Not something you hear often. First, the legal backstory, from Chief Judge Frances M Tydingco-Gatewood (D. Guam) in Davis v. Guam:
This is a civil rights action that deals with the topic of self-determination of the political status of the island and who should have the right to vote on a referendum concerning such. Plaintiff—a white, non-Chamorro, male and resident of Guam—was prohibited from registering to vote on the referendum. This court determined the prohibition was a violation of the Fifteenth Amendment’s prohibition of racial discrimination in voting and the Fourteenth Amendment’s Equal Protection Clause. Because there was a clear violation of the Fifteenth and Fourteenth Amendments, the court found it unnecessary to address the statutory arguments presented by Plaintiff.
After plaintiff’s substantive win (which is on appeal), plaintiff sought attorney fees under statutes that authorize such fee awards to prevailing voting rights plaintiffs and to prevailing § 1983 civil rights plaintiffs more broadly; here was the judge’s summary:
This case has not been an easy one for counsel to represent. Due to the highly political nature of the case, it was almost impossible for Plaintiff to find local counsel. This was demonstrated by Plaintiff when he and Adams contacted a total of 37 attorneys, all of whom declined representation for various reasons—some defended the plebiscite; others feared for their safety and property if they took on the case; and many were afraid that public officials and judges would view them less favorable if they were associated in preventing the plebiscite. This court itself witnessed firsthand the emotions running high in its courtroom and outside of the courthouse as members of the public demonstrated their constitutionally protected right to protest. For local counsel Mun Su Park to take on the case when no one else would is commendable.
With a few exceptions as noted above, the court finds that the requested fees are reasonable and certainly, there is no “padding” of billable hours by counsel. Counsel themselves did not bill for all the work performed in this case. For example, J. Christian Adams of the Election Law Center did not bill for at least 73 hours of work. In addition, Adams billed in real time, instead of billing by every tenth or fifteenth of the hour, which is rare for this court to see. Michael E. Rosman and his team from the Center for Individual Rights did not bill for approximately 210 hours. Douglas R. Cox and his team from the law firm of Gibson, Dunn and Crutcher billed for only $ 215,489.75, a more than 50% discount from the full billable amount of $ 468,368.23. Park himself billed for a little over two weeks’ worth of work for a case that lasted for over five years. Reasonable billing judgments were exercised by all of Plaintiff’s counsel. The court also notes that counsel could have asked for a lodestar upward adjustment but declined to do so.
In sum, in this sensitive and highly political-in-nature case, Plaintiff’s billing judgment—both for attorneys’ fees and costs—demonstrates an extra ordinary dedication to containment of cost and renews this court’s faith in conscientious billing practices.
Disclosure: I’ve known Michael Rosman for about 20 years, and I’m an occasional advisor to the Center for Individual Rights.
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So far, I’ve said virtually nothing about speaker mens rea, though that’s normally quite important in libel damages actions (and in criminal libel prosecutions). This is because the Court’s mens rea decisions aimed to solve a problem that is largely absent in hybrid injunction cases: the “chilling” of speakers caused by the risk of liability where the facts are uncertain.
Say that I’m contemplating writing about Bob Builder, because I think he has cut corners in making his building earthquake-safe. I think this is true, but I can’t be completely certain, and, even if I’m certain of the facts, I can’t be certain that the jury will agree. I may therefore be deterred from making my allegations, because I’m afraid of a massive damages verdict or even of a criminal verdict in those states that have criminal libel statutes. Mens rea requirements (sometimes actual malice, sometimes negligence) are meant to diminish this chilling effect of civil and criminal liability.
But hybrid anti-libel injunctions don’t create this hazard. First, I’m unlikely to be deterred from speaking up front by the mere risk that my speech will lead to an injunction; the injunction itself won’t send me to jail or cost me money. To be sure, few people are enthusiastic about being enjoined, and fighting an injunction does cost money. But that prospect is not as likely to be chilling as the prospect of jail or ruinous damages.
Second, once the court finds that my allegations were false and defamatory, and issues the injunction, I will indeed face jail or fines if I keep making the allegations. But at that point, the court will already have found that the statements were false. I would know they were false, or at least very likely false. The injunction itself would thus come pretty close to assuring that that I have “actual malice” (in the sense of knowledge or recklessness as to falsehood). More importantly, the injunction will only chill statements that have indeed been found to be false.[1]
Indeed, recall that liability based on “actual malice” is tolerated even though it has some chilling effect on true speech (since a speaker might fear that the jury will misjudge both the truth of the statement and the speaker’s mental state).[2] The much smaller potential chilling effect on true speech from injunctions should be tolerable too.
It might thus be constitutional to allow specific anti-libel injunctions based on a finding of falsehood, even without a showing of culpable mental state—just as some have suggested that a declaratory judgment should be allowable in such cases. And the principles of New York Times Co. v. Sullivan and Gertz v. Robert Welch, Inc. shouldn’t necessarily require a showing of mens rea as to falsehood in any contempt proceeding for violating the injunction.
But a showing of a culpable mental state might in any event be required by criminal contempt law principles, at least if I’m right that (as Part V.A argues) any anti-libel injunction must by its terms ban only libelous statements. To be guilty of criminal contempt for violating a court order, the defendant generally has to have acted “with knowledge that the act was in violation of the court order, as distinguished from an accidental, inadvertent or negligent violation of an order.” If the injunction expressly bars only libelous statements, which is to say only false, defamatory, and unprivileged statements, then a defendant shouldn’t be criminally punished for violating the injunction unless he knows the statements were false.
And that showing should usually be easy to make, given that the injunction places the speaker on notice that the judge or jury has found the speech to be false. In principle, the speaker might be able to evade punishment by persuading the criminal contempt jury that he was sincerely certain the statement was true, even despite that earlier finding. But in practice that is a claim that many juries will be unlikely to believe.
[1] It’s possible, of course, that, despite the court’s finding that the statement was false, I would still lack knowledge or recklessness as to the falsehood—whether because I delusionally believe that the statement is true (or almost certainly true) even though the court rightly found that it was false, or because I know that it’s true, perhaps from personal experience, and that the court erred. But from the perspective of the legal system, and its desire to minimize the chilling effect on true statements while still imposing liability on false statements, it should be adequate to treat the judicial finding of falsehood as a substitute for a finding of actual malice.
[2] This continuing chilling effect is one reason why Justices Black, Douglas, and Goldberg would have imposed a rule of absolute immunity in public concern libel cases. See New York Times Co. v. Sullivan, 376 U.S. 254, 293, 295 (1964) (Black, J., concurring in the judgment); id. at 300 (Goldberg, J., concurring in the judgment). But the majority was willing to tolerate this danger.
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Is allowing for the construction of more housing near transit stops racist? Most people would say no. Not the Los Angeles-based AIDS Healthcare Foundation (AHF), however.
Rather the organization—founded in the 1980s to prevent the spread of HIV and AIDS—had decided to dip their toe into the housing policy debate in California, arguing in a recent mailer that allowing for more housing construction would be tantamount to the racist urban renewal programs of the mid-century.
“Urban renewal means negro removal,” reads a mailer from the AHF, which also features an image of James Baldwin— a 1960s-era civil rights advocate and novelist. TV ads blaring the same message also aired this week.
The target of the mailer is SB 50, a bill that override local zoning restrictions near transit stops and in wealthy neighborhoods, allowing for taller, denser apartment buildings to be built where now only single-family homes are allowed.
Doing so, say advocates, will boost the supply of housing, helping to make the Golden State’s incredibly pricey cities a little more affordable and, by extension, a little more inclusive.
Not so says the AHF, which argues that deregulating housing construction along the lines of SB 50 will benefit the rich at the expense of poorer, minority communities.
“SB 50 is a handout to greedy developers,” reads the AHF mailer, which goes on to say that the bill would these developers “free rein to displace working class communities of color.”
The argument that loosening California’s restrictions on new housing construction will result in gentrification of minority neighborhoods as “luxury condos” replace older, more affordable housing stock, is hardly unique to AHF.
Indeed, this criticism has dogged most any attempt to peel back zoning restrictions legislatively, and is often employed to stop individual projects working their way through local planning processes as well.
AHF’s mailer is unique, however, both in how bluntly it makes this case against SB 50, and in how many untruths it spreads about the bill.
For example, the AHF’s mailer says that “SB 50 bans cities from rejecting big residential luxury developments containing only a small number of affordable units.”
This is a reference to many cities’ “inclusionary zoning” policies which require that private developers designate a certain percentage of new units in a projects as “affordable”—meaning they are rented out at below market rates to people earning less than an area’s median income.
Regardless of the wisdom of these inclusionary zoning requirements (which some research suggests reduces the supply of new housing), this claim is simply untrue.
