Testimony on S. 150, The South Carolina Compassionate Care Act

Testimony Crime and Justice

Testimony on S. 150, The South Carolina Compassionate Care Act

May 13, 2022 30 min read
Paul Larkin
Rumpel Senior Legal Research Fellow
Paul is a senior legal research fellow in the Meese Center for Legal and Judicial Studies at The Heritage Foundation.
If passed in its current form, the South Carolina Compassionate Care Act, S. 150, will increase the number of crashes on South Carolina roads caused by people driving under the influence of cannabis, and those crashes will maim and kill innocent South Carolina drivers, passengers, and pedestrians. The proposed legislation indicates that the South Carolina General Assembly is aware of the problem of drug-impaired driving, but S. 150 does not go far enough to address the likelihood—not just the possibility—that legalizing cannabis for medical use will lead people to use and then drive while under the influence of its psychoactive ingredient. Perhaps that risk might be worth running if cannabis were a legitimate analgesic alternative to opioids and therefore could make a contribution to the effort to prevent opioid overdoses and deaths. But cannabis is not. Cannabis is not a drug that will save lives; on the contrary, in some cases, it will have the opposite effect.
Hearing Before Subcommittee I on Health and
Environmental Affairs of the Medical, Military,
Public and Municipal Affairs Committee 
 
The South Carolina General Assembly
The House of Representatives


April 4, 2022 (Submitted April 5, 2022)

Written Statement of Paul J. Larkin,
John, Barbara, and Victoria Rumpel Senior Legal Research Fellow
Edwin J. Meese Center III for Legal and Judicial Studies
The Heritage Foundation

 

Thank you for the opportunity to submit this written statement.REF My name is Paul J. Larkin. I am a South Carolina resident. I also am the John, Barbara, and Victoria Rumpel Senior Legal Research Fellow at The Heritage Foundation (Heritage). I note my title and affiliation for identification purposes only. I submit this statement on my own behalf, not on behalf of Heritage. Members of the Heritage staff submit written statements and testify as individuals discussing their own independent research. The views expressed here are my own and do not reflect an institutional position for Heritage or its board of trustees.

One area of my research is drug policy,REF particularly drug-impaired driving.REF I will rely on that research to make one point: If passed in its current form, the South Carolina Compassionate Care Act, S. 150, will increase the number of crashes on South Carolina roads caused by people driving under the influence of cannabis, and those crashes will maim and kill innocent South Carolina drivers, passengers, and pedestrians. The proposed legislation indicates that the South Carolina General Assembly is aware of the problem of drug-impaired driving, but S. 150 does not go far enough to address the likelihood—not just the possibility—that legalizing cannabis for medical use will lead people to use and then drive while under the influence of its psychoactive ingredient. Perhaps that risk might be worth running if cannabis were a legitimate analgesic alternative to opioids and therefore could make a contribution to the effort to prevent opioid overdoses and deaths. But cannabis is not.REF Cannabis is not a drug that will save lives; on the contrary, in some cases, it will have the opposite effect. There are several steps that can be taken to address cannabis-impaired driving, and I hope that the General Assembly will consider them.

South Carolina Should Not Consider Legalizing Medical-Use Cannabis Unless and Until It Acts to Prevent and Ameliorate the Injuries and Deaths that Will Result from Crashes Caused by People Who Consume Cannabis and Drive

I. The Problem of Drug-Impaired Driving

At the outset, it is important to recognize that, while the legalization of medical-use cannabis is the issue presently before the legislature, the problem of drug-impaired driving is not attributable to that drug alone. Other drugs, such as opioids, methamphetamine, psychedelics (e.g., LSD), and even benzodiazepines (minor tranquilizers) can impair someone’s ability to handle a motor vehicle safely. Further aggravating the problem is the combination of one or more of those drugs—known as “polydrug use”—as well as the combination of psychoactive drug use and alcohol. But cannabis is on the General Assembly’s plate right now, so I will focus on that drug.REF

The primary psychoactive ingredient in cannabis—delta9tetrahydrocannabinol (THC)—hampers a driver’s ability quickly and effectively to process and respond to unexpected or rapidly changing driving scenarios. In fact, other than alcohol, cannabis is currently the biggest problem drug for roadway safety—not because it is more impairing than drugs like heroin, but because it is more commonly used, a use that is increasing rapidly. More than 30 states now permit adults to use cannabis for medical or recreational purposes. Those states might expand their current lawful uses. Other states are likely to consider joining them.

