The $1.2 trillion infrastructure spending bill, passed by the House of Representatives on November 6, is a key part of President Joe Biden’s legislative agenda. It focuses substantially on funding for roads and bridges. But it also describes how the federal and state governments will increase targeting of drug-impaired driving—by funding more police surveillance of people who use drugs.
The bill identifies “emerging topics,” including “impaired driving as a result of drug, alcohol or polysubstance consumption.” Many of the drug-impaired driving provisions described in the bill already receive federal funding, but this indicates that as more states legalize marijuana for adult use, the government is ramping up its oversight to match.
With alcohol, the national standard is at least 0.08 percent blood alcohol concentration considered unsafe to drive. States that have legalized cannabis have a hard time enforcing laws against driving while high, because there is no national or reliable standard that defines cannabis-impaired driving.
In addition to funding increased training for police officers to perform blood tests, the bill emphasizes the use of saliva tests to charge drivers with being under the influence of cannabis.
The problem with blood tests for cannabis is that one of its main intoxicating components, delta-9-THC, can remain in the human body for days or even weeks after consumption. Someone who smoked regularly for a while and then stopped can easily still test detectable for cannabis a month later, even if they’ve consumed zero cannabis in that time. Obviously, they’re not still intoxicated from a month ago. Alcohol, by contrast, is fully processed by the body within hours.
Saliva tests are a more recent innovation, and would serve as the cannabis equivalent of a breathalyzer. But it’s not yet clear how accurate those tests are, either.
A 2020 pilot study found that nearly one-quarter of “positive” test results over a one-year period were inaccurate. And they still don’t prove someone’s impaired—just that they have some unspecified level of the drug in their system.
It gives police and others a lot of power to “suspect” someone of being high based on factors like race.
Knowing that current drug-testing technology is insufficient, the bill will also give money to help hire criminal justice workers—including police officers, judges, prosecutors and probation officers—and train them as “drug recognition experts” (DRE).
DRE are certified professionals who perform a physical examination on someone they suspect to be currently under the influence. States like New York and New Jersey, both of which legalized adult-use cannabis this year, now require DRE for certain situations, like when an employer suspects an employee is impaired on the job. Advocates have slammed the practice, calling it an “unproven science” that’s entirely subjective. It’s easy to see why: It gives police and other DRE a lot of power to “suspect” someone of being high based on factors like race.
The bill also funds software to manage people charged with impaired driving, and additional technology to “monitor” them. The specifics aren’t entirely clear, but could involve “risk prediction” software algorithms, electronic ankle monitors or facial recognition tools. There’s a very real risk that by juicing more federal dollars into them, we are giving police and courts additional inaccurate tools with which they will further abuse their power.
The bill also mentions providing money for “driving while intoxicated courts.” These are a form of drug court, where people charged with DWI can avoid jail time by receiving substance use disorder treatment. Drug courts can be very harmful—some mandate that participants receive “treatment” by attending 12-step meetings, or funnel them into fraudulent programs.
It’s unclear what impact any of this may have on public safety, traffic deaths or arrest rates.
For decades, authorized marijuana research has been heavily restricted. Because marijuana is illegal under federal law, the Drug Enforcement Administration (DEA) maintains authority over who can research marijuana, and where the samples come from.
The infrastructure bill requires that within two years, the Department of Transportation (DOT) must make recommendations to Congress on how researchers studying impaired driving should access legal marijuana samples. The DOT will also recommend how to establish “a national clearinghouse to collect and distribute samples and strains of marijuana for scientific research.” This resource would be available to researchers even in states where marijuana is still illegal.
For years, scientists have criticized—and even sued—the DEA over the restrictions it has imposed. The only marijuana legally available for research purposes currently comes out of the University of Mississippi, and is considered by some researchers to be very low-quality. So, after two years, this bill should make it easier for researchers to get their hands on good-quality, legal marijuana products—although for the very narrow purpose of reasearching impaired driving.
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