The National Highway Traffic Safety Administration (NHTSA) has conducted two surveys on “drugged” driving (2007 and 2013-14). The NHTSA also collects state data on accidents involving impaired drivers.
After reviewing this data, the NHTSA in 2014 concluded, “we cannot infer that drugged driving has increased.” Nor, according to the NHTSA, is there evidence sufficient to make inferences about drug impairment or crash causation.
However, according to Senator Bob Huff (D – San Dimas), the NHTSA data reveals an increase in “drugged” driving on California highways and roads. “Drugged driving is quickly becoming a serious public health and safety problem,” says Huff.
Huff has introduced a bill that would authorize police to use an oral fluid test to detect the presence of marijuana, cocaine, methamphetamine and opiates.
Prescription drug use is not a defense to DUI-D. However, methamphetamine, opiates, and benzodiazepine are found in the prescription drugs Adderall, OxyContin, and Xanax, respectively.
Currently California has no standards for drug impairment. Thus, any positive drug test could result in your arrest for DUI-D. (In Colorado and Washington, where recreational marijuana is legal, a driver is presumed impaired if his or her blood contains more than five nanograms of active THC per milliliter.)
Huff has not released any details on which oral swab device(s) will be used by law enforcement. However, a 2006 study concluded no swab device is reliable enough for roadside screening of drivers.
There are two other problems with oral swab tests.
- Drugs presence does not imply impairment: Drugs will stay in your system for at least a short time after the effects of the drug have worn off.
- Drug concentration is not related to impairment: Unlike alcohol, increased drug concentration is not correlated to impairment.
Time to Pass a Bill?
“Drugged” driving could be a problem we need to confront. However, further research is still needed to determine:
- Whether drunk driving is increasing in the population
- The impairment effect of various drugs
In addition, reliable roadside testing equipment needs to be developed.
The bill (SB 1462) goes to the Senate Public Safety Committee on April 19.
- Berning, A., & Smither, D. D. (2014) Understanding the limitations of drug test information, reporting, and testing practices in fatal crashes. (Traffic Safety Facts Research Note. DOT HS 812 072). Washington, DC: National Highway Traffic Safety Administration. p. 2-3;
- 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. Report No. DOT HS 812 118). Washington, DC: National Highway Traffic Safety Administration. p. 3-4.
- Verstraete, A., Raes, E. (March 2006) Rosita-2 Project Executive Summary. Gent, Belgium: Ghent University.
- Armentano, P. (September 16, 2011) You are Going Directly to Jail: What it means, who’s behind it, and strategies to prevent it. (NORML Foundation).
- Occupational Employment and Wages, May 2015: 33-3051 Police and Sheriff’s Patrol Officers. (2016) Bureau of Labor Statistics.
- Under current law drivers can refuse any preliminary intoxication test (including the proposed swab test).
- The NHTSA has conducted 2 roadside surveys (2007 & 2013) at 300 roadside sites where drivers voluntarily submit to testing for approximately $60.
- The NHTSA was able to detect significantly smaller amounts of drugs in the 2013 survey.
- Cheaper testing equipment increased the prevalence of testing from 2007-2013.
- Synthetic cannabis and other drugs were not tested in 2007.
- Improved tests since 2007 can detect more types of drugs
- The locations of some roadside test sites changed between 2007 and 2013.
- The data does not allow for comparison to states where marijuana is legalized.
- The majority of drivers in fatal accidents are not tested for drugs.
- There is no consistent policy for drug testing across states.
- The FARS database can only record 3 drugs per individual.
- A positive drug test does not necessarily indicate impairment.)
- Devices currently on the market range from $6 to $25.
- As of 2015, there are an estimated 70,930 police and sheriff patrol officers in California.
- An ongoing pilot program in Victoria, Australia, utilizing road side oral screening technology has also yielded several false positives when used under roadside conditions.
- An international assessment or roadside saliva collection devices by the U.S. Department of Transportation and other agencies determined, ‘[N]o device was considered reliable enough in order to be recommended for roadside screening of drivers.’”)
- Under People v. Williams (2002) 28 Cal. 4th 409, 414, preliminary alcohol screening was admitted to prove intoxication if the instrument was reliable and administered properly by a competent operator. A new scientific test is reliable if there is “general acceptance of the new technique in the relevant scientific community.” People v. Kelly (1976) 17 Ca. 3d 24, 30. “For a variety of reasons, Frye was deliberately intended to interpose a substantial obstacle to the unrestrained admission of evidence based upon new scientific principles.” Id. at 31. (See also Frye v. United States (1923) 293 F. 1013.)
- At the current time, specific drug concentration levels cannot be reliably equated with a specific degree of driver impairment.” Factors that make prediction difficult for most other psychoactive drugs include:
- The large number of different drugs that would need to be tested (extensive testing of alcohol has been under- taken over many decades, whereas relatively little similar testing has occurred for most other drugs).
- Poor correlation between the effects on psychomotor, behavioral, and/or executive functions and blood or plasma drug concentrations (peak psychomotor, behavioral, and executive function effects do not necessarily correspond to peak blood levels; detectable blood levels may persist beyond the impairing effects or the impairing effects may be measurable when the drug cannot be detected in the blood).
- Sensitivity and tolerance (accentuation and diminution of the impairing effects with repeated exposure).
- Individual differences in absorption, distribution, action, and metabolism (some individuals will show evidence of impairment at drug concentrations that are not associated with impairment in others; wide ranges of drug concentrations in different individuals have been associated with equivalent levels of impairment).
- Accumulation (blood levels of some drugs or their metabolites may accumulate with repeated administrations if the time-course of elimination is insufficient to reduce or remove the drug or metabolite before the next dose is administered).
- Acute versus chronic administration (it is not unusual to observe greater impairment during initial administrations of drugs than is observed when the drug is administered over a long period of time).