Law Enforcement Struggles to Detect ‘Drugged Driving’

By Hugh C. McBride
In the United States, determining if a driver is legally drunk is a fairly straightforward process, based primarily upon whether or not a suspect's scientifically measured blood-alcohol concentration is at or above the legal limit.

In cases of “drugged driving” though, the process is much more difficult.

For law enforcement and public safety personnel, drugged driving cases can be particularly vexing when they involve drivers who are operating motor vehicles while under the influence of legal substances such as prescription pills or over-the-counter (OTC) medications – the use (and abuse) of which are both on the rise in the United States.

The Scope of The Problem

According to the National Institute on Drug Abuse (NIDA), more than 10 million Americans (about 4.2 percent of the population) who responded to the 2006 National Survey on Drug Use and Health (NSDUH) reported having driven while under the influence of illicit drugs at least once in the previous 12 months. Among individuals in the 18- to 25-year-old demographic group, the drugged driving rate rose to 13 percent.

When prescription or OTC medications are added into the drugged driving discussion, the problem becomes exponentially larger, and potentially much more difficult to quantify. For example, the 2007 NSDUH revealed that the rate of prescription drug abuse among young adults had increased by 12 percent between 2006 and 2007, which leads to the relatively safe assumption that teen drivers are more likely to be impaired by prescription meds.

But because standard “impairment” levels have not been established, and because blood tests are not regularly ordered (the National Highway Transportation Safety Administration estimates that only 15 percent of drivers who were involved in fatal crashes were tested), establishing the true prevalence of drugged drivers on American roads remains beyond the grasp of law enforcement and safety personnel.

The Challenges of Enforcement

Even when a driver clearly shows signs of impairment, if drugs (illicit, prescription, or OTC) are involved, the matter is far from the proverbial prosecutorial “slam dunk.”

The challenges associated with the enforcement of drugged driving laws are expressed quite succinctly in a sentence taken from the website of the U.S. Drug Enforcement Agency [emphasis added]:

While it is illegal in all states to drive a motor vehicle while under the influence of alcohol, drugs other than alcohol, or a combination of alcohol and other drugs, there is no consistent method across states for identifying drug impairment.

In the past, “drug impairment” was almost universally used to describe the effects of illicit substances such as marijuana, cocaine, or LSD – but as the abuse of prescription and over-the-counter medications has become more prevalent in the United States, so, too, have instances in which individuals’ driving skills have been negatively affected by legal substances.

According to the California DUI Helpwebsite, determining whether or not a driver is impaired to the point of illegality can be a highly subjective pursuit:

The crucial point in any California DUID [Driving Under the Influence of Drugs] case is whether or not the accused motorist meets the legal definition of being under the influence. In a DUID case, “under the influence” is defined as unable to operate a vehicle with the same caution characteristic of a sober person, of ordinary prudence, under the same or similar circumstances.

It does not matter if the drug taken is legal or illegal. It doesn’t matter if the drug is prescribed or not – even taking over-the-counter cold medicine can result in a DUID case. The only question is whether the legal definition of driving under the influence of drugs is satisfied.

Unlike drunk driving cases, there is no “legal limit” when it comes to driving under the influence of drugs in California. The sole question is whether the driver is impaired, and there is no magic number as in a drunk driving case.

As J. Michael Walsh and Robert DuPont pointed out in their June 17, 2007 article in the Washington Post, this lack of standardization introduces a subjective element into what, in the case of alcohol, is an objective standard, and also creates an unequal system in which actions that would definitely be crimes in one state are legal in another.

“In most states, proving drugged driving requires showing that an illegal substance caused the impaired driving rather than showing less-onerous ‘per se’ evidence, a standard requiring only that it be proved that a driver had been using drugs when he or she got behind the wheel.,” Walsh and DuPont wrote. “The good news is that 15 states, including Virginia, have recently passed legislation to make it easier to convict drugged drivers by establishing such standards for drug use … [though] neither the District [of Columbia] nor Maryland has a ‘per se’ drugged driver law.”

Advice from Experts

Though many cases of drugged driving doubtlessly involve individuals who have ingested substances for recreational purposes, others may have resulted from a lack of awareness of the potential effects of a prescription or OTC medication.

Speaking to Julie Chen on the Sept. 30 edition of CBS’s “The Early Show,” Dr. Charles Sophy (the medical director for the Los Angeles County Department of Children and Family Services) said that the problem of drugged driving can be exacerbated by individuals who don’t understand the impact of what they are putting into their bodies.

“The pharmacies don't put all those labels on the bottles that you get for no reason,” Sophy said. “You have to read them. It's very dangerous – especially when you are combining medicines or if you haven't slept well or eaten well.”

Though every event involving medication and the decision to drive is a unique circumstance, certain guiding principles are applicable. In the January 1995 edition of the American Automobile Association’s Via Magazine, pharmacy professor Dr. Linda Bernstein offered the following guidance:

• If you are taking a medicine for the first time, don't plan to drive right away. Wait until you know how the medication affects you.
• If you have to take a drug that impairs driving ability, designate a driver.
• Bear in mind that the elderly may be more sensitive to a drug's side effects, especially those that alter mental functions.
• Always ask your pharmacist or physician about any dangers of interacting OTC drugs with prescription medications you may be taking.
• Alcohol can enhance the depressive or sedating effects of any drug. Always consult a doctor or pharmacist before drinking when taking drugs.
• Always speak to your doctor before changing the dosage of, or stopping, a prescription medication.

As Dr. Sophy told Julie Chen, deciding to drive after taking medication requires a thorough understanding of a potentially complex set of circumstances. “There are a lot of factors that go into how the medicine will affect you, your brain and your body,” he said. “I urge people to take caution, read labels and be very prudent about what you are doing.”