (GHSA). p. 1-56. 

Kelly, E., Darke, 5., and ROSS; J. (2004). A review of drug use and driving: epidemiology, impalrment, risk 

factors and risk perceptions: Drug and Alcohol Review, {3}23, 319~344. 

Logan~ ~ •. $;, ,.q:q~~z.ig ,,~,.hJY1Bct~,r".,~, .~, ~~ .. bi.m,()g!! s, J .. F., Mi.Jes; .A.. K.,. Sgarneo; · C:. E., Kerrigan, S., 

Liddicoat, L.J., Scott, K.S., and, Huestis, M.A. (2017). Recommendations for Toxicological 

Investigation of Dr~g'lnipaired Driving arid Motor Vehicle Fatalities- 2017 Update. Journal of 

Analytlco/ Toxicology; 1-6. · 

Watson, T. M .. and Mann; R. E. (2016). International approaches to driving under tbe Influence of 

cannabis: A review of evidence on Impact. Drug and A/coho/Dependence; 169, 148-155; 
195 


35235.164

GREG WALDEN, OREGON 

CHAJHMAN 

Ms. Erin Holmes 

Director 

ONE HUNDRED FIFTEENTH CONGRESS 

FRANK PALLONE, JR., NEW JERSEY 

RANKING MEMBER 

q[ongre59' of tbe W.niteb .$tates j()ou~>e of ~cpw>ttttatibr!> 

COMMITIEE ON ENERGY AND COMMERCE 

2125 RAYBUHN HousE OFFICE BuiLDING 

WASHINGTON, DC 20515-6115 ~:..'il2) 210. ·2921 

l10?):t.l'5 

July 31,2018 

Traffic Safety Programs and Technical Writer 

Responsibility.org 

2345 Crystal Drive, Suite 710 

Arlington, VA 22202 

Dear Ms. Holmes: 

Thank you for appearing before the Subcommittee on Digital Commerce and Consumer 

Protection on Wednesday, July 11,2018, to testii)' atthe hearing entitled ''Examining Drug-Impaired 

Driving.)' 

Pursuant to the Rules of the Committee on Energy and Commerce, the hearing record 

remains open for ten business days to permit Members to submit additional questions for the record, 

which are attached. To facilitate the printing of the hearing record, please respond to these questions 

by the close of business on Tuesday, August 14, 2018. Your responses should be mailed to Ali 

Fulling, Legislative Clerk, Committee on Energy and Commerce, 2125 Rayburn House Office 

Building, Washington, DC 20515 and e-mai1ed in Word format to ali.thlling'ii'maiLhouse.gov. 

Thank you again for your time and effort preparing and delivering testimony before the 

Subcommittee. 

~:.Ed~ Robert E. Latta 

Chairman 

Subcommittee on Digital Commerce 

and Consumer Protection 

cc: Janice D. Schakowsky, Ranking Member, Subcommittee on Digital Commerce and Consumer 

Protection 

Attachment 
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FOUNDATION FOR 

ADVANCING ALCOHOL 

RESPONSIBiliTY 

Subcommittee on Digital Commerce and Consumer Protection 

ofthe 

House Energy and Commerce Committee 

Hearing on 

"Examining Drug-Impaired Driving" 

(July 11, 2018) 

Response to additional questions submitted for the record by the Honorable Michael Burgess 

Chairman Latta, again thank you for the opportunity to testify before the subcommittee on this important 

public safety issue. In 2016, the most recent year for which data are available, the National Highway 

Traffic Safety Administration (NHTSA) Fatality Analysis Reporting System (FARS) found that drugs were 

present in 43.6% of fatally-injured drivers with a known drug test result. We applaud your committee for 

taking a leadership role in identifying solutions and actions that can be taken to save lives on the 

nation's roadways. 

Also, thank you to Representative Michael Burgess for requesting additional information on strategies 

that can be employed to better identify drug-impaired drivers as well as how best to translate lessons 

learned from decades of combatting alcohol-impaired driving. Below are my responses to Rep. Burgess' 

questions for the official hearing record. 

