Nationwide Drugged Driving Fatalities
For the first time, there are now more drivers killed that are positive for drugs than those who were positive for alcohol.
Nationwide, 43% of drivers that were tested in fatal crashes had used drugs, eclipsing the 37% who tested above the legal limit for alcohol in 2015, according to a 2017 study. It’s important to note that these numbers came from 57% of the drivers in fatal crashes, as the other 43% where the drivers were not tested for drugs. 35% of the ones that were tested, tested positive for marijuana. 
What is Considered a ‘Drug’?
The legal definition of a “drug” in California is very broad. In essence, any of these substances can result in a DUI:
- Illegal drugs, controlled substances
- Legal drugs with a prescription
- Legal drugs sold over the counter
The only real limit to what counts as a drug is that it must “affect the nervous system, brain, or muscles” and thus cause impairment.
That means that having nearly any drug in your body could count as driving under the influence. And some are viewed much more harshly than others. To see the difference we’ll look in detail at marijuana, other illegal substances, and legal drugs.
Legalization of Recreational Marijuana
On November 7, 2016 voters in California voted in favor of Proposition 64, legalizing recreational marijuana use.
The state of California is poised to quickly become the world’s largest cannabis market. Proposition 64 (AKA Adult Use of Marijuana Act) will allow Californians who are 21 and older to possess, transport, buy and use up to an ounce of cannabis for recreational purposes and allow individuals to grow as many as six plants. The measure will also allow retail sales of marijuana, and impose a 15% tax.
Law Enforcement is bracing for possible “public health and safety costs” as a result. Rep. Patrick Kennedy, an adviser to the opposition group SAM Action said, “We will continue to hold this industry accountable, and raise the serious public health and safety issues that will certainly come in the wake of legalization.”
Marijuana for medical purposes is legal in 29 states and the District of Columbia, and laws permit recreational use in 8 states, plus DC as of May, 2017. Despite cannabis gradually becoming legal within the states, marijuana still remains illegal at the Federal level.
Driving While Stoned
It’s still illegal to operate a motor vehicle, boat, aircraft or any other such vessel while under the influence of drugs in California.
Law Enforcement agencies across California are now actively training to keep up with the new data, and to spot drug-impaired drivers. It is however, a difficult task because unlike the 0.08 percent blood level for DUI offenses, there is no presumed-level of intoxication and drugs affect everyone differently.
Regardless, driving impaired remains illegal, no matter the substance in every state.
The California Police Chiefs Association demonstrated a new portable saliva test, manufactured by Alere Toxicology, that proponents say could one day be widely used to screen for the recent use of marijuana and five other drugs. A representative for Alere said his company’s device has a 95% accuracy rate, testing for cannabis, cocaine, methamphetamines, opiates and other drugs:
|Drug Name||Abbreviation||Cutoff||Approximate Detection Time in Saliva|
|Amphetamine||AMP||50 ng/ml||72 hours|
|Cocaine||COC||20 ng/ml||24 hours|
|Marijuana||THC||40 ng/ml||14 hours|
|Meth & Ecstasy||mAMP (MDMA)||50 ng/ml||72 hours|
|Opiates||OPI||40 ng/ml||24-48 hours|
|Phencyclidine||PCP||10 ng/ml||1-3 days|
Over 400 Possible Other Substances
The National Highway Traffic Safety Administration tracks more than 400 substances in their statistics. Marijuana accounted for 35% of positive tests reported. Amphetamines accounted for 9% of substances detected, and more than half of the positive tests in the report were caused by “other drugs.”
These figures reveal the wide range of known and unknown substances that can contribute to drug impairment.
Currently, there are no drug field tests comparable to a preliminary alcohol screening using a breathalyzer. Law enforcement officials are trained to recognize signs of drug impairment and can make the decision to take a driver into custody for further testing, but these methods are controversial and can be disputed in court by a qualified Drug Offense Attorney that specializes in DUID Cases.
“Drug impairment is a complicated topic,” says James Hedlund, an independent safety expert with Highway Safety, “Drugs can affect people in different ways. Some things make you super excited, and some things slow you down.” 
Law Enforcement Responds
The state Assembly of California recently approved a bill that will have the California Highway Patrol lead a taskforce dedicated to fighting drug-impaired driving statewide. Under the bill, authored by Assemblyman Tom Lackey (R-Palmdale), the California Highway Patrol will test technologies (like the saliva test) and develop best practices for California law enforcement officers to identify drivers impaired by substances other than alcohol.
Police departments in Los Angeles, Fullerton, Sacramento and Bakersfield are currently trying the saliva swab test on a limited basis.
“As someone who spent 28 years with the CHP, I know how dangerous an impaired driver can be,” said Lackey. “To deal with a problem as complex as drugged driving, we need a coordinated response based on strong science and best practices. This CHP-led taskforce will make sure that happens.” 
Driving Under the Influence of Drugs (DUID) is one of those criminal offenses that can essentially ruin your life in terms of career, and freedom if you are convicted or plead guilty. There is no reason not to take every possible measure to avoid a conviction for driving under the influence of drugs.
If you have recently been arrested, please don’t hesitate to call us for a free, no-obligation consultation with our Criminal Defense Team. During your call, we will hear the details of the case and advise you on the best approach to defend yourself.
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Seppi Esfandi is an Expert in Criminal Law who has over 16 years of practice defending a variety of criminal cases.