A similar review of auto accident fatality data from France showed similar results, finding that drivers who tested positive for any amount of alcohol had a four times greater risk of having a fatal accident than did drivers who tested positive for marijuana.[4] Both studies noted that – overall – few traffic accidents appeared to be attributed to driver's operating a vehicle while impaired by cannabis.

That said, I'm sure that we're all in agreement that those minority of drivers who do operate a vehicle while demonstrably impaired by illicit drugs ought to be severely punished. Fortunately New Hampshire – like all states – already has effective DUI laws on the books that sufficiently target, identify, and prosecute such drivers. Additional legislation such as HB 575 is neither warranted nor necessary.

House Bill 575, under strict interpretation, could potentially punish scores of drivers who are not intoxicated.[5] This is because the law calls for criminally sanctioning motorists based not on their driving behavior – but rather, whether or not they have trace levels of non-psychoactive drug metabolites in their blood or urine.

The inclusion of drug metabolites – which can be detectable in urine for days after past drug use – in this proposal is particularly troubling. Drug metabolites are compounds produced from chemical changes of a drug in the body, but they are not necessarily psychoactive themselves. This means that a person can test positive for the presence of a drug metabolite, but no longer be under the influence of a controlled substance. For this reason, the US Department of Transportation has criticized the inclusion of drug metabolites in state DUID laws, stating, "[W]hile a positive ... test [for drug metabolites] is solid proof of drug use within the last few days, it cannot be used by itself to prove behavioral impairment during a focal event."[6]

The US Department of Justice affirms this conclusion, stating that a positive test result for the presence of a drug metabolite "does not indicate ... recency, frequency, or amount of use; or impairment."[7]

In short, the presence of drug metabolites is not proof of drug impairment. Their detection should never be viewed under the law as prima facie evidence of impaired driving.

Unfortunately, as currently written, HB 575 would treat sober drivers as impaired and criminally punish them for their previous, non-driving-related activities. To do so is illogical. The purpose of the traffic safety laws is to target and punish those drivers whose on-road actions threaten the safety and security of others; these laws should not be misused to enforce unrelated laws prohibiting the use of certain controlled substances in the privacy of one's home.

In addition these initial concerns, I further believe that it's premature for the members of this Committee to be considering the enactment of this law when similar action remains pending from Congress. As authorized by Section 2013 of the 2005 Transportation Appropriations bill, the US
Secretary of Transportation must "advise and coordinate with other federal agencies on how to address the problem of driving under the influence of an illegal drug; and conduct research on the prevention, detection, and prosecution of driving under the influence of an illegal drug."

The law further states, "After the ... enactment of this act, the Secretary, in cooperation with the National Institutes of Health, shall submit to Congress recommendations for developing a model statute for states relating to drug impaired driving, including:

• Threshold levels of impairment for illicit drugs;
• Practicable methods for detecting the presence of illegal drugs;
• Penalties for drug impaired driving."

These recommendations are expected imminently. At a minimum, the House should wait until Congress has weighed in on this issue before moving forward with this poorly drafted legislation.

Finally, there exists no evidence that the passage of these strict zero tolerance and/or per se laws are actually having any tangible effect in reducing the number of drugged drivers from the roadways. This is because, in most cases, those who violate our state's drugged driving laws are habitual offenders whose actions are undeterred by the passage of strict criminal sanctions.

In fact, the only published study to date to assess the impact of strict, zero tolerance per se DUID legislation reports: "[The enactment of] zero-concentration limit[s] have done nothing to reduce DUID or deter the typical offender because recidivism is high in this population of individuals. ... Indeed, many traffic delinquents ... are criminal elements in society with previous convictions for drunk and/or drugged driving as well as other offenses. The spectrum of drugs identified in blood samples from DUID suspects has not changed much since the zero-limit law was introduced."[8]

In conclusion, I urge the members of the Public Safety Committee to oppose this legislation. While driving under the influence of illicit and licit substances is arguably an issue worthy of legislative concern, this proposal neither addresses the problem nor offers a legitimate solution. At best, it is an inappropriate, inflexible response to a negligible social ill. At worst, it is a cynical attempt to misuse the traffic safety laws to prosecute illicit drug consumers per se.

Rather than support the passage of inappropriate, non-scientific, and overly punitive legislation such as HB 575, I believe that the House would be better advised to authorize public campaign efforts warning citizens, particularly young people, of the dangers of drugged driving. Such an educational campaign was recently launched nationwide in Canada by the Canadian Public Health Association.[9] I was an advisor to this campaign and would be pleased to work with Committee members on crafting similar education efforts in New Hampshire.


CONTACT INFORMATION:

Paul Armentano
paul@norml.org

[1] US Department of Transportation, National Highway Safety Administration. State of Knowledge of Drugged Driving:
FINAL REPORT. September 2003.

[2] Movig et al. 2004. Psychoactive substance use and the risk of motor vehicle accidents. Accident Analysis and
Prevention 36: 631-636.

[3] Bedard et al. 2007. The impact of cannabis on driving. Canadian Journal of Public Health 98: 6-11.

[4] Laumon et al. 2005. Cannabis intoxication and fatal road crashes in France: a population base case-control study. British
Medical Journal.

[5] People v Derror, People v Kurts (Michigan Supreme Court, June 21, 2006). "Nor does [the statute] require a defendant
to be impaired while driving. Rather it punishes for the operation of a motor vehicle with any amount of a scheduled I controlled substance in the body. ... That the statute might apply to some persons who are not actually 'under the
influence' of [a controlled substance] does not render the statute unconstitutional."

[6] US Department of Transportation, National Highway Safety Administration. State of Knowledge of Drugged Driving:
FINAL REPORT.

[7] US Department of Justice, Bureau of Justice Statistics. Crime and the Justice System (NCJ-133652). December 1992.
Working to Reform Marijuana Laws

[8] Alan Jones. 2005. Driving Under the Influence of Drugs in Sweden with Zero Concentration Limits in Blood for
Controlled Substances. Traffic Injury and Prevention 6: 317-322.

[9] Canadian Public Health Association. "The Pot and Driving Campaign." http://www.potanddriving.cpha.ca/index.html