Federal Bill Introduced Ordering States To Pass Mandatory Minimum Penalties For “Drugged Driving”

Non-Compliant States To Lose Federal Highway Funds

Washington, DC: Federal legislation was introduced this week to withhold highway funding from state legislatures that do not pass laws enacting mandatory minimum penalties for anyone convicted of driving under the influence of illegal drugs. The bill, H.R. 3907, comes two weeks after panelists at a conference co-sponsored by the White House Office of National Drug Control Policy (ONDCP) called on federal officials to develop “uniform standards” and “model legislation” to encourage states to enact and/or modify their DUID (driving under the influence of drugs) laws.

Under the proposed legislation, sponsored by Rep. Jon Porter (R-NV), states have until 2006 to pass and enforce DUID laws “approved by the Administrator of the National Highway Traffic Safety Administration,” or lose portions of their federal highway funding.

In a press conference introducing the legislation, Rep. Porter falsely stated, “Few states have enacted laws to address drugged impairment.” In truth, virtually all states have approved DUID legislation. The majority of these laws forbid drivers to operate a motor vehicle if they are either “under the influence” of a controlled substance, or if they have been rendered “incapable of driving safely” because of their use of an illicit drug.

Under these statutes, so-called “effect-based” DUID laws, a prosecutor must prove that the driver’s observed impairment and/or incapacity is directly associated with drug ingestion. To do so, prosecutors typically rely on evidence gathered by law enforcement officers at the scene of an accident (i.e., a driver’s failure to pass a field sobriety test), testimony from a Drug Recognition Expert (DRE), as well as a positive result from a blood or saliva test indicating recent ingestion of a controlled substance. Unlike urinalysis, blood and saliva tests can identify “parent drugs” (i.e., THC), not simply drug metabolites (inert compounds indicative of past drug use).

By contrast, ten states (Arizona, Georgia, Iowa, Illinois, Indiana, Minnesota, Pennsylvania, Rhode Island, Utah, and Wisconsin) have enacted so-called “zero tolerance” per se laws which make it a criminal offense to operate a motor vehicle while having a drug or drug metabolite in one’s body or bodily fluids – even if the driver’s ability to drive is not impaired. Under such statutes, individuals can be found guilty of violating the law if the driver is found to have been operating a motor vehicle with any amount of a prohibited substance present in their bodily fluids, including urine – where metabolites may remain detectable for days after past use. For marijuana, inactive metabolites are identifiable in the urine for several days and sometimes weeks after its use.

Representative Porter’s proposed legislation does not specify which type of DUID laws – “effect-based laws” or “zero tolerance” per se laws – states must enact in order to comply with the federal mandate.

NORML Executive Director Keith Stroup worries that such a mandate will be used to coerce state legislatures to universally adopt “zero tolerance” per se laws, which he called unfair and bad public policy. “While driving impaired by marijuana or other illicit and licit drugs is never acceptable, neither is it acceptable to treat sober drivers as if they are impaired simply because low levels of inactive marijuana metabolites may be detectable in their bodily fluids,” he said. “These ‘zero tolerance’ laws are neither a safe nor sensible way to identify impaired drivers; they are an attempt to misuse the traffic safety laws to identify and prosecute marijuana smokers per se.”

For more information, please contact either Keith Stroup or Paul Armentano of NORML at (202) 483-5500. A state-by-state summary of DUID laws is available online at: