Drugged Driving Laws Lack Logic

[This article originally appeared in Cannabis Culture magazine in 2005.]

Assume you drink two beers while watching a baseball game on Saturday. While driving home from work the following Thursday, you’re picked up for a broken tail light. At his own discretion, the officer decides to test you for alcohol impairment. The beers you drank five days prior are detected. As a result, your car is impounded, you’re dragged away to jail, you lose your license, and you suffer a hefty fine.

Think this sounds far fetched? Think again. Driving Under the Influence of Drugs laws (DUIDs) are doing exactly this: testing for trace amounts of THC and cannabinoid metabolites that can exist in the human body for weeks (and, in chronic smokers, even months) after the behavioral effects of cannabis have disappeared.

“I don’t know anybody who thinks it’s acceptable to drive when you’re impaired, whether the impairment is caused by prescription drugs, fatigue, marijuana, or anything else,” Bruce Mirken, director of communications for the Marijuana Policy Project (MPP) in Washington, D.C., told Cannabis Culture. “But we have a huge educational job to get the public to understand that these laws literally make it a crime to drive stone cold sober.”

drive high get a dui for blog

Politicians often compare drugged driving initiatives to existing drunk driving laws, treating them as nearly identical. However, there’s a basic logic to all drunk driving laws: alcohol consumption at a certain rate equals impaired driving performance, which in turn increases the chance of accidents. While the nuances of individual laws and enforcement techniques will probably always remain a point of contention, the basic public policy of preventing drunk driving is sound.

This is where the similarity between policies to combat drunk driving and drugged driving ends. A conventional breathalyzer—or even the more stringent blood analysis—tests for current intoxication. However, in a blatantly illogical and unscientific twist of irony, most drugged driving laws test not only for current marijuana intoxication, but also consumption that occurred weeks prior to the test. Because the effects of cannabis last only hours, consumption during prior days or weeks necessarily has no effect whatsoever upon current driving performance.

The premise of drugged driving initiatives—like that of their drunk driving cousins—is impairment at the time of vehicular operation. Therefore, any test that detects marijuana in the body of a driver that has ceased to influence his ability to operate a vehicle is neither ethical nor scientifically valid. It’s identical to a driver being busted for drunk driving on June 18 for the half a beer she drank on June 3.

Laws Around The World

The United Kingdom, Australia, and many states in the U.S. currently have DUID laws on the books. The federal governments of Canada and the U.S. are seriously considering such laws.

cannabis rally in canada

Victoria, the second largest state in Australia, on December 1, 2004 began random roadside tests for illicit drugs using a controversial saliva swab method. This imperfect technology caused significant embarrassment to the Victorian government when, on the day of its launch, it resulted in a well-publicized false positive for truck driver John De Jong. Subsequently cleared by follow-up independent and police lab tests, De Jong now may sue the government and Victoria police for the slur to his reputation.

The Royal Automobile Club of Victoria (RACV) has voiced opposition to the roadside testing program. “The whole episode on day one and its results were a fiasco. If it continues, it will be a disaster for road safety,” said RACV public policy director Dr. Ken Ogden.

“The key issues for any drug testing program are fairness and reasonableness,” said Norman Marshall of the Australian Drug Management and Education Group, one of Australia’s largest drug testing companies. “You cannot have a program which allows for someone who is innocent to be put in a position where they are suffering anxiety and distress. This is a classic example of it.”

In the United States, anti-drugged driving laws are being adopted at an alarming rate at the state level. A federal measure is also being considered. If it becomes law, federal transportation funds will be withheld from states that do not comply (as has been done in the case of drunk driving laws).

Despite federal budget deficits, a poor economy, and soldiers in Iraq lacking basic flack jackets, the Bush administration’s drug czar, John Walters, is spending $10 million on a single anti-drugged driving television ad specifically aimed at teens who use marijuana.

