STUDY: 'ZERO TOLERANCE' LAWS LAX ON DRUGGED DRIVING

Across most of the country, driving under the influence of illegal drugs is
not enough to result in conviction. Prosecutors often have to prove that
those drugs led to dangerous driving.

A study released this month finds only a handful of states have "zero
tolerance" laws against drugged driving, even as drug abuse surveys suggest
that millions of Americans are getting behind the wheel buzzed by
marijuana, cocaine and other performance-altering drugs.

The most recent federal survey on drug abuse indicates more than 9 million
Americans reported driving within two hours of consuming an illegal drug at
least once in the past 12 months.

"We know from surveys of people taking Breathalyzer tests that a third are
also using illegal drugs, but the hit rate is almost as high for people who
pass Breathalyzer tests," said Michael Walsh, an international expert and
consultant on substance abuse who led the two-year review of state drugged
driving laws.

The effort also involved the American Bar Association's committee on
substance abuse, with financial support from the Robert Wood Johnson
Foundation and the federal Highway Traffic Safety Administration.

The enforcement situation contrasts starkly with drunken driving laws in
force in all 50 states that set a threshold for enforcement based on blood
alcohol content.

"On its face, you'd think that driving with a substance in your body that's
illegal to possess in your pocket would itself be illegal, but that's not
the case in most states," Walsh said.

"There is an assumption that if we can identify the drunk drivers, we are
also getting all the drugged drivers. That's not true. There are literally
millions of Americans who are driving under the influence of drugs, often
with little or any alcohol," Walsh said.

Police have well-established tools, including their sense of smell and
Breathalyzer tests, to tell whether a driver is under the influence of
alcohol. But the signs of drug impairment are not always so obvious, and
the science of detecting illegal drugs in the blood or urine is more intrusive.

"The technology of screening for many illegal drugs is actually quite good,
and getting better, but the laws for using these techniques remain
inadequate in many states," said Linda Chezem, a law professor at Purdue
and Indiana universities and a senior circuit court judge in Indiana.

Walsh noted that at least 50 drug screening tests that get results from
urine samples within 10 minutes are on the market, and that new tests using
saliva samples are already in use in some workplaces, although they have
not been approved by the U.S. Food and Drug Administration. The key is
providing police the legal backup and technical competence to use those tests.

Procedures that make gathering and presenting evidence more difficult or
complex tend to discourage police and prosecutors from pursuing drugged
driving charges, said Chezem, who also served on the committee that wrote
the report.

Although most states require individuals to supply urine or blood for
testing if asked by the police, penalties for refusing vary widely. Some
only punish the driver if the original charge of drugged driving can be
proved in court.

Only Georgia, Arizona, Illinois, Indiana, Iowa, Minnesota, Rhode Island and
Utah have zero tolerance laws for any prohibited substance or drug in a
driver's body, the study found. The other states prohibit driving "under
the influence" of illegal drugs, but with various definitions of impairment
and how to prove it.

"There's no bright line for how many nanograms of cocaine or percentage of
metabolites of marijuana has to be in the blood to affect an individual's
ability to drive. People do vary to some degree, and defense lawyers are
more than ready to use that ambiguity," said Jerry Landau, special
assistant attorney in Phoenix and a member of the group that wrote the report.

"This isn't an issue of arresting more people or jailing more people; the
focus is on highway safety," Landau said.

Although he has no statistics on how many more drugged drivers are being
caught in Arizona now than were before the zero tolerance law took effect
in 1990, "I know there are more, because before we weren't prosecuting
hardly any unless they had already been involved in a fatal crash."