If cannabis-impaired driving alone were not a serious enough public health hazard, consider this: A large number of people combine cannabis with alcohol, which only worsens impairment. That combination is particularly common already (and perhaps will become increasingly so, following cannabis legalization) and especially troublesome given the additive or synergistic and debilitating effect that such a cocktail has on safe motor vehicle-handling. Someone with a blood alcohol content (BAC) level below 0.08 but who is also under the influence of cannabis would not be deemed impaired as a matter of law, but very well might be more incapacitated than someone with a BAC level above the limit. That aggravates our impaired-driving problem, because, given today’s technology, we cannot use the same approach to measure THC impairment that we use for alcohol.

There is reason to be concerned that increased use of cannabis will lead to an increase in fatal and non-fatal motor vehicle crashes. Consider the data from Colorado since that state enacted a recreational cannabis initiative in 2012. According to a September 2018 report by the Strategic Intelligence Unit of the Rocky Mountain High Intensity Drug Trafficking Area (HIDTA) Task Force, since 2012 traffic deaths involving drivers who tested positive for cannabis have increased by 35 percent, while the number of cannabis-related fatalities jumped 151 percent from 55 in 2013 to 138 in 2017. In 2017, 76 of the 112 drivers involved in fatal wrecks tested positive for THC, not an inactive cannabis metabolite, in their blood—and therefore in their brain—which indicates cannabis use within hours preceding the crash. The 2017 number translates to one person killed every 2.5 days. Earlier HIDTA Task Force Reports and other organizations have found similar results.REF

Those sad facts are not surprising when one considers the following. An anonymous November 2017 Colorado Department of Transportation survey concluded that 69 percent of respondents admitted to driving while “high” from cannabis within the prior year, 55 percent said that driving under the influence of cannabis was safe, and 55 percent of that group said that they had driven while high an average of 12 times in the prior 30 days. The one word that best describes those results is “scary.” Finally, there is evidence that this problem might last longer than the average person expects. One study found that chronic, daily, cannabis users still suffered from impairment three weeks into abstinence, past the point at which the average person might think himself free of THC’s disabling effect.REF

One final point in this regard. Legalizing any psychoactive substance puts innocent parties at risk of grave bodily injury or death if they drive because some other drivers might be impaired by any such substance. That is a critical factor to consider. As I have explained elsewhere:

Like the debate over cannabis legalization, the challenge to the constitutionality and morality of capital punishment has been the subject of vigorous dispute for the last several decades. One of the most common and powerful arguments advanced against the death penalty is that the criminal justice system is so riddled with flaws that there is an unacceptable risk that an innocent person will be executed. In any event, the argument goes, the difference between who lives and dies is entirely arbitrary.
Ironically, the adoption of medical and recreational cannabis schemes poses the same risk of killing the innocent. Yet, we do not see any discussion of this cost of reform of the nation’s cannabis laws, let alone any outcry against liberalization that it will cost innocent lives. It is time that we should.
There should be little doubt that the existence of medical and recreational cannabis schemes increases the risk of highway morbidity and mortality. Logic compels that conclusion. Eliminating criminal penalties for cannabis possession and use will entice some new number of people to use cannabis who avoided it because it had been a crime. Some number of those people will drive after becoming impaired. In turn, some number of those people will contribute to an accident, perhaps one involving a fatality. It certainly is the case that a legislature could decide that cannabis liberalization will lead to an increase in cannabis use and therefore decide to allocate any burden on the party—the cannabis user—who increases the risk of morbidity and mortality to deter people from using marijuana and driving.

