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a. Per Se Standard
Federal legislation does not directly address the problem of drugged driving; however, all 50 states and the District of Columbia have adopted new laws or amended their laws to include sanctions that specifically target drugged drivers.
Almost one - third of states have adopted the per se standard, which may be the single most effective policy tool for dealing with drugged drivers. Any detectable amount of a controlled substance in a driver's body fluids constitutes per se evidence of a violation or "drugged driving". This has been the standard for commercial drivers in the U.S. since 1988. It is also the standard widely used in the developed world outside the U.S., including Western European nations, Canada, Australia and New Zealand. The benefit of a per se standard is that prosecutors do not have to meet more complex standards of guilt. In addition, with the per se standard drivers know that they must abstain from use of illegal drugs before getting behind the wheel of a car or face the risk of a Driving While Intoxicated (DWI) conviction.
Conviction of drugged drivers is not the only positive outcome of establishing a per se statute. Drivers who are found guilty of driving drugged can be assessed for drug dependence and offered counseling and treatment if necessary. The per se standard sends a strong message to drug abusers that they are not welcome on the nation's roadways. |  |
b. Penalties
Per se laws vary state to state; however, penalties for drugged driving should be comparable to those instituted for drunk driving offenses. This may include loss of driving privileges, fines and possible imprisonment, all of which are more severe for multiple offenses.
c. Constitutionality
 | The Supreme Court has deliberated on matters relating directly to the issue of drug and alcohol testing in the past and has consistently ruled in favor of such things as roadside blood alcohol concentration (BAC) testing, sobriety checkpoint roadblocks and random student drug testing.
Examples of cases that have upheld the legality of the following protective safety measures: |
Legal Resources
 | Safe, Accountable, Flexible, Efficient Transportation Equity Act of 2005 (SAFE - TEA)
One of the provisions of the 2005 legislation called for the development of a national drugged driving policy, increased funds for drugged driving research, and authorization for the Department of Transportation (DOT) to issue a model state statute on drugged driving to encourage states to adopt per se laws. Unfortunately DOT requested a continuation by Congress each ensuing year and nothing resulted. Now SAFE - TEA is up for re - authorization in 2009. This language must be preserved in the 2009 legislation, and preferably, modified. Read the suggested language for the reauthorization here.
Comprehensive information on SAFE - TEA can be found at the Department of Transportation's Federal Highway Administration: http://www.fhwa.dot.gov/safetealu/ |
 | The Feasibility of Per Se Drugged Driving Legislation
Funded by the Robert Wood Johnson Foundation's Substance Abuse Policy Research Program, the Walsh Group P.A. and the American Bar Association's Standing Committee on Substance Abuse gathered experts including police, judges, prosecutors, and health and safety constituent groups to review state laws regarding drugged driving and to explore how these laws might be made more effective.
Key findings of the expert consensus group include:
- Drugged drivers are less frequently detected, prosecuted, or referred to treatment compared with drunk drivers.
- There is a lack of uniformity or consistency in the way the 50 U.S. states approach drugged drivers.
- Current law in most U.S. states make it difficult to identify, prosecute, or convict drugged drivers.
- Too few police officers have been trained to detect drugged drivers.
- Per se laws are feasible and represent a good strategy for dealing with drugged drivers.
- Per se laws can assist in the prosecution of drugged driving.
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 | Drug Toxicology for Prosecutors
The American Prosecutors Research Institute developed this report specifically for prosecutors to better understand drug toxicology in the context of prosecution of drugged driving cases. |
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