[Note: This report has not been updated to reflect the July 1999 change in the law in California.] "Possess a Joint, Lose Your License":July 1995 Status ReportMillions of Americans can now lose their driver's licenses for at least 6 months if convicted of any drug offense, even if it did not occur in the proximity of a vehicle. These "possess a joint, lose your license" laws have been promoted by prohibitionists since the late 1980s. Many states have enacted such laws in response to a threat by the federal government to reduce highway funding; other states have enacted similar laws voluntarily. Presently, at least 30 states, Puerto Rico, and the District of Columbia have implemented some form of these laws. This report provides a history and overview of such laws and compares them to license suspensions for driving under the influence (DUI) of alcohol and/or controlled substances. History and Overview [1]Radical prohibitionists in the federal government have long been bothered that small-scale marijuana offenders do not typically receive severe criminal sanctions in most states. For nearly 20 years, possession of a small amount for personal use has carried a maximum penalty of a small fine (usually about $100) in 10 states. In the states where simple possession of marijuana remains a crime (usually carrying a maximum penalty of about six months in prison), very few first-time, nonviolent offenders receive more than a fine and probation. The Reagan/Bush drug wars stressed "zero tolerance" for all drug offenses. The Bush administration's 1989 National Drug Control Strategy (NDCS) argued that recreational marijuana users serve as "advertisements" for drug use and that such use is "highly contagious." The 1989 NDCS discussed several innovative techniques designed to punish marijuana users instead of, or in addition to, sending them to prison. One such recommendation was to punish "persons caught using or possessing even small amounts of drugs," through the "suspension of [their] driver's licenses for 1-5 years." The obstacle for federal prohibitionists was that driver's licenses are issued by the states. The federal government had no way to mandate that the states suspend marijuana consumers' driver's licenses. By 1990, two federal prohibitionists had discovered a way to coerce the states to enact such "possess a joint, lose your license" legislation. The federal Highway Trust Fund allocates over $10 billion per year to the states for use in highway construction and maintenance. Presently, there are at least 16 different guidelines — such as establishing federally determined minimum drinking ages and maximum speed limit laws — with which the states must comply in order to receive the maximum amount of their potential federal highway funds. U.S. Rep. Gerald Solomon (R-New York) and U.S. Senator Frank Lautenberg (D-New Jersey) added the "Solomon-Lautenberg amendment" to the 1991 Department of Transportation and Related Agencies Appropriations Act (passed in 1990). The law now mandates that a state (or territory) lose a certain percentage of its allotted highway funds unless:
(The 6-month suspension is in addition to other potential criminal and civil penalties, such as prison, fines, and property forfeiture.) After several modifications of the law [3], it was established that states not in compliance by October 1, 1994, would lose 5% of their annual federal highway funds for fiscal years 1994 and 1995; states not in compliance by October 1, 1995, would lose 10% per year thereafter. According to the U.S. Department of Transportation, as of October 1, 1994, the District of Columbia, Puerto Rico, and all 50 states were in compliance — 21 by passing the license-suspension legislation, 31 by officially opting out. Out of the 31 states that passed opt-out resolutions, 11 passed similar license-suspension laws anyway. (See chart and map for details.) The major arguments against such license-suspension legislation are as follows:
Many of the above arguments were used successfully in the states that opted out. Presently, the Marijuana Policy Project has copies of the resolutions for only a few of the opt-out states, though efforts are underway to gather all of them: Because the staff at the U.S. Department of Transportation is refusing to provide the MPP this information, the MPP is filing a Freedom of Information Act request as well as asking a sympathetic congressional office to obtain this information on behalf of the MPP. It is difficult to verify many of the predicted detrimental consequences of the license-suspension legislation, as states rarely maintain records of such information in a thorough, specific, detailed, timely, and usable manner. Nevertheless, it would behoove opponents of these laws to attempt to gather and analyze such data for at least a sampling of states, preferably including large, decriminalized states like California and New York. California's and New York's license-suspension laws will sunset later this year. Because each of these states' legislatures must pass either an opt-out resolution or a new license-suspension law before their current license-suspension laws expire (or else lose federal highway funding), it is important to focus