* * * * *

The result is this: adoption of medical and recreational cannabis initiatives poses the risk of killing entirely innocent parties, whether they are other motorists, passengers, or pedestrians, in a purely random manner. Those people are no less innocent, and no less dead, than the hypothetical individual who is wrongfully convicted of a capital crime and executed. That omission deserves especial blame in the case of increased recreational use of marijuana. Whatever benefit marijuana may offer the people who smoke it, it cannot save lives. It can, however, take them.REF

The bottom line is that the problem of cannabis-impaired driving is a serious one.

II. The Risks of Drug-Impaired Driving Cannot Be Defended on the Ground that Cannabis Is an Analgesic Alternative to Opioids

Perhaps, it might be reasonable to run those risks if it could be proven that cannabis is a legitimate therapeutic alternative to opioids and therefore helps to reduce the risk of opioid abuse. That problem truly is a serious one. The current epidemic of fatal opioid overdoses is the third of three different “waves” that have broken on America’s shores, each one characterized by a more powerful opioid than its predecessors.REF Wave 1 was the overuse of prescription opioids. In Wave 2, pharmaceutical firms developed abuse-deterrent formulations of opioids, and the federal and state governments made it more difficult for physicians to prescribe opioids for chronic pain sufferers. That wave saw people turn to heroin use, as heroin was easier to obtain and less expensive than prescription opioids. Wave 3, the current stage, is beset with use of fentanyl and its derivatives (e.g., carfentanil, a tranquilizer used on elephants) as a cutting agent added to heroin because fentanyl is less expensive to create.REF The result is that even if state medical cannabis laws had a beneficial effect at the time of the original studies, those state laws no longer have that effect today.

While it is true that numerous individuals have long argued (and some government reports and private studies have even concludedREF) that the psychoactive ingredient in cannabis has an analgesic effect for some types of pain,REF so too does the ethanol in Wild Turkey, which we do not classify as a medicine.REF Studies reveal that the hoped-for pain-relieving effect of cannabis has not panned out.REF Finally, the nation’s opioid overdose epidemic has metastasized into its third stage. What began as overreliance on prescription opioids transitioned into the use of illegal narcotics, like heroin, and finally became a resort to illegal drugs cut with extraordinarily more powerful painkillers, like fentanyl.REF Liberalized cannabis laws, even if they might have been helpful years ago as an alternative to opioids, are not a reasonable response to the opioid problem today.

That should come as no surprise. Cannabis is an insufficiently potent analgesic to mollify the severe acute pain caused by surgery, gunshot wounds, late-stage cancer, motor vehicle crashes, and similar illnesses and events.REF Neither cannabis nor any other drug can match the acute pain-killing effectiveness of opioids.REF Cannabis also is not a proven therapeutic substitute for, or complement to, opioids (or other drugs) in the treatment of chronic pain, for several reasons:

First, there is insufficient evidence to support the claim that marijuana is a safe and effective analgesic for chronic pain. Second, states with liberal marijuana laws should have seen a decline in opioid overdose deaths, but that has not been the case. Third, individuals using marijuana for pain relief should have shown a reduction of or stoppage in opioid use, but evidence indicates that they have continued to use or even increased opioid use. And fourth, the concomitant use of marijuana and opioids conceivably interferes with treatment for opioid use disorder.REF

In sum, people who use both drugs do not reduce their intake of opioids,REF and the combination of the two makes it more difficult for patients to terminate opioid use through drug treatment.REF Accordingly, cannabis is not a substitute for opioids. Using the two in combination only harms people already suffering from opioid use disorder, and cannabis can harm users in other ways.REF

