Growing danger: Drugged Driving

The driver who hit Gray, 61-year-old Ronald Hamrick, had been convicted of drug possession previously and had cocaine in his system when he was tested seven hours after the accident, Hocking County assistant prosecutor David Sams says.

If Hamrick had been drinking alcohol and had registered a blood-alcohol level of 0.08%, the case against him would have been open and shut, Sams says: aggravated vehicular assault, with drunken driving as a factor in the charge.

But Ohio, like most states, has no legal standard for determining what level of drugs in a person's system makes him too impaired to drive. The lack of such a guideline often makes it difficult for prosecutors to prove cases of "drugged driving."

In Gray's case, Sams spent several months reconstructing the crash and getting analyses from drug specialists to show that Hamrick had been impaired by cocaine. Eventually, it worked: Hamrick pleaded guilty to aggravated vehicular assault in September and will be sentenced today. He faces up to five years in prison.

"It's a felony under Ohio law to possess, much less use, cocaine," Sams says. "Yet we had to spend thousands of dollars on these experts to extrapolate back to the time of the accident to prove (Hamrick) had enough cocaine in his system that he shouldn't be driving."

More than 1.5 million people were arrested in the USA last year for driving drunk. Police departments and public health specialists estimate that at least as many people drive under the influence of drugs each year — and rarely are prosecuted for it.

Now, in an effort that is similar to the movement that began inspiring anti-drunken-driving laws a quarter-century ago, a growing number of government and law enforcement officials are pressing for laws that target drugged driving.

Congress, encouraged by White House anti-drug czar John Walters, is considering proposals that would use the lure of federal transportation money to push states to adopt what Sams wants in Ohio: "zero-tolerance" laws that would make it a crime for anyone to drive with any amount of illicit drugs in their system.

Only 11 states — Arizona, Georgia, Indiana, Illinois, Iowa, Michigan, Minnesota, Pennsylvania, Rhode Island, Utah and Wisconsin — have such laws now. Nevada has a law that sets impairment guidelines for blood and urine testing for certain drugs, including marijuana, marijuana metabolites, heroin, methamphetamine and cocaine.

The bill in Congress, which passed both the House and Senate as part of transportation packages and is now being considered in a conference committee, is modeled after the federal anti-drunken-driving laws that are widely credited with making American roads safer. The law required states to adopt the 0.08% blood-alcohol standard by 2004 or lose federal transportation money.

In 2003, 17,013 people died in alcohol-related traffic crashes, a 3% drop from 2002. In 1982, 60% of the traffic fatalities across the nation were linked to alcohol; federal studies say alcohol is a factor in 40% of the traffic fatalities today.

No simple test

But it's clear that fighting drugged driving will be considerably more complicated than the war on drunken driving:

• For now, there is no widely available roadside testing device that can quickly detect drugs in a person's body, as the Breathalyzer does for alcohol.

Researchers are developing saliva and urine tests that eventually could make roadside drug tests as easy as a Breathalyzer. But the wide variety of illegal, prescription and over-the-counter drugs that can impair drivers — and the countless ways in which drugs can affect the body — make such tests a more complex challenge.

• Zero-tolerance laws for drugged driving likely would spur a wave of lawsuits over individual rights.

The Drug Policy Alliance, the Marijuana Policy Project and other groups that push for more liberal drug laws say they agree that people should not drive when they're high. But the groups say that the push for zero-tolerance laws is misguided and unfair because it would punish people for private behavior rather than for actions that harm others, such as driving impaired.

The groups say, for example, that the proposed laws could ensnare a recreational drug user who smokes marijuana at a party on a Friday and still has residues of the drug in his urine when he drives to work Monday — without showing any sign of being impaired.

The critics say that police could use zero-tolerance laws to target types of drivers, particularly young adults, whom the police believe are most likely to use drugs. And, the critics say, the proposed laws would have no effect on people who become impaired on legal drugs such as prescription tranquilizers or over-the-counter cold medicines.

"They are going to end up taking people with a Grateful Dead bumper sticker and dragging them down to the (police) station for a drug test," says Bill Piper, national affairs director for the Drug Policy Alliance, a non-profit based in New York City. "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."

Walters counters that authorities have to draw the line somewhere, and that a simple, clear guideline — like that used to determine alcohol intoxication — is needed to combat drugged driving. And besides, Walters says, drugs such as cocaine and marijuana are illegal, so a driver who tests positive likely has broken the law.

