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June 2004 - Heads Magazine

Your License, Your Urine

New State and Federal Laws Seek to Charge Non-Impaired Pot Smokers With "Drugged Driving"

By Paul Armentano

Return to Drug War News: Don't Miss Archive

Imagine if it were against the law to drive home after consuming a single glass of wine at dinner. Now imagine it was illegal to drive after having consumed a single glass of wine two weeks ago. Guess what? If you smoke pot, it's time to stop imagining.

Legislation weaving its way through the US Congress demands all 50 states pass laws granting police the power to drug test drivers and arrest anyone found to have "any detectable amount of a controlled substance ... present in the person's body, as measured in the person's blood, urine, saliva, or other bodily substance." Though the expressed purpose of the law is to target and remove drug-impaired drivers from US roadways, the proposal would do nothing of the sort.

Most troubling, the proposed law-H.R. 3922 -- does not require motorists to be identifiably impaired or intoxicated in order to be criminally charged with the crime of "drugged driving." Rather, police have only to demonstrate that the driver has detectable levels of illicit drugs or inactive drug metabolites in their blood, sweat, saliva, or urine. As many pot smokers know, marijuana metabolites are fat soluble, and remain identifiable in the urine for days and sometimes even weeks after past use. Consequently someone who smoked a joint on Monday could conceivably be arrested on Friday and charged with "drugged driving," even though they are perfectly sober!

Here's how the law would work. Police, at their discretion, could order motorists during a traffic stop to undergo a drug test, most likely a urine test. If the driver's urine tests positive for prior pot use then he or she would automatically be charged and eventually found guilty of the criminal offense of driving under the influence of drugs-even if the pot in question was consumed weeks earlier. Under the law, the fact that the driver is not impaired is irrelevant; the only "evidence" necessary is the positive test result.

So Who's Behind This?

Over the past five years, a small cabal of prohibitionists, drug testing proponents and toxicologists have pushed for legislation criminalizing drivers who operate a vehicle with inert drug metabolites present in their system. To date, their efforts have persuaded ten states-Arizona, Georgia, Iowa, Illinois, Indiana, Minnesota, Pennsylvania, Rhode Island, Utah, and Wisconsin-to pass such "drugged driving" laws, known as zero-tolerance per se laws. Leading this charge is the Walsh Group, a federally funded organization that develops drug testing technology and lobbies for rigid workplace drug testing programs. Walsh Group President, Michael Walsh, is the former Director of the Division of Applied Research at the US National Institute on Drug Abuse (NIDA), and formerly served as the Associate Director of the Office of National Drug Control Policy (ONDCP), informally known as the Drug Czar's office

In November 2002, the group partnered with the ONDCP to lobby state legislatures to amend their drugged driving laws. Every state has laws on the books prohibiting motorists from driving "under the influence" of a controlled substance. Like drunk driving laws, virtually all of these laws require the motorists to be impaired by their drug use in order to be charged with "drugged driving."

Nevertheless, the Walsh Group argued that these existing laws are too lax on illicit drug users. To bolster their claim, they argued-without explanation-that actually linking illicit drug use to impaired driving is a "technically complicated and difficult task." Their solution? States should enact zero tolerance per se laws redefining "drugged drivers" as any motorist who tests positives for any level of illicit drugs or drug metabolites, regardless of whether their driving is impaired.

"There is clearly a need for national leadership at the federal level to develop model statutes and to strongly encourage the states to modify their laws," the organization concluded in a widely disseminated report. Notably, the authors failed to mention that the widespread enactment of such a policy would be a political and financial windfall for the Walsh Group's drug testing technology and consulting services.

The Walsh Group is hardly the only organization with something to gain from the Bush administration's proposed "drugged driving" crackdown. Speaking at a White House-sponsored symposium in February, former 1970s Drug Czar Robert DuPont-another ex-NIDA director who now helms the workplace drug testing consultation firm Bensinger, Dupont & Associates (BDA) -- also demanded the federal government mandate zero-tolerance drugged driving laws.

"Workplace drug testing has prepared us for drugged driving testing," Dupont told attendees, arguing that just as many public and private employees are subjected to random drug screening, so should motorists. Those drivers who test positive, says Dupont, should then be monitored through regularly scheduled drug tests, including hair testing, for a period of two to five years.

"The benefits of this approach will be improved highway safety," he concluded, failing to explain how punishing sober drivers while simultaneously lining BDA's pockets would make America's roadways any safer.

Cruising On Cannabis: What's The Problem?

"Driving under the influence of, or after having used, illegal drugs has become a significant problem worldwide," states the preamble to H.R. 3922. However, despite the government's claim, epidemiological evidence on the number of motorists who drive under the influence of illicit drugs is scarce.

Further, among the limited evidence that does exist, much of it finds that pot's measurable yet relatively mild effects on psychomotor skills do not appear to play a significant role in vehicular crashes, particularly when compared to alcohol. "Crash culpability studies have failed to demonstrate that drivers with cannabinoids in the blood are significantly more likely than drug-free drivers to be culpable in road crashes," summarized researchers Gregory Chesher and Marie Longo in the recent book Cannabis and Cannabinoids: Pharmacology, Toxicology, and Therapeutic Potential. A 2002 Canadian Senate report was even more succinct, stating, "Cannabis alone, particularly in low doses, has little effect on the skills involved in automobile driving."

Nonetheless, Congress' proposed bill specifically and disproportionately targets motorists who may occasionally smoke pot because marijuana's metabolites exit the body more slowly than other drug metabolites, often remaining detectable in urine for several weeks at a time. Equally troubling, there currently exists no technology that can accurately correlate drug metabolite concentration to impairment of performance.

Of course, such concerns are no bother to those in Congress who intend to ride this latest wave of drug war rhetoric to reelection. Nor are they of much worry to those in the drug testing industry who stand to make a fortune prosecuting and jailing sober pot smokers.

As for everybody else, be afraid; be very afraid. And be sure to keep a fresh sample of urine in the glove compartment.

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