Consider a 2019 study on this issue.REF The authors found that states with medical cannabis programs had an increase in opioid deaths.REF That is, the study saw a 22.7% increase in overdose deaths for states with a medical cannabis program.REF As the result, cannabis laws are not the answer to today’s opioid problem. As two commentators have put it:

[P]olicies that may have been effective in the early years of the opioid epidemic are no longer successful in reducing the number of overdose deaths. Mortality rates have not only grown faster in recent years than in the 2000s, but also the type of opioids most commonly associated with overdose deaths has shifted from prescription opioids to heroin and more recently to synthetic opioids such as fentanyl. In this evolving public health crisis, it is therefore crucial to re-evaluate policy responses.REF

III. Remedies for the Problem of Drug-Impaired Driving

Numerous parties are aware of this problem, have studied it, and have sought to develop responses to it. The National Highway Traffic Safety Administration of the Department of Transportation, the Office of National Drug Control Policy, the Governors’ Highway Safety Association, private organizations such as the American Automobile Association, the National Alliance to Stop Impaired Driving, the Institute for Behavior and Health, and the Insurance Institute for Highway Safety—those and other public and private entities are troubled by drug-impaired driving and are working to minimize its harmful consequences. I am confident that all of those entities would be willing to continue to work today with South Carolina in any such inquiry that the General Assembly would direct.

The legislation before the General Assembly recognizes the problem of drug-impaired driving. Several provisions in Sections 3 and 5 of S. 150 acknowledge the risks that passage of this legislation would have:

  • A prescribing physician must complete and sign a form prepared by the South Carolina Department of Health and Environmental Control (Department) in which he or she attests to admonishing his or her patient that “qualifying patients must not drive or operate heavy machinery while under the influence of medical cannabis. Proposed § 44-53-2080(A)(3)(g).
  • An applicant for medical cannabis identification card must attest that he is not employed in any occupation that requires a driver’s license, charter boat license, or pilot’s license, or the operation of heavy machinery. Proposed § 44-53-210(A)(7)(b)((iii)-(v).
  • The Department may not issue a medical cannabis registry identification card to anyone who is employed in or contracted to work for any job requiring a driver’s license, charter boat license, or pilot’s license, or the operation of heavy machinery. Proposed § 44-53-2130(D(1)(c)-(e).
  • A qualifying patient must notify the Department and “surrender his registry identification card before starting any job or contract” requiring a driver’s license, charter boat license, or pilot’s license, or the operation of heavy machinery. Proposed § 44-53-2180(A)(5)(c)-(e).
  • The medical cannabis program “does not authorize any person to engage in, and does not prevent the imposition of” civil, criminal or other penalties for “operating, navigating, or being in actual physical control of any motor vehicle, aircraft, train, or motorboat while under the influence of cannabis.” Proposed § 44-53-2230(A)(3).
  • Nothing in the medical cannabis law “may be construed to prevent the arrest or prosecution of a qualifying patient for reckless driving or driving under the influence of cannabis products if probable cause exists.” § 44-53-2230(b).
  • Cannabis may not be kept in an “open container” in “a motor vehicle of any kind while located upon the public highways or highway rights of way of this State.” Proposed § 44-53-2235.
  • Nothing in the medical cannabis law would require an employer to “permit or accommodate any applicant or employee’s use of or impairment by medical cannabis,” or prohibit a private employer from adopting a “drug-free workplace policy or zero tolerance drug testing policy” barring any applicant or employee from having a detectable amount of cannabis metabolites in his or her system. Proposed § 44-53-2265(A).
  • The medical cannabis law would make it a misdemeanor for a “driver of a motor vehicle” to “vaporize cannabis products . . . while operating” that vehicle. Proposed § 56-1-3910(A).