U.S. Rep. Rob Portman, R-Ohio, is a sponsor of the zero-tolerance bill, known as the Drug Impaired Driving Enforcement Act of 2004. If the bill does not get all the way through Congress this year, Portman and other lawmakers say they will reintroduce it next year.

"For years, we have properly focused on drunk driving as a problem in this country," Portman says. "We have focused on it to a point where there has been a change in people's attitudes and behavior, and that has saved people's lives. Now we have to do that with drug use."

Tough cases to prove

In one way or another, every state makes it illegal to drive under the influence of drugs. But successful prosecutions on such charges are more difficult than they are for drunken driving because most states require police and prosecutors to prove that the drugs affected the driver to the point that he was unable to drive safely.

In a drunken-driving case, prosecutors can present the results of a roadside Breathalyzer test. But without a standard for impairment, most drugged-driving cases are based largely on the arresting officer's observations of the driver.

Defense attorneys usually can undermine an officer's testimony by focusing on how much expertise the officer has — or doesn't have — in recognizing signs of impairment from drug use. That's why, if a driver is arrested on drug and alcohol charges, prosecutors almost always build their case around the alcohol charge.

The lack of a nationwide standard for determining when a driver is impaired by drugs has prevented the U.S. government from figuring the precise number of drugged drivers nationwide each year, says Richard Compton, director of the Office of Research and Technology for the National Highway Safety Administration in Washington, D.C.

Using U.S. Census data and Monitoring the Future, a national survey of high school students conducted in 2003 by the University of Michigan, the White House anti-drug czar's office concluded that one in six high school seniors had admitted to having driven while they were high on drugs.

Compton says that in one study of fatal crashes in seven states, researchers tested drivers for about 50 commonly abused substances. They found that more than half the drivers had used alcohol and about 18% had used drugs.

Drivers taking legal drugs can be as dangerous as drivers who use cocaine or marijuana, Compton says. "A lot of people like to focus on illegal drugs," he says. "I'm more concerned about what's causing crashes. It could be illegal drugs. It could be over-the-counter drugs. It could be prescription drugs, or people who are ill. They feel rotten, they are tired, they buy something over the counter or maybe you have a drink or two and now you have a triple whammy. We don't want them on the road."

New detection devices

Tougher laws, more training for police officers and newly developed roadside tests would bolster cases against drugged drivers, says Scott Burns, deputy director for state and local affairs in Walters' office and a former county prosecutor.

Promising new roadside tests that use saliva from a driver's mouth are being tested in five states, Burns says.

The National Institute on Drug Abuse, National Highway Traffic Safety Administration and the anti-drug czar's office are paying $1.5 million over three years to evaluate six devices that are now available, says J. Michael Walsh of The Walsh Group, a substance abuse research and consulting firm in Bethesda, Md., that is coordinating the research. Most of the devices are simple.

In one, a saliva sample swabbed from a driver's mouth is inserted into a machine, which analyzes the sample for several types of drugs.

Another device resembles a thermometer and is placed under a suspect's tongue for 60 seconds. It can be used to test for up to six drugs. The devices have not been reviewed by the Food and Drug Administration for accuracy.

Almost all police officers in the USA are trained to spot signs of alcohol impairment.

But just 3% of officers nationwide are certified as drug recognition experts, known as DREs. With only 5,500 trained DREs in a nation with 18,000 police departments, most departments don't have any drug recognition experts. The DREs can be certified as experts by courts, giving extra weight to their testimony, Burns says.

Citizens Against Drug Impaired Drivers, based in Milwaukee, is pushing Congress and state legislators for more money to train officers as DREs, president Karen Tarney says. "Drugged driving is underreported because it's under-recognized by law enforcement," she says.

But Gray, who is still recovering from his injuries, says that governments must go beyond new laws to educate the public and make drugged driving unacceptable in the same way it became unfashionable to drive drunk.

Gray says that some drug users become adept at tricking the system. Young adults, aware of the stiff punishments for drinking and driving and of the shortcomings of the Breathalyzer tests, sometimes drink a small amount of alcohol after they smoke pot, Gray says. If they are stopped by police, officers then will smell the alcohol and give a Breathalyzer test. The motorists will test below the legal limit for alcohol in their system, and get off the hook.

"It scares me because it seems like the kids are not afraid" of driving high, says Gray, who was a trooper for 25 years before he had to retire on disability because of the accident. "They are more willing than ever to try the drugs. They don't drink. They won't try cigarettes because they know all about lung cancer. (But) they don't seem to know it's not a joke to drive on drugs."