energy on these two states in upcoming months. Additionally, perhaps enough compelling evidence can persuade other states to repeal their license-suspension laws and instead opt out. Perhaps Congress can be persuaded to repeal the license-suspension provision of the Highway Transportation Appropriations Act, as there is presently a move to give states more autonomy in establishing their own speed-limit and helmet laws. Such a repeal would make it easier for states like California and New York to avoid passing new license-suspension laws and for other states to drastically modify their "possess a joint, lose your license" laws, e.g., reducing the duration of the license suspension to three months. Another option is using the courts to eliminate these laws. In Massachusetts, the American Civil Liberties Union sued the state on behalf of several plaintiffs who lost their jobs because their driver's licenses were suspended following marijuana-possession convictions. On July 27, 1992, the state Supreme Court ruled unanimously that the Massachusetts law, implemented in June 1990 (several months prior to the Solomon-Lautenberg amendment), is constitutional, as it does not impose double-jeopardy, violate due process, or deny equal protection. One example of a positive court ruling follows: On August 31, the Court of Appeals for Montgomery County, Ohio, dismissed an appeal of the Court of Common Pleas ruling in Ohio v. Gowdy which held that mandatory driver's license suspensions for drug offenses was unconstitutional. The Court of Common Pleas ruled that such license suspensions violate the Fourteenth Amendment "due process" protections, as the suspensions do not bear a reasonable relationship to the purpose of providing for the safe and legal operation and ownership of motor vehicles [No. 94-CR-9/1, April 26, 1994]. Because the case was decided by a lower court, the impact may not be of major significance. Nevertheless, there has yet to be a lawsuit against the federal government on the grounds that the U.S. Department of Transportation should not be able to withhold funds from states for not enacting laws that have nothing to do with public safety. The federal law mandating a reduction of highway funds for states not adopting a minimum drinking age of 21 (23 USC 158) was challenged to the U.S. Supreme Court at least twice on constitutional grounds, and it was upheld both times. However, the challenges were not based on the public-safety argument. State-by-State InformationThe enclosed chart contains the following information for each state, the District of Columbia, and Puerto Rico, when applicable:
Each state falls into one of four categories:
The specifics vary greatly, especially among the states that complied with the federal mandate by officially opting out. One of the opt-out states (Utah) has enacted a law that appears to meet the Solomon-Lautenberg criteria. Though the MPP is still in the process of gathering all of the opt-out resolutions, we speculate that the opt-out states that also have "possess a joint, lose your license" laws resented the federal government's highway fund-extortion scheme but agreed that such license-suspension laws are a good idea. We know this to be true for Kansas, for example. At least 10 additional opt-out states have laws that provide for a driver's license suspension for certain drug crimes but do not match Solomon-Lautenberg criteria. Their laws and the peculiarities thereof are enumerated in the chart. However, the MPP has generally not compiled DUI information for these states, as they are unique cases and including their DUI-suspension laws would not lend much to the overall comparison. Finally, the chart lists the opt-out states with no "possess a joint, lose your license" laws as of the printing of the most up-to-date state codes available in the Library of Congress (generally 1994 or 1995, but in some instances 1993). It is possible that some states have enacted or revised the laws subsequent to the printing of the most recent code books. More importantly, the accuracy of the chart regarding the opt-out states must be considered with caution: The placement and indexing of the statutes varies among states, making the relevant laws relatively easy to locate for some and very difficult for others. It is possible — though unlikely — that some opt-out states listed in the chart as having no relevant laws might actually have such laws buried in an obscure, poorly indexed section of the state code. For simplicity's sake, most related provisions and other nuances are not necessarily included in the chart. Nevertheless, the following three sections are intended to give an overview of the other types of issues frequently involved:
