There’s no national standard for cannabis impairment, like there is with alcohol. But that could soon, albeit slowly and incrementally, change.
Congress passed the Bipartisan Infrastructure Investment and Jobs Act, which contains language aimed at combating impaired driving, including cannabis-impaired driving. Specifically, the bill calls for a report that “identifies, and contains recommendations for addressing, Federal statutory and regulatory barriers to — (A) the conduct of scientific research on marijuana-impaired driving; and (B) the establishment of a national clearinghouse for purposes of facilitating research on marijuana-impaired driving.”
Amid federal prohibition, and therefore without federal guidance, nearly half the states in the country have passed adult use legalization laws. As a result, lawmakers, policymakers, and regulators have taken a patchwork of approaches to curbing and preventing cannabis-impaired driving. Washington State, for example, looks at blood, while most other states rely on members of law enforcement to detect impairment, known as Drug Recognition Experts, or DREs.
Both methods are problematic. And the lack of understanding what, exactly, cannabis-impaired driving looks like and how best to measure it has created two untenable situations: the potential for undetected cannabis-impaired drivers on the nation’s roads, and, conversely, the potential for cannabis consumers to be wrongly identified and charged as impaired.
While the language in the infrastructure bill is the first of its kind to reach the president’s desk, this is far from the first time that there’ve been calls in Congress to critically examine this issue.
This March, the U.S. Senate Caucus on International Narcotics Control released a report to Congress that urged the U.S. Department of Transportation to “accelerate research regarding the development of an accurate standard to detect cannabis-impaired driving.”
Further, it called for forensic and toxicology labs to be funded at the “highest possible level, and that such labs be required to conduct test specific to cannabis use,” as well as increased funding for law enforcement training. The report also called for the National Highway Traffic Safety Administration to work with states and other local jurisdictions to “establish a uniform reporting system to collect information on cannabis-related driving incidents nationwide.” (This hasn’t happened.)
And, back in 2017, the U.S. Department of Transportation released Marijuana-Impaired Driving: A Report to Congress, concluding in a request that states collect better data on cannabis-impaired drivers. The report also called for continued research to “enable development of an impairment standard for driving under the influence of marijuana,” but until then, an increased use of DREs.
“The poor correlation of THC level in the blood or oral fluid with impairment precludes using THC blood or oral fluid levels as an indicator of driver impairment,” the report concludes, adding that this is why the use of blood alcohol content, like with alcohol, won’t work for cannabis. “The use of THC level cannot serve this same role for marijuana-impaired driving.”
Colorado Senator Gov. John Hickenlooper, also the former governor of the state, penned the cannabis-impaired driving provisions in the behemoth legislative package. Hickenlooper told Cannabis Wire that Congress is “catching up” to American voters’ attitudes on cannabis legalization.
“When it’s signed into law, our bill is an important step toward researching how we can regulate cannabis-impaired driving safely and accurately,” Hickenlooper said.
Support for the impaired driving provisions includesMothers Against Drunk Driving, the Governors Highway Safety Association, the National Sheriffs Association, and the Coalition for Cannabis Policy Education and Regulation (CPEAR).
Back in 2014, then-Gov. Hickenlooper appointed CPEAR founder Andrew Freedman to be Colorado’s first Director of Marijuana Coordination. Freedman, who left that post in 2017, launched CPEAR this year, and the group counts tobacco and alcohol heavyweights Altria and Molson-Coors as members. CPEAR was the most vocal cannabis-focused group when it came to Hickenlooper’s push to pass these provisions.
Freedman told Cannabis Wire that when CPEAR approaches lawmakers, the issue of impaired driving is “one of three questions, every time.”
“The challenge that we’ve kind of given all of our members is, if we are going to say that the federal government needs to increase its role from this prohibition to actually regulating cannabis, they have to prove why that would create a better outcome for communities than the status quo,” Freedman said. “One of the places where that is most clearly evident is the lack of clarity around what it means to drive drugged, lack of science about how to test for impairment, and lack of resources to be able to educate drivers about how to be responsible drivers.”
Nyatan Bol, a spokesperson for responsibility.org, which counts Diageo and Bacardi as members, told Cannabis Wire that the infrastructure bill is a “big step forward in the effort to eliminate impaired driving.”
“Data shows that people are combining substances and driving, which poses a high crash risk. Often, they are using alcohol and cannabis but many other drugs too, which is why we must have a multi-pronged approach,” Bol said.
The American Property Casualty Insurance Association (APCIA) reacted to the infrastructure bill’s passage by saying that the nation’s insurers are “optimistic for a safer future.”
Nat Wienecke, senior vice president of federal government relations for APCIA said in a statement that the group, and its members, have “advocated for more research to develop a method of measurement for marijuana impairment and an objective marijuana impairment standard. As more states legalize marijuana, it’s important to fully understand the risks associated with working or driving under its influence. Simply put, without more research, no one can say, ‘how high is too high’ to drive or work.
The infrastructure bill also calls for the report to consider a “national clearinghouse” for researchers to access “samples and strains” that consumers can buy in state-legal shops, and to include recommendations on “increasing and improving” research access to these products, which are “lawfully available to patients or consumers in a State on a retail basis.”