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Patricia Smith and Paul Armentano: Does Sheriff Royal Support Bad Science to Convict Innocent Drivers?


By: Paul Armentano, Deputy Director, NORML and Patricia Smith, Chair, ASA-NC

March 5, 2013 - Wait until you hear what our good Sheriff is up to now! As the President of the California Sheriff’s Association, Keith Royal supports SB289 which would impose “Zero-Tolerance” DUID laws. While that might sound admirable on paper, the Devil is in the details.

DUID, short for "driving under the influence of drugs," is the latest buzzword among politicians and police -- however, in this case, words can be deceiving. Though billed by its proponents as a necessary tool to crack down on persons who operate a motor vehicle while impaired by illicit drugs, in reality, many newly proposed DUID laws -- in particular "zero tolerance" per se laws -- have little to do with promoting public safety or identifying motorists who drive while intoxicated. Rather, these laws potentially classify many sober drivers as impaired under the law solely because they were presumed to have consumed a controlled substance -- particularly marijuana -- at some previous, unspecified time.

This approach is not based on science but on convenience. In essence, "zero tolerance" per se laws impose a new, driving-related offense that is, in the words of one of its chief proponents, "divorced from impairment." Under this standard, any driver who tests positive for any trace amount of a drug or drug metabolite (byproducts produced following drug metabolization), is guilty per se of the crime of "drugged driving," even if the defendant was sober.

In the case of marijuana, these laws are particularly troublesome. THC, marijuana's main psychoactive constituent, may be present in the blood of heavy cannabis users for several hours or even days after past use, long after any performance impairing effects of the drug have subsided. Marijuana's primary inert metabolite THC-COOH is detectable in urine for weeks or sometimes even months after past use.

As a result, under the strict implementation of "zero tolerance" per se DUI drug laws, a person who consumes a joint on Monday could conceivably be arrested the following Friday and charged with "drugged driving," even though he or she is no longer impaired or intoxicated. To make an easily understood comparison, this law would be the equivalent of saying that you could be cited for having a glass of wine at lunch - a week ago.

Who Supports DUID Legislation?

The push for the implementation of "zero tolerance" per se DUI legislation began over a decade ago. In large part, this push was primarily driven by a small cabal of prohibitionists, police, and drug testing proponents. Most prominent among them were Michael Walsh and Robert Dupont. (yes, those DuPonts)

Michael Walsh is executive director of the Walsh Group, a federally funded organization that develops drug testing technology and lobbies for rigid workplace drug testing programs. Walsh is the former Director of the Division of Applied Research at the US National Institute on Drug Abuse (NIDA), and formerly served as the Associate Director to the Drug Czar.

Michael Walsh has been the impetus and the point man behind the US push toward state "zero tolerance" DUID legislation for some time. In November 2002, the Walsh Group partnered with the ONDCP to lobby state legislatures to replace their effect-based DUID laws with "zero tolerance" per se legislation. Then, at a joint ONDCP/NIDA conference held in February of 2004, Walsh pronounced, "There is clearly a need for national leadership at the federal level to develop model statutes and to strongly encourage the states to modify their laws."

Two weeks later, legislators in Congress began debating legislation to mandate states do just that. Though the Congressional measure failed, annual reports released by the White House Office of National Drug Control Policy since that time affirm that the passage of such legislation remains a primary policy goal. Today, the Walsh Group remains the primary lobby and educational organization on DUID-related information, working in concert with the Drug Czar's office to promote "zero tolerance" DUID legislation.

The second leading proponent of the enactment of "zero tolerance" DUID legislation is former 1970s Drug Czar Robert DuPont -- another ex-NIDA director who now helms the workplace drug testing consultation firm Bensinger, Dupont & Associates. Over the past two decades, Dupont has been a key player in the development and enactment of workplace drug testing guidelines, including the federal regulations that govern the testing of federally licensed drivers. Dupont is now lobbying to expand these federal guidelines to apply to all motorists. He also favors the establishment of random, roadside drug testing checkpoints.

"We must move away from the concept that you can't drive impaired by drugs to you can't drive on drugs at all," he says, noting that drivers who test positive for drug metabolites but are otherwise unimpaired should be stripped of their license and then be monitored through regularly scheduled drug tests, including hair testing, for a period of two to five years.

"Most people don't need drug treatment, they need a reason not to use drugs," and the enforcement of "zero tolerance" DUID legislation gives them that incentive, DuPont believes.

Why would anyone support a standard that even proponents acknowledge is “divorced from impairment?” Follow the money.

For information on medical marijuana, please visit www.asa-nc.com.

Paul Armentano is the Deputy Director of NORML
Patricia Smith is the Chair of ASA-NC


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