1. According to the Governors Highway Safety Association, the percentage of fatal accidents 

involving alcohol-impaired driving has decreased, while the rate of drug use among those tested 

has continually increased. But we have no consistently reliable data on the combined effect of 

drug and alcohol use. 

a. What studies have been done or could be done to help identify these effects? 

Answer: A number of studies have been done domestically and abroad that examine the combined 

effect that polysubstance use can have on either impairment or crash risk. In recent years, several 

studies have focused on the combined effects of alcohol and marijuana as this is the most common 

combination found in both fatally-injured and arrested drivers. Several citations are provided below. 

Numerous studies have been conducted that identify the combination of multiple drugs or drugs and 

alcohol as greatly increasing crash risk. The results from the comprehensive DRUID study are included in 

the chart below. NHTSA also recently conducted a crash risk study (commonly referred to as the Virginia 

Beach Study) but there were several important limitations acknowledged by the authors. 

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TABLE 3. CRASH RISK ASSOCIATED WITH DRUG USE IN 

EUROPEAN STUDIES 

Risk level ! Reta1ive risk J Drug c;:ategory 

Slightly lnaeased risk 1-3 marijuana 

benzodiazeplnes 

Medium increased risk 2-10 cocalne 

opiold 

Highly Increased risk 5-30 amphetamines 

mu!ttple dn.Jg$ 

Extremely Increased risk 20-200 alcohai together 

with drugs 

*(!mage source: Hedlund, J. (2017). Drug-Impaired Driving: A Guide for States. Washington, DC: Governors Highway Safety 

Association). 

With respect to impairment, it is important to be aware that the combination of various substances can 

greatly increase their effect. Recent simulator research conducted by the National Institute on Drug 

Abuse (NIDA) with support from NHTSA and the White House Office of National Drug Control Policy 

(ONDCP) found that the combination of alcohol and marijuana produced an additive effect (i.e., the 

combination of the substances produced greater impairment than either on its own) while other studies 

have found a multiplicative effect (i.e., 1+1=3). 

Additional research is needed to add to the existing body of scientific literature. Future experimental 

studies using dosed subjects and the simulator at the University of Iowa as well as crash risk studies that 

improve upon the Virginia Beach study methodology are recommended. 

Griffiths, P. (2014). An Overview of Drug Impaired Driving in the EU. 2nd International Symposium on Drugs and 

Driving. Wellington, NZ: New Zealand Drug Foundation. http://www.drugfoundation.org.nz/ 

drugdriving2014/presentations 

Hartman, R., Brown, T., Milavetz, G., eta!. (2015). Controlled cannabis vaporizer administration: Blood and plasma 

cannabinoids with and without alcohol. Clinical Chemistry, 61, 850-869. 

Ramaekers, J., Robbe, H., & O'Hanlon, J. (2000). Marijuana, alcohol and actual driving performance. Human 

Psychopharmacology: Clinical and Experimental, 15, 551-558. 

Romano, E., Torres-Saavedra, P., Voas, R., et al. (2014). Drugs and alcohol: Their relative crash risk. Journal of 

Studies on Alcohol and Drugs, 75, 56-64. 

Schulze, H., Schumacher, M., Urmeew, R., et al. (2012). DRUID Final Report: Work Performed, Main Results and 

Recommendations. Bergisch Glad bach, Federal Republic of Germany: Federal Highway Research Institute (BASt). 

http://www. d ru id-p roject. eu/D ru id/EN/ Dissemination/ downloads_ and _II nks/Fi nal_ Report. htm I 

b. What methods are available to identify drug and drug combined with alcohol use in the 

field? 