SB 50 requires that any housing project that benefits from its upzoning provisions, and is larger than 20 units, include somewhere between 15 to 25 percent affordable units. And contrary to AHF’s claims, the law includes an explicit provision saying that local governments could impose higher affordability requirements should they wish.
Reads an analysis of the bill prepared by state Senate committee staff, “if the local government has adopted an inclusionary housing ordinance and that ordinance requires that a new development include levels of affordability in excess of what is required in [SB 50], the requirements in that ordinance shall apply.”
The rest of the mailer is more hyperbole than outright falsehoods, calling SB 50 a “trickle-down housing bill” that would “accelerate the consequences of gentrification” and “build luxury towers without adequate affordable housing.”
That argument is deeply ironic coming from AFH, given the group’s past support for a policy that is known to spur gentrification: rent control.
Back in 2018, AFH spent some $21 million advocating for Prop. 10, a ballot initiative that would have repealed state-level limitations on the ability of California’s local governments to impose rent control.
A Stanford University study from the same year found an expansion of rent control in San Francisco during the ’90s actually sped up gentrification by encouraging landlords to take rent-controlled housing units off the market and convert them into pricier condominiums that could be sold at market price.
Were AFH truly as concerned about gentrification as their noxious mailer suggests, they might want to reconsider their past rent control advocacy as well. Instead the group had decided to cynically deploy identity politics in an effort to spread myths about what is, at the end of the day, a marginal loosening of California’s ridiculously restrictive zoning laws.
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Making teen vaping a federal crime. In a sign of just how truly topsy-turvy 2019 is, the backer of a bill to make it illegal for anyone under age 21 to buy tobacco products is not only a Republican but one hailing from Kentucky, where tobacco has long been a top crop. Senate Majority Leader Mitch McConnell said yesterday that his “T21” proposal would cover all tobacco products and e-cigarettes.
“For some time, I’ve been hearing from the parents who are seeing an unprecedented spike in vaping among their teenage children,” he said. “In addition, we all know people who started smoking at a young age and who struggled to quit as adults. Unfortunately it’s reaching epidemic levels around the country.”
Actually, just the opposite is true about tobacco. In 2016, cigarette smoking among U.S. adults stood at about 15.5 percent, down from 20.9 percent a decade or so earlier and around 42 percent in the 1960s.
Meanwhile, vaping has proven useful to helping people quit more harmful cigarettes. And its popularity among teens may not be ideal, but if it prevents them from taking up actual smoking, that’s a net win. Unless, of course, you’re a tobacco farmer or politician from a state representing them…
Cigarette companies, which also own vaping products and cannabis lines now, will be just fine without the new recruits; it’s people like McConnell’s constituents who lose most.
Lest there’s any doubt how little “Big Tobacco” cares about a raised cigarette smoking age:
Tobacco giants Altria, British American Tobacco and e-cigarette maker Juul have all thrown their weight behind raising the minimum buying age. Altria CEO Howard Willard and Juul CEO Kevin Burns have both urged legislation in recent op-eds. Altria started running “T21” ads earlier this month in The Washington Post, The Wall Street Journal and other newspapers.
It’s not going to affect their bottom lines, and supporting a raised smoking age makes them look good. Win-win.
And some winning to go around for the carceral and regulatory state, too: this invites all sorts of new policing of black market cigarettes, busts of teens vaping, undercover inspections at local shops … It’s a boon for authorities, elites, and control of all sort. Just not for entrepreneurs, consumer choice, individual rights, and all those pesky little things.
FREE MINDS
“The strength of the internet for fostering free expression lies in its decentralized nature, which can support a diversity of platforms.” Emma Llansó, director of the Center for Democracy & Technology’s Free Expression Project, has an op-ed in Wired this week looking at the dangerous trend toward centralized tech regulation “and opaque censorship of the global internet,” often done under the guise of stopping terrorist and extremist content. Read the whole thing here.
FREE MARKETS
Soylent made a snack bar. “Soylent’s American expansion has, for the most part, been surprisingly conventional,” notesThe New York Times of the product once touted as an optimal meal replacement drink for enterprising biohackers who couldn’t be bothered with solid food.
Once a niche product only available on the web, it now sells at 4,400 Walmarts around the country, where it sits near familiar cold drinks, like milk. (Soylent sells unusually well in Grand Forks, N.D., the company said, offering no theory as to why that might be.) Soylent is now available in ready-to-drink (RTD) form on Amazon, in airports and carwash waiting rooms, and in thousands of other retail locations, supplied by major beverage distributors.
QUICK HITS
There’s been a “fundamental shift in the landscape of abortion in America,” with groups in several states bringing forward and passing near total abortion bans in anticipation of them making it to the Supreme Court. Michael Gonidakis, president of Ohio Right to Life in Columbus, said “Now is our time. This is the best court we’ve had in my lifetime, in my parents’ lifetime.”
A new study by the University of Minnesota Law School finds that displacement by decline is a far more prevalent challenge than displacement by gentrification.
“Believers in the pro-Trump QAnon conspiracy theory approached the long-awaited publication” of Robert Mueller’s investigative report with anticipation that it would reveal the secret arrest of Hillary Clinton and crimes committed by her and other prominent Democrats. It did not.
Reason on Mueller report. The Mueller report continues to be the big story today (obviously). You can find a searchable copy of it here and see what Reason folks are saying about it below:
President Trump signed the FIRST STEP Act, a bipartisan criminal justice reform bill, into law last December. For the average observer, Trump’s support for the criminal justice overhaul was uncharacteristic. After all, he did appoint drug warrior Jeff Sessions to serve as his first attorney general.
So how did he go from surrounding himself with tough-on-crime politicians to signing a major victory for reform advocates? According to Kentucky Gov. Matt Bevin (R), it’s all due to the power of persistence.
On Wednesday, Bevin spoke alongside newly elected Tennessee Gov. Bill Lee (R) at a criminal justice reform event in Nashville, Tennessee. The event, which was hosted by Right on Crime, covered the experimental reforms being carried out in each state. At one point in the conversation, the governors were asked about the executive branch’s role in reform.
Bevin spoke about the White House meetings that eventually led to the signing of the FIRST STEP Act, during which Trump and Sessions were skeptical of reforms.
“But there was one person in that room that was passionate,” he said. That person was Jared Kushner, the president’s own son-in-law.
Not only is Kushner quite passionate about criminal justice reform, but he made it a priority to bring before the president. Kushner’s relationship to the issue is a personal one as his father previously served time in a federal prison for tax evasion and illegal campaign contributions. Because of his own experiences, Kushner has since pushed for reforms such as improvingrehabilitation behind bars and reentry programs.
Bevin said that it was Kushner’s excitement on the issue that helped combat Trump’s skepticism.
Prior to Bevin’s answer, Lee, who himself has worked with criminal justice ministries, recalled that his own passions and newfound platform on the campaign trail helped reform become a major focus in the gubernatorial race.
“If you talk about something and you elevate the conversation from a platform that has influence, then it impacts society,” Lee said.
Lee also said that such elevation was beneficial to state governments as it helped policy ideas to cross state lines.
Criminal justice reform is one of the few political fights that enjoys bipartisan support. It is also one of the few topics where the human toll of bad policy is front-and-center. Despite the progress made so far, there are just enough people in positions of power to hinder progress. At one point of the evening, Bevin mentioned that he received some of the greatest pushback from his own Republican colleagues.
While disagreements and a slow-moving government can discourage activists, the creation of a fairer criminal justice system is not impossible. After all, infectious zeal caused some of the toughest critics in the White House to take a second look at national reform.
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Pete Buttigieg is running for president. For libertarians, the mayor of South Bend, Indiana, appears to be a welcome addition to the far-left-leaning Democratic primary. After all, his views on foreign intervention and free college are small consolations in a field that is largely set on growing the scope of government.
Some of Buttigieg’s other positions, however, put him at odds with libertarian voters.
Court Packing
Several Democratic candidates have expressed a desire to expand the Supreme Court in hopes of weakening the influence of conservative justices.
In a speech at the New Hampshire Institute of Politics, Buttigieg suggested expanding the court to 15 justices. This new court would be composed of five conservative justices, five liberal justices, and five rotating appellate justices, each unanimously agreed upon by their peers.
Though this proposal sounds good to those who despise simple majority decisions, it runs into a number of issues.
Besides the fact that Democratic candidates are advocating to expand the Supreme Court now that a Republican president has the power to appoint justices, Bloomberg columnist Stephen L. Carter observes that the proposal would seriously disrupt the appointments themselves. If a sitting president already makes an appointment and a second seat becomes vacant, Americans would then potentially have to wait several election cycles for the seat to be filled.
