In a nineteen-day crackdown between August 16 and September 3, law enforcement agencies across the state reported a total of 1,321 impaired-driving arrests to the Colorado Department of Transportation. During that time, CDOT estimates, there were ten alcohol-related driving fatalities, two of them in Denver.
One of those was Jenny Kush, killed when a car going the wrong way in an I-25 HOV lane crashed into the vehicle in which Kush was a passenger. Arrested at the scene and charged with vehicular homicide, Rebecca Maez told police she'd downed an entire bottle of vodka and been kicked out of a bar before she got behind the wheel of a borrowed car ("The Harshest Hit," September 19).
That a confessed drunk driver ended the life of cannabis advocate Kush seemed a brutally poignant illustration of the dangers of alcohol compared to those of marijuana. Lawmakers pushing for harsher measures to punish drivers who've consumed cannabis assert that the number of marijuana-connected accidents is skyrocketing — but do the numbers back up those claims?
Recent laws passed to punish marijuana-consuming drivers in this state were predicated on a "highway Armageddon" that just doesn't exist, says former state senator Bob Hagedorn, who sponsored legislation creating the Persistent Drunk Driving Act in 1999, and politicians who continue to exaggerate the dangers of marijuana run the risk of killing any sensible debate on the issue.
"We have the opportunity to address this potentially serious issue calmly and head-on," Hagedorn wrote last month in an essay published in the Denver Post. "But for efforts to be effective, credible and realistic, they must be based on evidence and real science. Using scare tactics will serve no purpose beyond hindering sensible and wise thought."
Is it possible to get hard evidence? Westword decided to look at the Labor Day-related crackdown to determine which arrests involved drivers suspected to be impaired by alcohol and which by marijuana. But coming up with real science wasn't easy.
Emily Wilfong, spokeswoman for CDOT, says that dividing the 1,321 impaired-driving arrests reported during that period into those involving alcohol and those involving drugs is more complicated than studying a central database.
For starters, there isn't a central database.
CDOT only collects data from law enforcement agencies that receive department funding for "enforcement activities" like seat-belt campaigns and DUI-awareness weekends. If a department didn't receive CDOT money for the Labor Day campaign — the Boulder Police Department, for instance — it didn't report its arrest data.
And when a law enforcement agency does report data to CDOT, there is no set format; it can supply as much or as little detail as it chooses. For example, some simply report the total number of DUI-related arrests for both drugs and alcohol, while others break the total down into DUI-alcohol and DUI-drug arrests. But even then, few report whether the DUID arrests were for marijuana or something like prescription drugs or meth.
To get such a breakdown, we contacted every agency in the metro area that had reported impaired-driving arrests for that Labor Day period to CDOT. Although it was impossible to get specifics from all of them, the big five — the cities of Denver and Aurora, and the counties of Jefferson, Arapahoe and Adams — were able to break down how many arrests were marijuana-related and how many were due to booze.
In Aurora, out of 141 DUI-related arrests, eight were suspected marijuana DUIDs; seven other DUID charges were for people suspected of driving under the influence of prescription drugs, cocaine and inhalants. The other 126 arrests were for alcohol.
In Adams County, only one of 38 DUI arrests during the period was marijuana-related, according to Sergeant Paul Gregory of the Adams County Sheriff's Department.
In Jefferson County, one out of six total DUI arrests was related to marijuana. Arapahoe County had seventeen total DUI arrests; two were marijuana-related.
And in Denver, where Kush was killed over Labor Day weekend by an alleged drunk driver, there were a total of 157 DUIs — only one of which was marijuana-related. That case, which is still pending, didn't involve anything as major as vehicular homicide; the driver was stopped for "turning improperly."
But those numbers don't tell the whole story, either.
Who an officer decides to test, and how, varies from department to department and is often up to an officer's discretion. If a cop stops a swerving driver and doesn't smell booze but does smell pot, he may push for a blood test. But while it isn't uncommon for police to suspect both marijuana and alcohol in a case, they may just charge a driver with a DUI for alcohol because it is easier and cheaper to prove. That's often the situation in Denver, according to Mary Dulacki, records coordinator for the Denver Police Department. And Wilfong confirms that's frequently the case with other departments reporting to CDOT.
"The lieutenant says that to do a drug test on blood is $200 or something like that, or they could do a DUI alcohol test for like five bucks," says one law enforcement official. "Most of the time, if it is a combination of the two, they'll get charged with the alcohol. There's no need to do the [marijuana] test at that point because you can't charge them with the same crime twice."
Even with fatal crashes, if alcohol clearly played a role, the driver may not be tested for drugs — which makes it difficult to get solid stats.