Answer: Well-trained law enforcement officers are the best line of defense when it comes to identifying 

and removing impaired drivers (whether drunk, drugged, or poly-users) from the road. A variety of 

different detection strategies are available to law enforcement to identify drug-impaired drivers. These 

methods include roadside testing, sobriety checkpoints, saturation patrols, and specialized training 

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programs such as the Drug Evaluation and Classification (DEC) program and Advanced Roadside 

Impaired Driving Enforcement (ARIDE). These programs facilitate the detection of drug-impaired drivers 

by providing officers with training necessary to complete a behavioral assessment of impairment. These 

programs go beyond the Standardized Field Sobriety Test (SFST) training that most officers receive and 

provide them with knowledge and training that allows them to identify and articulate the signs and 

symptoms of drug impairment. 

Officers who complete the DEC program are required to go through three phases of training totaling 

more than 150 hours along with field certification before they become Drug Recognition Experts (OREs). 

These officers use a standardized protocol that allows them to determine whether a suspect is impaired, 

if that impairment is caused by drugs or can be attributed to a medical condition, and the category of 

drug(s) that are the cause of the impairment. In rendering their opinion, OREs can make a finding of 

poly-drug use. This category happened to be the second most common opinion in 2016 evaluations. 

2016 ORE enforcement evaluation opinions, by drug category 

Inhalants 

Hallucinogens 

Dissociative anesth. 

Narcotic CNS depressants analgesics !iiiiiiiiiiiiiiiiiii:~ CNS stimulants 

Poly-drug cases 

Source: Adapted from IACP (2017) 

15000 

*{Image source: Hedlund, J. (2018). Drug~lmpaired Driving: Marijuana and Opioids Raise Critical Issues for States. Washington, 

DC: Governors Highway Safety Association). 

Unfortunately, due to the level of commitment required to complete the DEC training and the cost to 

train officers, it is not always a viable option for agencies that have limited staff and resources. 

Therefore, in an effort to increase education and training among patrol officers more broadly, the ARIDE 

program was created. ARIDE is designed to bridge the gap between SFST training and the DEC program 

in that it is 16 hours of training that educates officers on how to identify the signs and symptoms of drug 

impairment. The good news is that an increasing number of officers are being trained in ARIDE and 

certified as OREs each year; however, more resources and appropriations are needed to facilitate the 

training of additional officers, particularly in rural areas of the country. 

In addition to specialized training, officers also rely on the collection of chemical tests to build a strong 

impaired driving case. For alcohol-impaired driving, this is relatively simple due to the availability of 

breath tests. In drug-impaired driving cases, officers typically must seek a warrant to obtain a blood 

draw. With many jurisdictions struggling to address increases in drug and polysubstance use and 

knowing that many drugs rapidly metabolize within the body, there is a pressing need to implement 

processes that allow officers to obtain chemical samples as efficiently as possible. Luckily, law 

enforcement agencies across the country have begun to implement systems that will facilitate an 

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expedited electronic warrant submission and approval process. The greatest advantage of e-warrant 

systems is that they provide a mechanism for officers to obtain accurate toxicology results quickly. 

These systems can significantly streamline the arrest process and reduce the amount of time that 

officers are off the street, and reduce the amount of time between the request, approval, and execution 

of the warrant. The automated nature of the content of most e-warrants also results in fewer mistakes 

and errors in the request, which in turn means fewer warrants are rejected by judges. Additional funding 

for the implementation of these systems would go a long way towards preserving chemical evidence in 

drug-impaired driving cases. 

Finally, new tools and technology for law enforcement are on the horizon. While some are still in 

development, others are being piloted throughout the country and being utilized internationally. The 

most promising technology that can be used to detect drugs at roadside is oral fluid testing. This 

technology tests for the most commonly used categories of drugs. Oral fluid technology offers many 

advantages over blood and urine testing as it is quick and easy to use, minimally invasive, has a short 

detection window (i.e., positive findings are indicative of recent as opposed to historical use), and 

provides a sample proximate to the time of driving. It is recommended that the results from the device 

be utilized within the context of a broader impaired driving investigation similar to preliminary breath 

tests (e.g., observations while vehicle is in motion and during the traffic stop, clues on the standardized 

field sobriety tests, etc.). 