The proposal also gives justices more power by choosing who gets appointed. This both goes against an important check on the judicial branch, and is likely unconstitutional, as presidents are the only people allowed to appoint justices.
Chelsea Manning
Whistleblower Chelsea Manning was previously sentenced to 35 years in prison after leaking sensitive documents about the Iraq and Afghanistan wars to Julian Assange’s WikiLeaks. Her sentence was commuted by President Obama. She is currently sitting in jail after refusing to testify against WikiLeaks before a federal grand jury. In addition to criticizing Manning, the Washington establishment is also celebrating Assange’s recent arrest in London.
Buttigieg is one of the politicians who is currently not in Manning’s corner.
Speaking with CBS News Radio, Buttigieg criticized leakers like Manning and Edward Snowden.
“I certainly agree that we’ve learned things about abuses and that one way or another that needed to come out,” he said. “But in my view, the way for that to come out is through Congressional oversight, not through a breach of classified information.”
Mandatory National Service
Buttigieg has previously invoked his military service to criticize endless war. He’s also used his experiences to speak positively about national service. Though he hasn’t presented any official positions, his sentiments on the latter indicate that he would be comfortable with mandatory national service.
Earlier in the month, Buttigieg told MSNBC’s Rachel Maddow that national service would be part of his campaign. While his proposal is otherwise vague, Buttigieg explained that service could be an answer to bridging social divides. Maddow responded that even the Pentagon is against conscription for the sake of morale and quality of recruits.
Beyond the Pentagon’s concerns, Reason‘s Nick Gillespie cites Milton Friedman to argue the libertarian position on forced military service. To sum, it is better to have an all-volunteer army than “an army of slaves.”
Such a casual proposal carries great repercussions for the power of choice and expression. Ideally, if American citizens were against an intervention, they would simply not sign up for the service.
Though Buttigieg has yet to truly commit to a major campaign proposal, his thoughts should not be taken lightly. If libertarians are looking for a mainstream candidate who will not join pointless wars, then Buttigieg aligns with their views. If they’re looking for a firm commitment to shrinking the size and scope of government, they may not find much common ground in this candidate.
Bonus Link: Ira Stoll calls Buttigieg “the most interesting Democrat running for president.”
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Kali Su Schram did not cause the crash that killed Ralph Martin. She nevertheless received a six-month jail sentence, followed by two years of probation, and had to pay more than $7,000 in fees and restitution as a result of the accident, which happened when Martin, a 64-year-old bicyclist, rode into Schram’s path as she was driving on Seaway Drive in Muskegon, Michigan, on the morning of November 26, 2015.
Schram, who was 20 when she was sentenced in 2017, had tetrahydrocannabinol (THC), marijuana’s main psychoactive ingredient, in her blood at the time of the collision. There was no evidence that Schram was impaired by marijuana, let alone that it contributed to the accident. Nor was she at fault, since she had the right of way when Martin suddenly appeared in front of her car at an intersection. “If you read the police report,” Schram’s lawyer told the Muskegon Chronicle, “she could not have done anything to avoid this particular accident.”
None of that mattered, because in Michigan it is illegal to drive with “any amount” of a Schedule I controlled substance in your body. According to the Michigan Supreme Court, an inactive metabolite of marijuana does not count as a Schedule I drug, but THC does, even at levels too low to impair driving ability. In a separate case, the court said Michigan’s “zero tolerance” rule does not apply to patients who are authorized by the state to use marijuana for medical purposes. But it does apply to other cannabis consumers, even now that recreational use is legal in Michigan, unless legislators change the law or courts read another exception into it.
Unlike Michigan’s legalization initiative, which voters approved in 2018, Washington’s, which passed in 2012, specifically addressed marijuana-impaired driving. The initiative established a “per se” rule that makes a driver guilty of driving under the influence (DUI) when his THC blood level meets or exceeds five nanograms per milliliter. But that rule also has created problems, since regular cannabis consumers may exceed the threshold even when they are not impaired.
One of the first drivers charged under Washington’s new law was Ronnie Payton, a 65-year-old Vietnam veteran who used marijuana to treat his glaucoma. On Christmas Day in 2012, Payton was arrested for DUI after a minor car accident in Renton. A blood test found his THC level exceeded the legal threshold by 3.6 nanograms, even though the last time he had smoked pot was about 12 hours before the accident. He would have been automatically convicted if his lawyer had not managed to stop prosecutors from using the blood test during his trial.
THC blood levels do not correspond directly to degrees of impairment.
If setting the THC limit for driving at zero or at five nanograms per milliliter can produce perverse results like these, what should the cutoff be? It’s a trick question. As Staci Hoff, research director at the Washington Traffic Safety Commission, observed in a 2017 interview with a Seattle TV station, “More and more research is coming out debunking this mythical link between THC level in the blood and level of impairment.” A 2016 study sponsored by the AAA Foundation for Traffic Safety, for instance, concluded that “a quantitative threshold for per se laws” based on THC in the blood “cannot be scientifically supported.” Or as the National Highway Traffic Safety Administration (NHTSA) put it in a 2017 report to Congress, the level of THC in a driver’s blood “does not appear to be an accurate and reliable predictor of impairment.”
THC, unlike alcohol, is fat-soluble rather than water-soluble, so there is no clear or consistent relationship between THC in the blood and THC in the brain, which means THC blood levels do not correspond directly to degrees of impairment. Complicating the situation further, individuals vary widely in the way they respond to a given dose of THC, especially when you compare occasional marijuana users to regular consumers, who may develop tolerance to the drug’s effects or learn to compensate for them.
Patients who use marijuana as a medicine and other daily cannabis consumers can test positive for THC days after their last dose, and they may be competent drivers at THC levels far above Washington’s cutoff, while naïve or occasional users may be a menace even when they fall below it. Any definition of stoned driving that is based on THC blood levels will implicate innocent people and give a pass to drivers who are seriously impaired. Zero-tolerance laws, which a dozen states have, avoid the latter problem, but only at the cost of criminalizing cannabis consumers who drive, regardless of whether they are impaired.
That reality creates a quandary for states that decide to legalize marijuana. Experiments show cannabis impairs performance on simulators and driving courses, although its effects are not nearly as dramatic as alcohol’s. Marijuana’s impact on traffic fatalities in the real world is harder to measure, and it is not clear that legalization magnifies the problem. But it makes sense to worry about the possibility, since legal access tends to increase cannabis consumption, which could mean more stoned drivers on the road.
The challenge is figuring out who they are. Since toxicological tests cannot prove impairment by marijuana, additional evidence is needed. In the United States, Canada, and a few other countries, that evidence is often collected by “drug recognition experts” (DREs)—police officers who are trained to administer a 12-step protocol that includes an interview, vital sign measurements, eye examinations, and sobriety tests. But while some of these measures seem to be good indicators of marijuana use, they do not necessarily prove someone is too intoxicated to drive.
Critics of the DRE program, which was developed by the Los Angeles Police Department and is managed by the International Association of Chiefs of Police (IACP), say it has never been properly validated. They argue that a DRE’s interpretation of test results can be skewed by his expectations and that his ultimate assessment is largely subjective. Supporters of the program argue that “nothing in or about the DRE protocol is new or novel,” as the IACP puts it, and that it is the best currently available alternative to per se laws that unjustly and irrationally treat sober drivers as if they were stoned.
‘It Basically Slows Everything’
Marilyn Huestis
Laboratory experiments show marijuana affects cognitive abilities that are related to driving. “The most important one is executive function,” says Marilyn Huestis, a forensic toxicologist who spent 23 years at the National Institute on Drug Abuse, where she studied the effects of cannabis consumption. Executive function refers to “the set of higher-order processes (such as inhibitory control, working memory, and attentional flexibility) that govern goal-directed action and adaptive responses to novel, complex, or ambiguous situations,” as the textbook Comprehensive Developmental Neuroscienceputs it. “All aspects of executive function are affected by cannabis,” Huestis says. “It basically slows everything.”
In experimental studies that look at performance on driving simulators or road tests, the most common cannabis effects include increased reaction time, greater weaving within the lane, and poorer performance on tasks that require divided attention. Subjects under the influence of marijuana, unlike those under the influence of alcohol, tend to be aware of their impairment and try to compensate for it by driving more slowly and cautiously. There is some evidence that marijuana and alcohol together impair driving ability more than either alone, although not all researchers agree on that point.
National Advanced Driving Simulator
Alcohol has a much bigger impact on driving ability than marijuana does, and the practical significance of the cannabis effects measured in experiments is a matter of debate. “There is a real question of how big these impairments are,” says Michael White, a psychologist at the University of Adelaide in Australia, where it is illegal to drive with any detectable amount of THC in your blood. White found that marijuana’s effect on a driver’s ability to maintain lateral position within his lane, for example, is similar to the decline seen with 10 years of aging. He also notes that researchers found “it was very difficult to detect any impairment at all in regular users,” who probably account for most of the THC-positive drivers on the road at any given time.
