Authorities target driving while 'drugged'

After a cocaine-addled driver slammed the back of Michelle Logemann's car in Milwaukee earlier this year, she gave birth prematurely. The child, whom she named Luke, survived less than a day.

The driver was Paul Wilson. Had he been drunk, he would have faced a possible felony murder charge and up to 40 years in prison for causing the fatal accident. But because he was using illegal drugs, he received two years for reckless homicide and another 20 months for causing Ms. Logemann's severe injuries.

"If he were drinking, which is legal, he would have been incarcerated for many, many more years," she says. "That's what bothers me most as far as the law is concerned."

While the nation has clamped down on drunken drivers over the past decade, many "drugged" drivers - an estimated 8 million a year - have been getting a pass of sorts. In part, because proving drugged driving in most states is extremely difficult, prosecutors rarely take it on.

But that could be about to change. Tuesday, the nation's drug czar, John Walters, put people who drive under the influence of illegal drugs on notice that he's leading a national fight to ensure they face the same harsh penalties as drunken drivers.

It's following a trend started in Europe. Germany, Sweden, and Belgium have already made the mere presence of illegal drugs in a driver's system enough to convict.

"Between 10 and 22 percent of drivers involved in motor vehicle crashes are under the influence of illegal drugs," says Mr. Walters. "It's not taken seriously enough."

The Office of National Drug Control Policy has put together a model law that it will lobby states to adopt. It's based in part on the eight states that already have what are known as "per se" laws on the books. In them, the "mere presence" of an illegal substance in a driver's blood is enough evidence to convict.

The office is also starting an information campaign to educate the public about the dangers of drugged driving. The goal is to increase overall safety on the nation's streets, but there's also a prevention element. Of the more than 6 million abusers of illegal drugs in the United States, more than half are in denial. A brush with the law is often the first harsh slap of reality that they have a problem.

"This is a real opportunity to get people who are in trouble with drugs into treatment, because most state laws mandate drug treatment [as they do for drunken driving]," says Michael Walsh, who headed up the President's Drug Advisory Council under the senior President Bush. "The bad news is that it's hard to get a conviction the way the laws are written."

The discrepancy between punishments for drunken and drugged drivers has been apparent to police and prosecutors for more than 20 years. The problem is based in part on technology to measure drugs in a person's system, and in part on the weakness of many state laws.

Mr. Walsh was the lead author of a study released last week by the Robert Wood Johnson Foundation and the American Bar Association's Standing Committee on Substance Abuse. It found that most state laws require prosecutors to prove that the use of an illegal drug caused the driving impairment. The standard "is a difficult task for a scientist and even more difficult for a prosecutor" to prove, the report found. As a result, few people are ever prosecuted for drugged driving in those states.

Until recently, there's also been no drug equivalent to the alcohol Breathalyzer that could be used to quickly assess whether drugs are present in a person's system. Add to that the difficulty that the scientific community has had in setting impairment standards for illegal drugs, because they affect individuals differently.

"We know what alcohol impairment is like, and we can say with certainty that a person with 'X' level of alcohol will show the following signs of impairment," says Peter Grady, an assistant attorney general in Iowa, which was one of the first states to pass a per se law. "The problem is that we can't draw that kind of line with controlled substances."

Drug-reform advocates adamantly oppose such per se laws, arguing they could be used to wage a witch hunt against recreational drug users. They contend that the standards of impairment for drugged driving should be the same as the standards for drunken driving.

"If people are driving impaired for whatever reason, that should be a criminal offense," says Ethan Nadelmann of the Drug Policy Alliance. "My concern is that they'll end up arresting and punishing a lot of people who are not driving impaired but who test positive for marijuana because they smoked a joint a day or two or 10 days ago."

In Iowa, as in other states, police still need evidence of impairment to stop a driver. As a result, Mr. Grady contends that no more people are being stopped or even arrested than before. "What you should see are more convictions, because now you have a different way to prove it," he says.

Still, Mr. Nadelmann questions the constitutionality of a law that makes the "mere presence" of an illegal drug reason to convict.

The Iowa law was challenged in a license revocation case, but was upheld.