Perhaps the greatest potential benefit of oral fluid technology is that it will allow officers to test drivers 

who are above the .08 illegal blood alcohol limit for drugs if they suspect that the individual has 

consumed substances other than alcohol; this is not standard procedure at present and, as a result, 

there are implications when it comes to making assessment, supervision, and treatment decisions later 

in the criminal justice process. Funding for research to examine the feasibility of incorporating on-site 

oral fluid devices in criminal justice processes and monitoring of new and emerging technologies such as 

marijuana breathalyzers and transdermal devices is recommended. 

2. We have made great strides in addressing alcohol-impaired driving. 

a. What lessons have we learned from those efforts that we can apply to drug-impaired 

driving? In particular, I'm interested in hearing what can be done to address 

prescription-based drug-impaired driving with the work that I have led as chairman of 

the Health subcommittee. 

Answer: Tremendous progress has been made in reducing alcohol-impaired driving fatalities as the 

number has been reduced by 50% since 1982. While there is a great deal of work left to be done, there 

are a number of strategies and lessons learned that can be employed to address the more complex 

problem of drug-impaired driving. By emulating the approaches taken to reduce alcohol-impaired 

driving, progress in eliminating drug and polysubstance-impaired driving can hopefully be achieved in a 

shorter timeframe. This model includes: 

Passage of laws to target multiple facets of the problem, 

Sustained and high visibility enforcement efforts, 

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Identifying the countermeasures that work; evaluation and strengthening of programs, 

Targeting high-risk offenders, 

Assessment and treatment, 

• Public education and awareness, and, 

Changing societal norms. 

While many of the policies and countermeasures that are effective in addressing DUI such asperse legal 

limits, ignition interlocks, and emerging technologies like the Driver Alcohol Detection System for Safety 

(DADSS) will not necessarily be viable options to reduce the occurrence of driving under the influence of 

drugs, there are laws and approaches that can be translated such as zero tolerance laws for individuals 

under the age of 21; administrative license suspension/revocation (ALS/ALR); mandatory screening, 

assessment and (if indicated) treatment; DWI courts; offender monitoring programs; and, enhanced 

penalties for polysubstance users (similar to enhanced penalties for high-BAC drivers). In addition to 

these policies, the allocation of additional highway safety funds to improve the quality of state labs 

would be beneficial. States should be afforded the flexibility to use said funds to hire additional lab staff 

and purchase lab instrumentation. Improving the quality and abilities of laboratories has the added 

benefit of reducing backlog in DUI/DUID cases which is a common challenge encountered in many 

states. 

With respect to addressing prescription drug use and driving, public education and awareness is of 

utmost importance. Many individuals may not realize that over-the-counter medications or medications 

legally prescribed by their doctor can impair their ability to drive safely. For this reason, several 

preventative steps can be taken: 

While prescription drugs contain labels that warn against operating heavy machinery and many 

physicians and pharmacists emphasize this information with patients, more can be done. 

Congress should encourage federal agencies including NHTSA, ONDCP, and the Federal Drug 

Administration (FDA) to explore opportunities to increase education about the dangers of 

driving after using prescription drugs. Public health officials should be encouraged to have 

explicit conversations with their patients. 

Labeling on prescriptions that have impairing side effects should be larger and note that heavy 

machinery includes motor vehicles. 

State-level and national campaigns are needed to educate patients and make them aware that 

they can be arrested for impaired driving even if they are legally prescribed the substance that 

impairs them. Some examples of prescription drug-impaired driving campaigns include 

California's DUI Doesn't Just Mean Baaze and Wisconsin's Dose af Reality. NHTSA also launched 

the If You Feel Different, You Drive Different- Drive High, Get A DU/ campaign to educate the 

public that they should not get behind the wheel if they feel differently after taking a drug. 

Congress is encouraged to monitor NHTSA's progress and provide appropriations to expand 

these public outreach efforts if deemed effective. 

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Should you require additional information or if Responsibility.org can further serve as a resource, please 

do not hesitate to reach out. Thank you again for your leadership and commitment to saving lives on our 

nation's roadways. 

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