That is a good start, but there is far more that South Carolina can and should do today to address this problem before legalizing medical cannabis. There are (at least) four separate areas that need attention and improvement:

  • Obtain Statewide Information Regarding the Incidence of Drug-Impaired Driving: To my knowledge, we currently do not know the extent of the drug-impaired driving problem in South Carolina. Part of the reason, of course, is that cannabis possession is presently an offense under state law, and few people in the Palmetto State (or elsewhere) readily and openly confess to committing a crime. Moreover, drug testing is both expensive and time consuming, so most state and local law enforcement officers do not have a driver tested for psychoactive substances if he or she has a Blood Alcohol Content above the level set by South Carolina law. There are ways to acquire the type of information that the General Assembly should know, such as by authorizing and funding pilot programs to all drivers or some rationally arbitrary number of drivers (e.g., every fourth or fifth car) in particular locales to ask them whether they have consumed cannabis and use oral fluid testing to corroborate or undermine their responses.
  • Train Law Enforcement Officers to Recognize Potential Drug-Impaired Drivers: Enhanced law enforcement training is necessary because the Standard Field Sobriety Tests used to determine whether a driver is under the influence of alcohol—such as the One-Leg Stand or the Walk-and-Turn—do not work well to determine whether a driver is intoxicated by drugs, because that test was not created with drugs in mind. We also lack a reliable, portable, inexpensive means of testing drivers for their use of cannabis (or other intoxicating drugs) comparable to the Breathalyzer widely used to measure a driver’s Blood Alcohol Content. There is an alternative program known as the Drug Recognition Expert Program, but it also requires training of law enforcement officers beyond what they would receive in their basic school.
  • Use Roadside Oral Fluid Testing to Determine Whether A Driver Should Be Subjected to Blood Testing: A police officer can stop a vehicle if the officer has a reasonable suspicion that the driver may be under the influence of alcohol or drugs by relying on his observations of behavior suggesting that the driver is operating under the influence of alcohol (such as aggressive driving) or cannabis (such as having difficulty remaining in the driver’s lane without swaying sideways). Oral fluid testing can be used to determine whether there is probable cause to detain the driver for the purpose of conducting a blood test. Both on-scene oral fluid tests and laboratory blood tests costs money and time, but are necessary to prosecute a driver for operating a motor vehicle while drug-impaired.
  • Enhance Education and Treatment Opportunities: Not every offender needs to be prosecuted to the full extent of the law, even ones who have driven while drug impaired. It is important to consider whether efforts at the front and back ends of the process should be undertaken as well. Public education regarding the potentially impairing effects of a variety of even legally prescribed medications is necessary to apprise both legitimate patients and unsophisticated users of the risks of driving after consuming certain drugs. Treatment, while it comes after the fact, might also be far more cost-effective than simple incarceration. That treatment can be done in conjunction with the criminal justice system. Treatment under the South Dakota 24/7 Sobriety Program, the Hawaii Opportunity Probation with Enforcement, or the Swift, Certain, and Fair initiative operate on the principle that the certainty and celerity of punishment is more important than its severity. The use of random, frequent alcohol or drug testing to determine whether an offender has violated a condition of probation, with immediate but potentially increasing periods of confinement for probationers who test positive.REF

Those are general areas of concern. How, then, should South Carolina specifically address the drug-impaired driving problem? Below is a list of specific, reasonable policies that would do so.

