Medical or Recreational Marijuana and Drugged Driving

Abstract

Beginning in the 1920s and lasting for seventy years, state and federal law treated marijuana as a dangerous drug and as contraband, forbidding its cultivation, distribution, possession, and use. Over the last two decades, however, numerous states have enacted laws permitting marijuana to be used for medical treatment. Some also permit its recreational use. Those laws have raised a host of novel legal and public policy issues. Most of the discussion, and almost all of the litigation, has involved the respective roles of the states and federal government and how each one may and should deal with this very controversial subject. One issue that has received little attention in the legal community is the risk that medical and recreational marijuana laws will pose to highway safety. Will those laws increase, decrease, or leave untouched the rate of accidents and fatalities on our nation’s roadways? How should the criminal justice system — in particular, its law enforcement officers — address the problem of “drugged driving” in general and in states with medical marijuana laws? This Article addresses those issues. Some of the possible solutions do not involve changing the law. Training law enforcement officers to better spot drugged drivers, developing safe, reliable, portable, and inoffensive devices to test drivers for marijuana use on a highway shoulder, identifying a particular concentration of marijuana in the blood or some other bodily fluid that can be used to establish impairment — those and other steps can be taken without changing the legal framework for addressing the problems that occur when people drive under the influence of an intoxicating substance. But it also may be necessary to modify the laws governing alcohol in order to reduce the crashes caused by marijuana use. People often take those drugs in combination, and a marijuana-alcohol cocktail is more debilitating that either drug consumed alone. States therefore may need to lower their thresholds for drunken driving in order to dissuade people who use marijuana and alcohol together from getting behind the wheel.