“People under the influence of marijuana tend to drive differently,” says Paul Armentano, deputy director of the National Organization for the Reform of Marijuana Laws (NORML). “The practical question is what correlation, if any, exists between these changes in behavior and increased accident risk.”
Alcohol has a much bigger impact on driving ability than marijuana does.
That question has proven difficult to answer. Epidemiological studies that try to measure the crash risk associated with marijuana use are plagued by methodological problems, including inappropriate controls, failure to adequately consider confounding variables, and improper classification of sober drivers as stoned (and vice versa). “The main challenge is that we have noisy and imprecise methods, which makes it hard to pin down small risk increases,” says Norwegian economist Ole Rogeberg, who has studied marijuana’s impact on road safety.
Ole Rogeberg
Twometa-analyses published in 2012 found that cannabis consumption roughly doubles the risk of a crash, which is the estimate that Huestis favors. To put that number in perspective, a 2016 study sponsored by NHTSA found that a blood alcohol concentration (BAC) of 0.08 percent, the current DUI threshold in almost every state, was associated with a fourfold increase in crash risk, while a BAC of 0.10 percent, the old cutoff, nearly sextupled the risk. But even the relatively modest twofold risk increase that is commonly attributed to marijuana may be an exaggeration.
Rogeberg and Rune Elvik, a road safety researcher at the Institute of Transport Economics in Oslo, co-authored a 2016 meta-analysis that sought to correct errors in the earlier estimates. “A major problem in both meta-analyses was that they failed to use adjusted estimates from the studies they were pooling,” Rogeberg says. “Comparing THC-positive and THC-negative drivers with the same sex and similar ages, you find a much lower risk increase. In addition, we found that both studies had made errors when extracting data from the underlying studies, and that they combined estimates that were not estimating the same thing.”
Rogeberg and Elvik’s meta-analysis, published in the journal Addiction, found “the average risk increase associated with cannabis intoxication and recent use” was more like 35 percent, which Elvik compared to the added risk associated with driving at night rather than during the day. After that analysis was published, Dalhousie University epidemiologist Michael Asbridge, the lead author on one of the 2012 studies indicating a doubling of risk, told The Leaf, a cannabis news site, he thinks “the true estimate lies somewhere between their revised estimate and our estimate.”
Michael White did his own review of what he identified as “the best epidemiological evidence” in 2017 and concluded that “if cannabis does increase the risk of crashing, the OR [odds ratio] is unlikely to be greater than about 1.3″—i.e., a 30 percent risk increase. A 2018 meta-analysis of two dozen studies, published in Frontiers in Pharmacology, found that “publication bias was very high,” meaning studies that find marijuana increases crash risk are much more likely to see print than studies that don’t, and that the overall association “is not statistically significant.” By contrast, a 2019 meta-analysis published in The Canadian Journal of Addiction, based on a smaller set of studies, calculated a statistically significant odds ratio of about 2.5, representing a 150 percent risk increase.
NHTSA’s 2016 crash risk study in Virginia Beach, Virginia, which the agency described as the “largest and most comprehensive study” of its kind, shows why methodology matters. The researchers matched each of 3,000 drivers who were involved in crashes with two drivers who were not but who were on the road in the same location on the same day of the week at the same time and traveling in the same direction. The initial analysis found that drivers who tested positive for THC were 25 percent more likely to be involved in crashes. But that difference disappeared once the researchers took into account age, gender, race/ethnicity, and alcohol use.
Those results suggest that recent cannabis consumption could be an indicator of other variables that independently affect crash risk. “If the THC-positive drivers were predominantly young males,” NHTSA noted, “their apparent crash risk may have been related to age and gender rather than use of THC.” White thinks that observation may explain the results of other studies that did not adjust for confounding variables. “What they report as a marijuana effect might well be a young man effect,” he says. Young men are especially likely to be cannabis consumers and especially prone to crashes even when they are perfectly sober. Furthermore, the sort of young men who think nothing of getting behind the wheel right after smoking pot are probably more reckless than the ones who decide that’s not such a good idea.
Then again, the NHTSA study may have underestimated marijuana’s impact on crash risk because it treated all THC-positive drivers as if they were under the influence, when some of them probably were not. Recent simulator studies have found that performance is no longer affected two or three hours after smoking pot, although THC can still be detected by blood tests at that point. Putting THC-positive-but-unimpaired drivers in the marijuana-exposed group would tend to reduce the apparent crash risk.
What they report as a marijuana effect might well be a young man effect.
A related issue in other crash risk studies is the lag between an accident and obtaining a blood sample. The NHTSA study included a data collector who was a licensed phlebotomist, so samples were drawn promptly. But ordinarily blood may not be obtained until one to three hours after a crash, which could be enough time for THC blood levels in some drivers to fall below the detection threshold. To the extent that happens, drivers who were under the influence when they got into accidents could be misclassified as drug-free, which also would reduce the apparent crash risk.
Does Legalization Mean More Crashes?
If driving under the influence of marijuana increases the risk of a crash by 30 percent, or even 100 percent, it is surely not a wise or responsible choice, but it is still much less dangerous than driving while drunk and no more dangerous than other hazards that do not generate the same opprobrium or legal sanctions. “Turning on the radio increases the risk of accident almost twofold,” NORML’s Paul Armentano says. “Driving with more than two passengers in the car increases one’s risk of accident more than twofold. Obviously, texting while driving dramatically increases one’s risk of accident. On the spectrum of risk, being under the influence of marijuana is at the low end. Public safety campaigns and the law need to provide that kind of perspective.”
Given the relatively small hazard posed by marijuana, legalizing it would not necessarily lead to more traffic fatalities. To the extent that marijuana serves as a substitute for alcohol, legalization might even improve road safety by replacing severely impaired drinkers with modestly impaired cannabis consumers.
A 2013 study reported in The Journal of Law & Economics found evidence of such an effect in states that legalized medical use of marijuana, which saw a 9 percent drop in traffic fatalities compared to states that did not, apparently due to a reduction in alcohol consumption. A 2017 study reported in the American Journal of Public Health likewise found that medical marijuana laws were associated with reductions in traffic fatalities.
So far there is not much evidence of a substitution effect in states that have legalized recreational use. But neither is there much evidence that legalization has made fatal crashes more common.
A 2016 study by the AAA Foundation for Traffic Safety found that in Washington, which legalized marijuana in 2012, the share of drivers in fatal crashes who tested positive for THC stayed about the same in 2013 but doubled in 2014. Although state-licensed marijuana stores began serving recreational customers in July 2014, the authors said, “it was not possible to evaluate the impact of the opening of marijuana retail stores on the prevalence of THC-positive drivers in fatal crashes, because this occurred only 6 months before the end of the study period.” The likelihood that drivers would be tested for drugs rose during the study period, but the researchers used imputation methods to estimate results for untested drivers.
The authors of the study noted that “drivers who had detectable THC in their blood at the time of the crash were not necessarily experiencing impairment in their ability to drive safely, nor were they necessarily at fault for the crash.” In other words, the increase in THC-positive test results may reflect a general increase in cannabis consumption, as opposed to an increase in crashes caused by marijuana. “They are identifying that marijuana is more prevalent in drivers today than it was in the past,” Armentano says. “That tells us nothing about accident risk.”
Legalization might even improve road safety by replacing severely impaired drinkers with modestly impaired cannabis consumers.
That point applies with even greater force to data highlighted by the Rocky Mountain High Intensity Drug Trafficking Area, an anti-drug task force that claims the number of “traffic deaths related to marijuana” doubled between 2013 and 2016 in Colorado, where marijuana was legalized in 2012. Those cases include all fatal crashes where a driver tested positive for any amount of THC or an inactive metabolite, so there is even less reason to assume marijuana contributed to the deaths.
If we want to know whether legalization increases traffic fatalities, the relevant question is whether states that allow recreational use see more of them than would otherwise have been expected. According to a 2017 study published in the American Journal of Public Health, “changes in motor vehicle crash fatality rates for Washington and Colorado were not statistically different from those in similar states without recreational marijuana legalization.” A 2018 working paper published by the National Bureau of Economic Research reached a similar conclusion about those two states, finding that “synthetic control groups saw similar increases in marijuana-related fatality rates despite not legalizing recreational marijuana.”
A 2019 study published in Addiction, by contrast, found that after legalization “traffic fatalities temporarily increased by an average of one additional traffic fatality per million residents” in Colorado, Washington, and Oregon as well as neighboring states. On the whole, Armentano says, the data indicate that “you can change the legal status of marijuana” without having “a significant adverse effect on traffic safety.”