Drug/Controlled Substance OffensesAge. Many states mandate driver's license suspensions for people under 21 years of age who are convicted of any drug or alcohol offense — even states with no "possess a joint, lose your license" provision applicable to people 21 and older. Severity of offense. Most states' license-suspension laws provide the same duration of suspension for all controlled substance offenses — from selling heroin to possessing a marijuana pipe. However, a few differentiate and mandate a more lengthy suspension for anything other than simple possession of marijuana. The chart contains the duration mandated for such marijuana possession only. Involvement of vehicle. Some states provide additional penalties when the controlled substance offense occurs in a vehicle. These are enumerated in the chart only in the case of opt-out states wherein license suspensions may only be imposed under these circumstances. DUI. It is a crime in nearly every state to drive under the influence of a controlled substance. The definitions and penalties are typically provided in the DUI-of-alcohol sections. The penalties, including the duration of license suspension, are usually the same for DUI of alcohol and of controlled substances. However, the procedures used to determine whether someone is driving under the influence of a controlled substance are not well-established. Previous offenses. The duration of license suspensions gets progressively longer for subsequent drug offenses within a certain time frame (usually the past seven years or so). Professional and commercial licenses. Many states suspend the professional licenses (e.g., law, medicine) of people convicted of certain drug crimes. Most states (including many opt-out states) suspend the licenses to drive commercial vehicles (e.g., large trucks, taxis) of people convicted of drug crimes, especially when the use of a vehicle is involved. Though similar, there are different issues, procedures, and rationales involved in such license suspensions, so they have not been included in this report. "Addicts" or "habitual users". Almost every state has a long-standing clause prohibiting "alcoholics," "drunkards," "drug addicts," "habitual drug users," and/or other such loosely defined individuals from obtaining or holding driver's licenses. Such provisions are generally not included in this report. (Ironically, it seems that these provisions could have been creatively applied all along to revoke the driver's licenses of drug criminals. Perhaps the wording was not specific enough for routine application.) Driving Under the Influence (DUI) of Alcohol and/or Controlled SubstancesBlood-alcohol level. Breath, blood, and/or urine tests are used to determine the percentage of alcohol in the blood. The prohibitive level (constituting DUI) is usually either .08% or .10% (approximately two to four beers ingested in one hour), depending on the state. In many states, lesser charges may be levied if a person registers .05% (approximately one to two beers ingested in one hour). More severe charges often apply if a person exceeds an even higher level, such as .15%. Age. Persons under a certain age — usually 21 — may be found guilty of DUI even with a relatively low blood-alcohol level, such as .02%. Implied consent. A person with a driver's license is generally assumed to have given consent to a breath, blood, and/or urine test at the discretion of an officer of the law. If a person refuses anyway, there is typically an automatic driver's license suspension. Probation; treatment programs. In many states, the penalties can be reduced — often waiving the criminal record — if a person can successfully complete a period of probation, including a treatment program. Driver's license suspensions are often part of this. Penalty enhancements. The following factors can enhance the severity of the offense and/or penalties, including the duration of the license suspension:
Immediate (but temporary) suspensions, pending plea or conviction. In many states, a person's driver's license is immediately suspended upon arrest for DUI. This is temporary, intended to keep the person off the road pending the verdict. It is important not to confuse the duration of the immediate suspension with that applicable to someone found guilty of DUI. Applicable to Both Drug/Controlled Substance Offenses and DUIForfeiture. In some instances, a person's vehicle can be seized and forfeited to the government for its involvement in certain offenses. Driving without a license. Serious charges commonly apply to individuals who are caught driving without a license. Consequently, for many people a driver's license suspension is the beginning of a slippery slope which eventually leads them to prison — this would likely be the case for many people who have their driver's licenses suspended via the "possess a joint, lose your license" law. Not yet licensed. States typically have provisions whereby someone whose penalty includes a driver's license suspension but is unlicensed at the time must forgo obtaining a license for a specified period when he or she eventually decides to apply. Getting license back. Once the period of suspension is over, the person rarely is simply given back the license. Complicated paperwork and filing fees are often required. In some states, people must meet other criteria, such as completion of a drug- or alcohol-education/treatment program, to become eligible to reapply for a driver's license. Hardship exceptions. Many states allow people who meet certain criteria to obtain special permission to drive to and from work, school, etc., while their licenses are suspended. Footnotes:
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