According to the national Institute on Alcohol Abuse and Alcoholism, Hagedorn notes, a drunken driver is eleven times more likely to be involved in a fatal auto accident compared to a sober driver, while a February 2012 article from the British Medical Journal says that a stoned driver is only twice as likely to be involved in such an accident as a non-impaired driver. Research also indicates that drivers who are high from using marijuana, and only marijuana, have an ability to compensate for their altered state — usually by driving more slowly, Hagedorn adds.
In October 2012, the University of Oregon, Montana State University and the University of Colorado released the results of another study, conducted when seventeen states had legalized medical cannabis. Within the first full year of legal MMJ, the study reported, traffic fatalities in those states had decreased by as much as 11 percent. Researchers pointed to a number of reasons for that, including this one: Though MMJ is legal, pot use keeps people in private settings because consuming cannabis in public is still illegal.
Last month, Ernie Martinez, a Denver police lieutenant and president of the Colorado Drug Investigators Association, was interviewed by former drug czar Bill Bennett on his radio program and touted a "114 percent increase" in driving fatalities involving marijuana in Colorado between 2006 and 2012. But later in that same interview, he admitted that specifics are hard to come by. "The challenge is having the data-collection points," Martinez told Bennett. "We've pushed the data-collection issue simply because we do need it and everyone wants it." (Martinez did not respond to Westword's requests for an interview.)
According to CDOT, the number of cannabis-consuming drivers involved in fatal crashes increased from 27 out of 535 fatal accidents in 2006 to 35 out of 472 accidents in 2012. But marijuana could have been involved in more accidents and just not tested.
Or marijuana could have been involved in fewer fatalities. The drivers who were actually tested for drugs after a fatal crash weren't tested for active THC — which might not accurately predict impairment, but at least would show which drivers had used cannabis within a few hours of the crash. Instead, the drivers were tested for THC metabolites that can hang around for days, even weeks, after the buzz has worn off.
When the driver dies in an accident, coroners will often determine the cause of death to be whatever is the most likely culprit, without doing additional blood tests. And even when there is followup, Wilfong says, the test is likely to be for residual THC metabolites, which does not determine impairment.
In fact, the only time a driver is tested for active THC now is when cannabis is suspected as the main reason for impairment. And that just started last year, after legislation was passed in 2012 that limits active THC in the blood to five nanograms per milliliter — although there's little scientific data to back that level as a conclusive indicator of impairment.
"The thing that concerns me is the fact that THC can be active and inert," Hagedorn says. "The THC which lingers in your body for thirty days or longer is inert, and it doesn't do anything. So you have an accident and they test the blood of the person and they'll find that they have THC, but they don't know whether or not it was active or inert. All they can say is that they tested positive for THC. Well, that doesn't necessarily mean, as we know, that they were stoned at the time."
Hagedorn thinks that information should be as detailed as possible. It's possible to use cannabis responsibly and then drive — much as someone who consumes a single drink at dinner may be fine to drive home. But studies show that impairment can last anywhere from ninety minutes to five hours or longer with edibles, and he thinks that should be taken into consideration. He also points to studies showing that when moderate amounts of THC and moderate amounts of alcohol are combined, they have a synergistic effect that is more than the sum of the two parts. For example, someone who blows a .05 percent on a breathalyzer for booze will act like he's at .14 percent after smoking a little bit of herb along with his cocktails.
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That's a big concern for Hagedorn, and he thinks there should be a major educational campaign. But that campaign can't come from the state or the industry, he says: "There is a concern that, after seven decades, who is going to believe the federal government and, by association, the State of Colorado and the City and County of Denver, about the dangers of marijuana? I can see them putting out brochures from the State of Colorado about all of the dangers to all of the recreational marijuana businesses and watching them collect dust. People just aren't going to buy it. It is the boy who cried wolf."
That's why Hagedorn is creating an educational nonprofit dubbed Safer Drivers, Safer Streets: to supply people with research-based information. "You have to be honest with people and talk about the research, talk about the dangers and how severe they really are," he says. "Being honest with people, being frank and not getting into scare tactics and whatnot — to me, at least — is the most credible way to present this information. We have something now that we can actually try and get ahead of before it becomes a problem."
The state, too, recognizes the need for more data. In fact, CDOT is currently compiling research with the Colorado Department of Human Services on marijuana driving trends that the department suspects might be increasing as cannabis becomes more available. "With marijuana being legalized for recreational use, we're certainly looking at ways to get as much information as possible about marijuana-impaired driving," Wilfong says.
Colorado already has plenty information on the dangers of alcohol-impaired driving. And the evidence will be laid out in court on December 12, when Rebecca Maez goes on trial for the death of Jenny Kush.