Could It Be Drugs?
Such assurances, of course, are little comfort to the families of people killed in crashes caused by stoned drivers. In 2016, for instance, 43-year-old Amanda Walzer was killed and her 49-year-old fiancé, Jon Warshawsky, suffered a brain injury when a Toyota Corolla crossed the center divider and collided head-on with their vintage Porsche sports car on Pomerado Road in San Diego. The driver of the Corolla, 36-year-old Hyun Jeong Choi, had just smoked marijuana she bought at a nearby dispensary. Police found an open bag of marijuana and a recently used pipe in her car. Choi, who in January was convicted of gross vehicular manslaughter while intoxicated and DUI causing injury, said she “tried to fight it” and “tried to get home” after smoking the pot, which was stronger than she expected.
Thomas Page
The desire to identify such dangerously impaired drivers before they hurt or kill anyone was one of the main motivations for the DRE program. As a Detroit police officer in the late 1970s, Thomas Page recalls, he would come across drivers who “were impaired” but “had little or no alcohol in them.” He would wonder, “Could it be drugs?” Because police had no test to verify that suspicion, Page says, “officers like me were increasingly frustrated.”
After he moved to the Los Angeles Police Department in 1981, Page helped develop a response to that problem. Partly because he had a master’s degree in urban studies and had worked for the Wayne County Health Department while attending graduate school, he was asked to help coordinate a 1985 study of the DRE program, which the LAPD had recently established to fill the gap that frustrated Page and his fellow officers. The DRE protocol combined “field sobriety tests” that had been developed for alcohol, such as the walk-and-turn and finger-to-nose tests, with an interview and other indicators thought to be affected by drug use, such as pulse, blood pressure, pupil size, and visual tracking.
The L.A. study, conducted by NHTSA researcher Richard Compton, looked at DRE evaluations of 173 suspects who had been arrested for driving under the influence of drugs other than (or in addition to) alcohol. The DRE officers concluded that all 173 suspects were impaired by illegal drugs, and blood tests found substances other than alcohol in all but 11 cases. That finding is often reported as a 94 percent accuracy rate, which sounds impressive but is misleading for several reasons.
First, the rate at which the officers correctly identified the drugs suspects had taken was lower. They were “entirely correct” (meaning they named all the drugs detected) 49 percent of the time, “partially correct” (meaning they named at least one of the drugs detected) 38 percent of the time, and “wrong” (meaning none of the drugs they named was detected) 13 percent of the time. When a DRE concluded that a suspect was high on marijuana, the blood test found THC 78 percent of the time.
Second, all of the subjects had already been arrested for driving under the influence of drugs, based on evidence such as erratic driving, slow responsiveness, lack of balance, drugs found in the car, and admissions of drug use. “This method skewed the study sample towards drug impairment,” notes Greg Kane, a physician and medical malpractice expert, in a 2013 critique published by the Journal of Negative Results in BioMedicine. “The DRE opinions were correct 94% of the time—because 94% of the sample group had drugs present.” Hence that figure “reveals not the diagnostic accuracy of the [DRE evaluation], but the prevalence of drugs in the sample population.”
Third, the blood tests did not actually confirm that the suspects were impaired by drugs, which is what the DRE protocol is supposed to detect. “The fact that drugs were found in a suspect’s blood does not necessarily mean the suspect was too impaired to drive safely,” Compton wrote. “Contrary to the case with alcohol, we do not know what quantity of a drug in blood implies impairment. Thus, this study can only determine whether a drug was present or absent from a suspect’s blood when the DRE said the suspect was impaired by that drug.”
The politicians want a quick fix, and this is what they’ve come up with.
In addition to the LAPD study, Kane considered a 1994 field study in Phoenix and a 1985 laboratory study. These three studies, all of which were funded by NHTSA, are commonly cited as validating the DRE protocol. But Kane found they “did no reference testing of driving performance or physical or mental impairment, investigated tests different from those currently employed by U.S. law enforcement, used methodologies that biased accuracies, and reported DIE [drug influence evaluation] accuracy statistics that are not externally valid.” Kane concluded that these studies “do not quantify the accuracy of the DIE process now used by U.S. law enforcement” and “do not validate current DIE practice.”
Scott Macdonald, an epidemiologist and biostatistician at the Canadian Institute for Substance Use Research, reviews the evidence in favor of the DRE process in his self-published 2018 book Cannabis Crashes: Myths & Truths. “The DRE protocol is not a scientifically valid technique for proving that an individual has consumed a particular class of illicit drug resulting in impairment,” he writes, although “officers are able to identify drug classes with an accuracy better than chance.” And while “DRE assessments are considered the gold standard for impairment, they have not been validated against a reasonable threshold for impairment using any type of biological test.”
David Rosenbloom, a drug expert at McMaster University in Hamilton, Ontario, is similarly skeptical of the DRE protocol, which the Canadian government has endorsed. “We’re just at the beginning of developing tests for impairment,” he says. “The politicians want a quick fix, and this is what they’ve come up with. The legislation [backing the DRE program] got passed based on reliability, not validity. Reliability is really a test of repeatability. So yeah, you’re getting the same results over and over, but it doesn’t mean anything, because it’s not valid.”
Name That Drug
These critics have a point, but that does not mean DRE evaluations have no value as evidence of stoned driving. Some laboratory studies have found that DRE techniques are helpful in determining which drug subjects have taken. In the 1985 study that Kane reviewed, for instance, officers missed a lot of the subjects who had been given drugs, especially when the doses were low. But when they judged the subjects to be intoxicated, they generally picked the right drug out of four possible choices. Although the officers incorrectly put pot smokers in the placebo group 45 percent of the time, they were correct in all but one case when they concluded that a subject had consumed cannabis.
In other laboratory studies, DRE methods look less impressive. “When DREs concluded impairment was due to drugs other than ethanol,” a 1996 study reported in the Journal of Analytical Toxicology found, “their opinions were consistent with toxicology in 44% of cases.” A 2005 study reported in the journal Accident Analysis & Prevention found an alarming false positive rate of 57 percent. The officers correctly identified subjects under the influence of cannabis about half the time, but nearly a third of the subjects they thought had smoked pot actually got the placebo.
Another 2005 study, reported in Forensic Science International, focused on the correspondence between field sobriety tests (FSTs), a major component of the DRE assessment, and marijuana-impaired performance on a driving simulator. In the low-dose condition, 89 percent of subjects scored as impaired on the driving simulator were correctly identified by the FSTs, but 61 percent of the subjects who did fine on the driving simulator nevertheless failed the FSTs. In the high-dose condition, the FSTs identified 92 percent of impaired drivers but incorrectly classified 85 percent of the unimpaired drivers as impaired. The researchers concluded that “performance on the [FSTs] provides a moderate predictor of driving impairment following the consumption of THC.”
Supporters of the DRE program argue that the laboratory studies are unrealistic because they do not include the entire DRE protocol, because the stakes are different (so officers may be more inclined to guess), and because the drug doses are lower than the ones police typically encounter. Another significant difference is that laboratory subjects take just one out of four or five drugs at a time, while drivers pulled over by the police are often under the influence of multiple drugs. While all of that is true, the laboratory studies have the advantage of testing DRE methods in a controlled setting. In the real world, it is harder to tell what is going on.
A 2016 study sponsored by the AAA Foundation for Traffic Safety, for instance, compared 602 drivers who had been arrested for driving under the influence and had tested positive for THC but no other drugs to 349 “drug-free controls,” mainly volunteers who underwent DRE evaluations “for training purposes or for their own interest.” The controls did much better than the arrestees on three FSTs: the walk-and-turn, one-leg-stand, and finger-to-nose tests. But that is hardly surprising, since these drivers were charged with DUI based partly on their FST performance. Likewise, it makes sense that indicators such as “red, bloodshot and watery eyes,” “rebound dilation” (widening of pupils after constriction in response to a bright light), “lack of convergence” (the failure to cross your eyes while tracking an object as it moves toward your nose) were more common among DUI arrestees, since those are clues that police use to identify drug-impaired drivers.
A similar study, co-authored by Marilyn Huestis and published the same year in Accident Analysis & Prevention, compared 302 THC-positive arrestees to 302 “non-impaired individuals,” mainly police officers undergoing DRE training. The researchers found that the finger-to-nose test “best predicted cannabis impairment.” Eyelid tremors during the modified Romberg balance test—which requires the subject to estimate the passage of 30 seconds while standing with his feet together, eyes closed, and head back—were a close second. “Other strong indicators” included rebound dilation, swaying during the one-leg stand, and two or more mistakes during the walk-and-turn test.