  • Proposal: Apply to every driver under age 21 who tests positive for any illicit or impairing drug, including cannabis and impairing prescription drugs, the same zero-tolerance standard specified for alcohol, the use of which in this age group is illegal.
  • Proposal: Apply to every driver found to have been impaired by drugs, including cannabis, the same remedies and penalties that are specified for alcohol-impaired drivers, including administrative or judicial license revocation.
  • Proposal: Test every driver involved in a crash that results in a fatality or a serious injury (including injury to pedestrians) for alcohol and impairing drugs, including cannabis.
  • Proposal: Test every driver arrested for driving while impaired for both alcohol and impairing drugs, including cannabis.
  • Proposal: Require state and local law enforcement officers to use reliable oral fluid testing technology at the roadside for every driver arrested for impaired driving.
  • Proposal: Collect data on all crashes in which cannabis is suspected to have contributed to the crash and report that data to NHTSA and the public.
  • Proposal: Require hospitals, emergency care, and related facilities to collect/collate/publish alcohol/drug/polydrug data.
  • Proposal: Create a database collecting the information for alcohol- and drug-impaired driving arrests and convictions that is accessible by state and local law enforcement officers and transmit that information to the FBI for its NCIS database.
  • Proposal: Require that every person applying for a driver’s license and renewing a past license to be informed of all prescription drugs that can impair driving, as well as all illicit drugs.
  • Proposal: Implement a “24/7 Sobriety” or similar program.
  • Proposal: Require that the state’s DWI recordkeeping separately classify alcohol, drugs, and polydrug use.
  • Proposal: Lower the Blood-Alcohol Content Threshold from 0.08 g/dL to 0.05 (or lower) for every driver who has consumed cannabis.
  • Proposal: Fund pilot projects in various districts to determine how many people are driving while impaired by drugs or alcohol.
  • Proposal: Improve the training for state and local law enforcement officers necessary to recognize drug-impaired drivers.

Polydrug use is sufficiently common today that the states should test every driver involved in a crash, particularly one involving a fatality, not only for alcohol but also for legal and illegal impairing drugs. Moreover, all 50 states fix 21 as the minimum drinking age and the minimum age for recreational cannabis use. It therefore makes sense that states should apply to everyone under that age who tests positive for any illegal drug use whatever administrative penalty the states impose for underage drinking and driving. Colorado and Washington have attempted to collect and report the data reflecting the consequences of the legalization schemes in those states. Other states, including South Carolina, should do the same. That is particularly important in the case of cannabis legalization, because of the dramatic changes that we have seen since California first legalized medical cannabis in 1996. Where a state has changed its laws to allow cannabis to be used for medical or recreational purposes, that state has an obligation to its residents—and anyone else who uses the state’s roadways—to inform the public whether liberalization has increased the risk of grave bodily injury of death whenever they drive.

I previously have argued that states with medical or recreational cannabis programs should lower the BAC standard for alcohol.REF That approach would not address the risk that cannabis use alone poses to highway injury or death, but it could help lessen the number of crashes caused by a cannabis-alcohol cocktail. I continue to believe that we should not let the perfect be the enemy of the good and that saving some lives is better than saving none. I am aware of the powerful opposition that the national alcoholic beverage industry, as well as state local drinking establishments, would bring to bear against any such proposal. Yet, I do not believe that trying to keep some impaired drivers off the road by lowering the BAC level for alcohol is just tilting at windmills. At a minimum, forcing opponents of this option to justify their position would enhance the public discourse over drug-impaired driving, because there is value in forcing someone to articulate an unpersuasive argument.

IV. South Carolina Should Act Now to Prevent and Ameliorate the Injuries and Deaths that Will Result from Crashes Caused by People Who Consume Medical-Use Cannabis and Drive

For decades now, the nation has sought to lower the carnage caused by people who “have had one too many” and get behind the wheel of a car. Generally, public and private efforts to stop drinking and driving have successfully driven down the number of alcohol-caused crashes. Legalizing cannabis for medical use will lead to an about-face in that effort. There will be an increase in cannabis use, some of those users will decide to drive, and some drivers who are “one toke over the line” will injure or kill innocent passengers, pedestrians, or other drivers. Legalizing medical cannabis use without also acting to prevent or ameliorate that problem would be irresponsible.REF South Carolina should not consider legalizing medical-use cannabis unless and until it also takes the necessary steps to prevent or ameliorate the harms that will necessarily follow from legalizing use of a new psychoactive substance even for limited medical purposes.

Conclusion

Thank you for the opportunity to submit this written statement.

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Authors

Paul Larkin
Paul Larkin

Rumpel Senior Legal Research Fellow