NYS Legislature must pass laws to deal with driving while drugged

As we approach the one-year mark of the signing of the bill that legalized recreational marijuana in New York, many of its shortcomings have yet to be addressed, such as the safety and well-being of New Yorkers traveling on our roads. Evidence from states that legalized marijuana, such as Colorado and California, vividly illustrate that New York can expect the number of crashes and fatal crashes will increase.

In Colorado, before the legalization of marijuana in late 2012, the percentage of fatalities when a driver tested positive for marijuana was roughly 10%, according to the Colorado Rocky Mountain Study. Following legalization, that number increased by 2% a year to a 21% fatality rate in 2019. While total traffic deaths in Colorado rose 24%, deaths in which drivers tested positive for marijuana increased 135%. The National Highway Traffic Safety Administration reported last year that 56% of drivers involved in serious injury and fatal crashes nationally tested positive for at least one drug.

This is particularly troubling for Long Island, which has some of the nation's highest levels of road fatalities — including a crash last summer in Quogue where a drugged driver slammed into an Uber and killed four people.

These concerns were raised during floor debate in the state Senate and Assembly, but the Democratic majority said details would come later. With the Cannabis Control Board poised to publish rules and regulations allowing dispensaries and lounges to sell marijuana before year's end — later is now.

The legislature must deal with driving while drugged in three important ways:

1) Revamp state law so it properly considers driving while impaired by the combined influence of drugs. Currently, district attorneys are required to prove a defendant’s ability to drive is impaired by a specific drug; when drivers refuse, it's extremely difficult to prove driving while drugged. As such, the definition of a “drug” should be amended to include “any substance or combination of substances that impair, to any extent, physical or mental abilities.” This would reestablish “impaired” and “intoxicated” as separate standards, which is necessary to recognize the distinct and scientifically supported danger of drug-impaired driving.

2) Establish a zero-tolerance policy for cannabis use by drivers under age 21, similar to underage driving after drinking alcohol. Teenagers’ lack of driving experience, together with risk-taking behavior, heightens their risk for crashes. The consumption of cannabis by those with questionable driving skills poses an even more serious problem. A strong message must be sent to young people that, although marijuana may be legal for adults, underage driving after using marijuana will not be tolerated.

3) Utilize oral fluid swab tests to determine recent drug use. Oral fluid tests in other states, like Michigan, have proved effective in determining whether a driver has recently ingested or inhaled drugs before driving. Refusal to submit to a field test — as is the case with a Breathalyzer — should result in license revocation and be admissible in court. Scientifically establishing recent drug use by oral fluid testing will help law enforcement properly identify impaired drivers on New York’s roadways.

With marijuana dispensaries and on-site lounges opening soon, law enforcement must be armed with updated laws and sufficiently trained to administer roadside oral fluid tests to protect the public. Without these three measures, New York will be just as susceptible to more traffic fatalities as other states that legalized marijuana.