The differences between the two groups may have been magnified by the police officers’ greater familiarity with the FSTs. Leaving that point aside, the “strong indicators” were the characteristics that distinguished THC-positive DUI arrestees, selected based partly on those very criteria, from sober police officers. They are not necessarily the characteristics that distinguish dangerously impaired drivers from sober ones. Neither THC-negative drivers who fail DRE evaluations nor intoxicated drivers who pass them would be included in a study like this one.
Supporters of the DRE program argue that the laboratory studies are unrealistic.
In addition to the tests highlighted by these studies, the full DRE protocol, which takes about an hour to complete, includes interviews with the suspect and the arresting officer. Those conversations may reveal details like these: The suspect drove erratically, had trouble rolling down his window, fumbled for his license, had difficulty answering questions, staggered as he walked, smelled like marijuana, had a bag of weed on the front seat, and/or admitted that he had recently smoked pot. These are, to be sure, relevant pieces of information that are not available to a DRE participating in a laboratory study. But they may influence the officer’s interpretation of test results, his perception of intoxication clues such as swaying or red eyes, his inquisitiveness about alternative explanations for such clues, and his ultimate conclusion about whether the driver is impaired and, if so, by what.
That tendency “is what we call confirmation bias,” says David Rosenbloom, the Canadian drug expert. “You confirm what you’re thinking all along, as opposed to what is true.”
Thomas Page, who ran the LAPD’s DRE program for 10 years, is familiar with the problem. “It’s a danger,” he says. “Certainly we’re aware of that possibility. That comes up very, very often. The officer needs to take that into consideration.” He notes that a DRE may end up disagreeing with an arresting officer who thinks a driver is impaired. That happened in 18 of the original 219 DUI cases identified in the 1985 LAPD field study, and those drivers were released.
Shira Stefanik, a Seattle defense attorney who specializes in DUI cases, argues that DREs, given the context in which they are deployed, are inclined to conclude that drivers are impaired. “If a cop pulls you over and thinks you’re impaired and is asking you to get out of the car to take these tests,” she says, “more often than not they already think you’re impaired, and they’re running you through this battery to enhance their report later on. The cops are looking for certain clues and plugging them into a mental spreadsheet of what substances the person could potentially be on. I don’t find that they’re looking for alternative explanations. They’re looking to justify their arrest and possibly help a conviction, depending on how those blood results come back.”
Green Tongues and Red Flags
First impressions are important because many clues identified by DREs are ambiguous. Ideally, police would compare a driver’s current condition and performance with his condition and performance when he is sober. But DREs have no baseline information, so they rely instead on averages and on assumptions about what a sober person should look like and be able to do. Bloodshot eyes might indicate cannabis consumption, or they might indicate fatigue or allergies. A fast pulse might be a sign of marijuana use or a sign of nervousness. Lack of convergence or poor performance on sobriety tests might reflect the effects of THC or a person’s innate limitations. In the AAA study of DRE evaluations, a substantial fraction of the “drug-free controls,” ranging from one-third to more than half (depending on the test) failed the FSTs.
So did Ronnie Payton, the Washington driver arrested on Christmas Day 2012. His lawyer successfully argued that stress, cold weather, glaucoma, and war injuries explained the clues that the arresting officer perceived as signs of intoxication.
“When you do a lot of field sobriety testing, what you find out is that it’s not terribly useful by itself,” says Teri Moore, who learned the DRE protocol from Thomas Page when she was a police officer in L.A. and eventually became a DRE instructor. “There are people who are cold sober who cannot walk a line or stand on one foot. My eyes don’t converge no matter what. And there are plenty of people like that.”
Moore, who is now a policy analyst at the Reason Foundation, which publishes this website and in January released a paper on marijuana-impaired driving that she wrote, says DREs are taught that it’s not safe to rely on one or a few clues. They are supposed to reach a conclusion “based on the totality of the evaluation,” as the IACP puts it.
Once they get out of the classroom and into the field, however, DREs do not necessarily follow the protocol to the letter. In 2017 the American Civil Liberties Union of Georgia sued the Cobb County Police Department in federal court on behalf of three sober drivers who were arrested by a DRE, Officer Tracy Carroll, based on a “watered-down version” of the 12-step protocol. Carroll pulled over all three drivers for briefly touching or crossing the line at the edge of their lanes and deemed all of them stoned despite their protests to the contrary. They were all arrested for DUI and spent a night in jail, and their charges were all eventually dropped after tests found no trace of marijuana in their blood. Carroll’s bosses stood by him, saying he not only had “more than enough probable cause to arrest” but would have been justified in busting the plaintiffs for driving under the influence of marijuana even if he had already seen the blood test results showing that they weren’t.
We’re pretty good at making sure that we’re prosecuting the right people.
Carroll rejected alternative explanations for observations he saw as evidence of marijuana intoxication, such as watery eyes. Another lawsuit filed in Georgia illustrates that pitfall even more dramatically.
On a Sunday morning in May 2006, according to a 2010 ruling by U.S. District Judge Hugh Lawson, Tift County Sheriff’s Deputy Joey Budd pulled over a commercial truck on Interstate 75 because he saw smoke billowing from it. Budd noticed that the driver, Luther Smith, “was unsteady on his feet, that his speech was slow and kind of mumbled, that his shoes were on the wrong feet, and that he had urinated in his pants.” Budd summoned a DRE, Deputy Mark Lyles, who evaluated Smith and concluded that he was under the influence of drugs.
Smith was arrested and taken to jail. That night, after his jailers noticed that he had fallen, his face was drooping, and he was drooling, they decided he needed medical attention. He was taken to a hospital and eventually died from complications caused by an ischemic stroke. At the time of the stop, Judge Lawson noted, “Budd was aware that there could be medical explanations for Smith’s behavior,” but “he was not in a position to rule out the possibility that Smith’s behavior was caused by a medical condition and not drugs.”
That sort of mistake is presumably rare. NORML’s Paul Armentano says the most common issue he sees in DUID cases in which he advises defense attorneys is that “there’s no evidence of impaired driving.” A police officer pulls someone over for something like an expired registration sticker or a broken taillight and only afterward suspects the driver is intoxicated. “At no point does the officer make any observation of the person driving erratically,” Armentano says. “And I think, ‘Well, that’s interesting. You’ve been watching this person drive for miles, and you pull them over on an administrative violation.'”
Shira Stefanik
The grounds for suspecting that a driver is high sometimes seem less than scientific. The Washington State Patrol’s DRE course manual, for example, lists “possible green coating on the tongue” as a sign of marijuana intoxication, and defense attorneys say descriptions of green tongues frequently show up in the reports and testimony of officers who arrest people for driving while stoned. “I frankly don’t know where they got that,” says Stefanik, the Seattle DUI lawyer. “Not only have I not seen any research supporting that, but in my own training and experience called college I’ve never seen anyone’s tongue turn green after ingesting marijuana.”
Page says officers are supposed to report their observations. “They see a green coating on the tongue,” he says. “Does it tell them that the person has taken something into the body? Sure, it does. Could it be mints? Yes, it could be Clorets or something like that. Officers can testify to what they saw. They’re certainly not going to be making a final determination whether the person’s under the influence or not under the influence based on the coloration of the tongue.”
By and large, Page says, “we’re pretty good at making sure that we’re prosecuting the right people,” since supervisors, prosecutors, judges, and jurors act as checks on sloppy or overzealous DREs. If a DRE reports an unusually high rate of drivers who refuse to cooperate with blood tests, he says, that’s “a real danger sign,” because it may indicate that “they’re afraid of something not proving them right.” If it turns out that the officer is encouraging refusals, “that’s grounds for removal from the program.” Another “red flag,” Page says, would be if a DRE claims “100 percent of the time, we’re being corroborated” by blood tests.
Teri Moore says the DRE program “tends to draw the geeks” rather than “the Rambo types,” and she’s “never seen” DREs who deviate from the protocol, “because it’s drilled into you in training that you don’t do that.” Consistency is vital, she says, since “the DRE process only continues to be used in court because it is quite accurate and standardized.”
‘The DRE Is Necessary’
U.S. courts generally admit DRE testimony as evidence in DUI cases, although they do not always treat DREs as experts.
In one of the more favorable rulings, the Washington Supreme Court concluded in 2000 that the DRE protocol was “accepted in the relevant scientific communities.” It said a properly qualified DRE officer who has followed all 12 steps of the protocol “may express an opinion that a suspect’s behavior and physical attributes are or are not consistent with the behavioral and physical signs associated with certain categories of drugs.” But the court cautioned that “an officer may not testify in a fashion that casts an aura of scientific certainty to the testimony.”