The Studies

A 1983 U.S. National Highway Transportation Safety Administration (NHTSA) study concluded that the only significant affect of cannabis use was slower driving (not only is this “not bad,” but it’s arguably a positive effect of driving high). Another NHTSA study in 1992 revealed that pot is rarely involved in driving accidents, except when combined with alcohol. (Many studies do not isolate alcohol consumption when reviewing marijuana-related accident statistics; thus, marijuana is cited in accidents caused by people who are also drunk.)

driving-while-stoned-dui-checkpoint-marijuana-pot-high for blog

A 1998 study by the University of Adelaide and Transport South Australia examined blood samples from drivers involved in 2,500 accidents. It found that drivers with cannabis in their systems were slightly less likely to cause accidents than those without. In Canada, a University of Toronto study in 1999 revealed that drivers who consumed a moderate amount of pot typically refrained from passing cars and drove at a more consistent speed.

According to the Cannabis and Driving report, a comprehensive literature review published in 2000 by the United Kingdom’s Department of Transportation, “The evidence that certain classes of drug may impair driving, and thereby, increase accident risk, is inconclusive.”

Zero Tolerance Laws

Society would consider absurd any law that criminalized drivers who consumed two ounces of beer and got behind the wheel because, quite simply, such small amounts of alcohol don’t impair driving skills. However, the most frightening variety of drugged driving policies, called zero tolerance laws, do exactly this. Zero tolerance laws test for extremely minute quantities—and often any quantity—of THC or cannabinoid metabolites in a driver’s body. Thus, friends of medical marijuana users who are exposed to second-hand smoke or someone who attends a rock concert or rave club can theoretically ingest enough THC to criminally implicate themselves.

Eleven U.S. states currently have zero-tolerance laws on the books: Arizona, Georgia, Indiana, Illinois, Iowa, Michigan, Minnesota, Pennsylvania, Rhode Island, Utah, and Wisconsin. Each of these states criminalizes drivers who are found to have either very minute or any amount of cannabis in their bodies. Thus, a joint smoked three weeks ago—for which absolutely no degradation of current driving skills exists—could result in a suspended license, hefty fines, or jail time.


Nevada has a law that criminalizes drivers for such minute amounts of THC[1] in their system that it is, in effect, a zero tolerance law. A zero tolerance also passed through the state legislature of Ohio.

“The prohibitionists have been very clever in choosing this as a topic to emphasize. Nobody wants impaired drivers on the road. ‘Zero tolerance’ actually sounds good. But we must explain why these laws criminalize people who are not impaired and waste resources that could do good in other ways. It’s a good way to stir up fear. Prohibition depends on fear,” said the MPP’s Mirken.

Medical Marijuana & Prescription Drugs

Another shortcoming of current drugged driving initiatives around the world is the lack of consideration for the often significantly debilitating effects of prescription drugs. A recent study revealed that 44 percent of Americans take prescription medication. Yet these drugged driving laws test only for illegal drugs, not prescription or over-the-counter medications.

“Some of these laws do make an exception for prescription drugs such as Marinol,” said Mirken. “But it’s no different than if you were smoking the natural herb. In fact, oral THC is somewhat more psychoactive. So we have this bizarre attempt to make criminals out of a particular class of citizens using a natural substance because they are socially disfavored and a good whipping boy for politicians.”

cheech and chong driving high for blog

Canada and ten states in the U.S. permit licensed use of medical marijuana by their citizens. Sponsors of drugged driving bills don’t seem to consider that sufferers of chronic pain, wasting syndromes, and spasticity disorders actually increase their driving skills after consuming moderate doses of cannabis to alleviate their debilitating symptoms. Policy makers also do not consider that many pharmaceutical drugs cause side effects that are markedly more detrimental and dangerous than a standard dose of cannabis.

If unchecked, the trend toward stricter persecution of drivers who are responsible cannabis smokers and medical marijuana users could someday result in total prohibition from the roads. “It’s just a matter of time before they say you have to pass a drug test before you can get a driver’s license,” said Bill Piper, national affairs director of the Drug Policy Alliance in New York City.

[1] Two nanograms per milliliter; company drug screenings typically test only as low as 50 nanograms.

HBK11RenderGooey Rabinski is a counterculture writer who has contributed dozens of feature articles to magazines such as High Times, Skunk, Heads, Weed World, Cannabis Health Journal, Green Thumb, and Treating Yourself. He is the author of Understanding Medical Marijuana (2015 Edition), available on Amazon Kindle.

His marijuana-related freelance photos, spanning back more than a decade, are available on Instagram and Flickr. He tweets from @GooeyRabinski.


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