The Minnesota Supreme Court, by contrast, held in 1994 that the DRE protocol “is not in itself a scientific technique” but allowed DREs to offer nonexpert testimony. “The real issue,” the court said, “is not the admissibility of the evidence but the weight it should receive, and that is a matter for the jury to decide without being led to believe that the evidence is entitled to greater weight than it deserves. Therefore, in the courtroom the officer shall not be called a ‘Drug Recognition Expert.’ Perhaps the officer can be called a ‘Drug Recognition Officer’ or some other designation which recognizes that the officer has received special training and is possessed of some experience in recognizing the presence of drugs without suggesting unwarranted scientific expertise.”
Some courts have been even more skeptical. In a 2012 opinion, based on highly critical expert testimony presented by defense attorneys, Carroll County, Maryland, Circuit Judge Michael Galloway concluded that the DRE protocol “is not generally accepted as valid and reliable in the relevant scientific community.” Since “the DRE training police officers receive does not enable DREs to accurately observe the signs and symptoms of drug impairment,” Galloway said, “police officers are not able to reach accurate and reliable conclusions regarding what drug may be causing impairment.”
An argument against the DRE process is an argument for zero tolerance.
In 2017 the Supreme Judicial Court of Massachusetts concluded that “there is as yet no scientific agreement” about whether FSTs, which “were developed specifically to measure alcohol consumption,” are a sound measure of marijuana intoxication. While FST results “are admissible at trial as observations of the police officer conducting the assessment,” the court said, the officer may not say whether the defendant’s performance “would have been deemed a ‘pass’ or ‘fail,’ or whether the performance indicated impairment.” Furthermore, “because the effects of marijuana may vary greatly from one individual to another, and those effects are as yet not commonly known, neither a police officer nor a lay witness who has not been qualified as an expert may offer an opinion as to whether a driver was under the influence of marijuana.”
One common criticism of DRE methods is that police officers have no medical expertise but are expected to make what is essentially a diagnosis: This driver’s symptoms indicate that he is under the influence of Drug X. “I totally disagree with that characterization,” Page says. “It’s almost like asking whether it’s appropriate for a mother to put her hand on a child’s forehead and say, ‘I think he’s got a fever.'” He notes that a test such as “seeing pupils of different sizes,” which DREs are taught may be a sign of a medical problem such as a seizure or a concussion, “doesn’t require a medical degree.” In Page’s view, “we’re doing a pretty darn good job.”
Marilyn Huestis, who contributed to the DRE course manual, concurs. “We are a society that really wants to always protect the individual,” she says, but “we also need to protect people from drug-impaired drivers. I think that the DRE program is a good program that really attempts very much to do that.”
Paul Armentano
NORML’s Paul Armentano thinks “the DRE is necessary,” although he’d like to see more extensive training. The current program involves 72 hours (nine days) in the classroom and 40 to 60 hours of field certification. “I think the DREs are asked to be experts in far more things than they can gain expertise on in such a short period of time,” Armentano says. “I do think there are components of the DRE exam that use some validated measures for distinguishing people who may or may not be under the influence. It’s a good program to have, but I think the program could be a whole lot better than it is today.”
Even as it is, Moore says, DRE training is “a big cost for departments.” At the beginning of 2018, there were about 8,600 certified DREs in the United States, a country with more than 15,000 local law enforcement agencies. As a cheaper, less time-consuming alternative, NHTSA, which helped produce the DRE curriculum, developed a 16-hour course known as Advanced Roadside Impaired Driving Enforcement (ARIDE). But NHTSA notes that “an ARIDE trained officer who encounters a suspected marijuana-impaired driver would likely summon a DRE” to conduct an evaluation “if one is available.”
According to NHTSA, “there are currently no evidence-based methods to detect marijuana-impaired driving.” The agency is sponsoring research aimed at developing a handheld, tablet-based test of impairment, which if combined with roadside tests of oral fluid could help provide probable cause for DUI arrests. Like blood tests, saliva tests do not prove a driver is currently intoxicated, but they indicate relatively recent use, and the results are available much more quickly. Another possibility, Huestis says, is a cap that measures a driver’s brain waves, assuming it can be shown that “their brain waves look different enough when they’re high.”
Teri Moore
In the meantime, Moore says, DREs are the best available option. “It’s potentially problematic because, as in much of police work, you’re relying on one or two individuals who are experts at what they’re doing to make an assessment on someone,” she says. “It can be used to take away someone’s liberty. You’d better have a good reason for doing that, and you’d better be able to articulate it. It can be abused if no one is watching.”
Moore argues that dashboard and body camera video is an important safeguard, since it can document erratic driving prior to a stop and show how the driver and the officer behaved afterward. “We have to hold police officers to a higher standard,” she says. “If people act badly, they need to be taken off the police force.”
At the same time, Moore adds, “you have to have some means of addressing the problem of impairment by drugs,” and per se laws are neither scientific nor just. “An argument against the DRE process is an argument for zero tolerance,” she says. “This is what we have for now, and it has to be balanced against what would happen if we didn’t have it.”
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Philosopher Hilary Putnam famously proposed a thought experiment in which you are actually a brain nestled in a vat that has been hooked up by an evil scientist to a computer that perfectly simulates the experiences of the outside world. How can you tell that you are not, in fact, a brain in a vat?
Researchers at Yale University have taken a step toward making something like that thought experiment possible by successfully reviving some of the biological functions of brains from pigs slaughtered hours earlier. The researchers achieved this milestone by pumping into these dead pig brains their BrainEx formula, “a hemoglobin-based, acellular, non-coagulative, echogenic, and cytoprotective perfusate that promotes recovery from anoxia, reduces reperfusion injury, prevents edema, and metabolically supports the energy requirements of the brain.”
It has long been medical dogma that brain cells cut off from oxygen die within minutes. In this case, revived brain cells began metabolizing again. This research raises two ethical issues: (1) how might this effect organ donation, and (2) should we worry about disembodied pig consciousness?
In 1968, a committee of ethicists and physicians convened at Harvard to define brain death as irreversible coma in which patients have no discernible central nervous system activity. The organs of such brain dead individuals could be harvested for transplantation into other patients. But what if something like BrainEx could, in the future, revive the brains of folks who heretofore have been declared brain dead? That might well reduce the number of potential organ donors from the 10,000 or so whose organs are harvested every year in the United States.
What about pig consciousness? Regulations that cover animal experimentation do not apply to dead animals. Nevertheless, the Yale researchers dosed their BrainEx with chemicals to block neural activity in the pigs’ brains to try to ensure they never became conscious. They were also ready to administer anesthesia if the brains exhibited any electrical activity that would suggest communication between the revived neurons. No signs of porcine consciousness were detected.
What would a “conscious” pig brain in a vat experience? Likely not pain, since brains do not have pain receptors. If a brain is receiving no outside sensory information, would that induce terror or satori?
One other implication of this research is that improved versions of BrainEx could make possible whole body transplants of the sort being proposed by Italian neurosurgeon Sergio Canavero.
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Whenever I write about complex public-policy problems, I hear from readers who ask something like this: “OK, wise guy, if you’re so smart then tell me how we fix the problem.”
Unfortunately, there aren’t many vexing issues that can be resolved in an 850-word column or a 50-word email rebuttal. Most of California’s myriad “crises” have been years in the making, and they will take years of unraveling—provided they are fixable at all.
The best example is the state’s housing mess, which recently has sparked angry debates in the Capitol as home prices soar, homeownership rates plummet and homeless encampments become ubiquitous. You know the problem has gotten severe when lawmakers have moved beyond the usual superficialities and false solutions designed mainly to give politicians cover.
As journalist H.L. Mencken wrote, “There is always a well-known solution to every human problem—neat, plausible, and wrong.” In California, that simple, well-known and wrong solution is to provide more subsidies and programs. There will never be enough taxpayer money to subsidize an apartment for every Californian who needs one.
At least now we’re arguing over the right thing: the need to hike housing supply. The crisis is caused by years of local and state regulations that make it tough to build new developments. In 2015, the Legislative Analyst’s Office reported that California is falling 100,000 units short each year to house its population. A new study from UCLA finds that zoning restrictions make it infeasible to meet the housing goals set by Gov. Gavin Newsom. Something has to change.
The change agent is Sen. Scott Wiener, D-San Francisco, and his laudable Senate Bill 50. Last year, a similar measure—to require localities to approve high-density apartment buildings and condos around transit lines, provided certain conditions are met—died a quick death. This year, the bill passed out of committee, but has an uncertain future. Suburbanites, even in elite suburbs of Los Angeles and San Francisco, and community activists are uniting to stop it.
The former don’t want their single-family neighborhoods surrounded by apartment buildings, nor do they want more congestion. The California Dream drew me to Southern California from the Midwest 20 years ago. But as the state grows, holding on to that low-density, suburban vision means depriving younger Californians of their shot at the dream.
By contrast, urban activists fear that these loosened development standards will further gentrify their neighborhoods by replacing older buildings housing lower-income residents with upscale condos that bring in wealthier people. These groups tend to dislike anything that helps those dreaded “developers,” even though more development is exactly what’s needed to lower the state’s housing prices. Both groups are using government to keep others out.
Despite its attempt to tackle the supply issue, SB 50 is a far cry from a straightforward, market solution. A Vox writer even argued last year that the bill will “fix” California’s housing problem, but it will do nothing of the sort. It’s the equivalent of trying to unravel a giant hairball by giving one strand a solid tug. Instead of reducing construction regulations—something that would never get off the ground in the current Capitol climate—the bill imposes pages of new regulations, formulas, subsidies and caveats in exchange for the by-right approvals it is granting. Its legislative analysis is 19 pages long.
As Curbed San Francisco reported, Wiener has complicated it further by making “sweeping revisions.” This includes language promoting new developments around ferry lines and ports, a requirement that 15 percent to 25 percent of the new “inclusionary” housing units be set aside for low-income people, and complex regulations for building near “job-rich” areas.
The legislation avoids bigger issues. As Randal O’Toole wrote in his Anti-Planner blog, higher density housing alone won’t solve the affordability problem because “high-density housing costs more to build per square foot than low-density housing—up to 650 percent more depending on the density.” That doesn’t even account for soaring land costs in urban centers.
The main problem: urban-growth boundaries that restrict development throughout entire metropolitan areas. O’Toole reports that only 31 percent of the Bay Area’s six counties has been developed. I’ve addressed this issue when then-Attorney General Jerry Brown touted Marin County a model for land use, even though most of that wealthy county’s land area is off limits to development. Is it a wonder that one must spend upwards of $1 million to live there?
Indeed, past policies—including Brown’s attempts to stop suburban development as a means to battle global warming—have much to do with current problems. The housing crisis is a complicated mess with many causes and no easy buttons. It will require myriad solutions over many years, most of which will run up against interest groups that will derail them. SB 50 should help things, but one must be delusional to think there’s a simple “fix” to anything.
This column was first published in the Orange County Register.
Steven Greenhut is Western region director for the R Street Institute. He was a Register editorial writer from 1998-2009. Write to him at sgreenhut@rstreet.org.
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Let’s say it’s 2013 and you’re Rick Scott, the multimillionaire governor of Florida, an evangelical Christian, and you’re trying to force the introduction of prayer into the state’s public schools. One day a gaggle of supporters shows up on the steps of the statehouse. Oddly, they’re wearing black hooded robes and their leader has a pair of fake devil horns clamped to his noggin. But they’re loudly on your side—they like this school-prayer thing you’re trying to pull off. One of them looks up toward a window from which you might possibly be observing and shouts out, “Hail Satan, Rick!“
This maiden provocation by the newly formed Satanic Temple, preserved in director Penny Lane’s new documentary Hail Satan?, was instantly embraced in the more tabloid-y precincts of the national media. The Temple members, led by a semi-mysterious character called Lucien Greaves (not his real name, are you kidding?), said they welcomed Scott’s attempted end run around the Constitutional prohibition of government-established religion—because that would also clear the way for them. As we see a bemused Chris Hayes summing up their agenda on MSNBC: “You open the door to God, you open the door to Satan.”
We’ve always known God had a sense of humor—how else do you explain pineapple pizza, Jean-Claude Juncker, or the needle-nosed narwhal? Satan, however, is not often thought to be much of a joker. But then the members of the Satanic Temple (TST) don’t even believe he exists, except as a literary character (and please note that they’re definitely not Satan worshippers). For them, the dark lord is a satirical construct in the pursuit of their mission, which is trolling the culture wars.
“It’s a founding aspect of Satanism that you troll people,” says Jesper Aagaard Petersen, a Norwegian author and apparent scholar of all things strange and devilish. “That’s the original troll, to say, ‘Yeah, I’m a Satanist,’ and see what happens.”
This is what happens. In Portland, Oregon, the local Temple chapter took aim at Christian after-school clubs for kids that were meeting on school property. TST, which is opposed to any infiltration of religious organizations into the public sphere, argued that it should also be allowed to launch a club—an “After School Satan” program, to propagate the values of science and rational thought. Since it’s hard to argue against a second religious group after you’ve already allowed one into your schools, the Satanists prevailed.
TST has larger interests than little club meetings, of course. Jex Blackmore, former head of the Temple’s Detroit chapter, says in the film that the goal of modern Satanism is to “challenge the state and oppose the theocratic stranglehold on our morals and sexuality, our identity and our nature.” The group’s ethical program, unsurprisingly, is basically libertarian: pro-freedom, pro-choice, pro-gay rights, with an insistence on complete bodily autonomy and a preference for “justice over laws.” The group also emits a strong goth-punk vibe (the film’s soundtrack features Napalm Death, Scar Eater and Marilyn Manson).
Having spent a couple of years making this film, director Lane was able to amass some prime footage. One of the Temple’s most memorable exploits, for example, was a “Pink Mass” it held in Meridian, Mississippi, hometown of the odious Fred Phelps, founder of the Foxboro Baptist Church—yes, the “God Hates Fags” guy. The mass was conducted at the grave of Phelps’s mother, Catherine, and it featured two gay men and then two lesbians leaning across her tombstone and kissing. Said Lucien Greaves, who presided at the event, “His mother is now gay in the afterlife.”
The Temple also fights an ongoing battle against the erection of municipal monuments to the Ten Commandments. Interestingly, these stone structures all look so similar—big stylized tablets bearing the famous holy words—because they were originally distributed as promotional items by Paramount Pictures to advertise its 1956 movie, The Ten Commandments. (In a clip from that film we see a golden-calf idolator played by Edward G. Robinson yelling at Charlton Heston’s Moses, “We will not live by your law—we are free!”) TST’s heaviest weapon in battling the spread of these showbiz artifacts across the secular landscape is a seven-foot-tall statue of Baphomet, the goat-headed devil deity—the mere mention of which can sometimes (although not always) persuade the Temple’s evangelical opponents to back down.
In 2014, the Temple mounted another bold operation on the campus of Harvard University (Greaves’s alma mater), securing permission to stage a Black Mass there as an educational exercise. This infuriated the Boston archdiocese, which called in thousands of protesters—which in turn deeply irritated TST co-founder Malcolm Jarry. “This is the Catholic Church of Boston,” Jarry says in the film, “which covered up decades of child rape, moved priests around…let them continue their raping and child abuse—and then had the gall to say what we’re doing was sinful? I mean, fuck them.”
But Harvard did shut down the Black Mass, just hours before it was to be held, forcing TST to relocate the event to a comedy club above a Chinese restaurant. It was almost like there is no God.
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Those results suggest that recent cannabis consumption could be an indicator of other variables that independently affect crash risk. “If the THC-positive drivers were predominantly young males,” NHTSA 
If driving under the influence of marijuana increases the risk of a crash by 30 percent, or even 100 percent, it is surely not a wise or responsible choice, but it is still much less dangerous than driving while drunk and no more dangerous than other hazards that do not generate the same opprobrium or legal sanctions. “Turning on the radio increases the risk of accident almost twofold,” NORML’s Paul Armentano says. “Driving with more than two passengers in the car increases one’s risk of accident more than twofold. Obviously, texting while driving dramatically increases one’s risk of accident. On the spectrum of risk, being under the influence of marijuana is at the low end. Public safety campaigns and the law need to provide that kind of perspective.”
These critics have a point, but that does not mean DRE evaluations have no value as evidence of stoned driving. Some laboratory studies have found that DRE techniques are helpful in determining which drug subjects have taken. In the 1985 study that Kane reviewed, for instance, officers missed a lot of the subjects who had been given drugs, especially when the doses were low. But when they judged the subjects to be intoxicated, they generally picked the right drug out of four possible choices. Although the officers incorrectly put pot smokers in the placebo group 45 percent of the time, they were correct in all but one case when they concluded that a subject had consumed cannabis.
A 
First impressions are important because many clues identified by DREs are ambiguous. Ideally, police would compare a driver’s current condition and performance with his condition and performance when he is sober. But DREs have no baseline information, so they rely instead on averages and on assumptions about what a sober person should look like and be able to do. Bloodshot eyes might indicate cannabis consumption, or they might indicate fatigue or allergies. A fast pulse might be a sign of marijuana use or a sign of nervousness. Lack of convergence or poor performance on sobriety tests might reflect the effects of THC or a person’s innate limitations. In the AAA study of DRE evaluations, a substantial fraction of the “drug-free controls,” ranging from one-third to more than half (depending on the test) failed the FSTs.
Once they get out of the classroom and into the field, however, DREs do not necessarily follow the protocol to the letter. In 2017 the American Civil Liberties Union of Georgia 
U.S. courts 
