19 Published in Criminal Justice, Volume 36, Number 3, Fall 2021. © 2021 by the American Bar Association.
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Constitutionality of State Zero
Tolerance and Per Se Laws
BY RICHARD A. GINKOWSKI
The past 50 years have seen progressive
refinements of laws dealing with people who drive
after consuming alcohol and/or drugs. Enormous
carnage on the nation’s highways and lobbying by
groups such as Mothers Against Drunk Drivers (MADD)
prompted legislatures to enact both stricter penalties
and easier evidentiary thresholds for prosecutors to
prove offenses. Notably, the “legal limit”—the amount
of alcohol in a person’s system at which he or she is
considered too impaired to lawfully operate a motor
vehicle—has been lowered, and there is evidence that
these laws, combined with greater public awareness of
the dangers of drinking and driving, have resulted in a
significant decline in alcohol-related traffic fatalities. The
National Highway Traffic Safety Administration (NTHSA)
reported 36,096 traffic fatalities in the United States in
2019, of which 10,142 (28 percent) were alcohol related.
Nat’l Highway Traffic Safety Admin., Overview of Motor
Vehicle Crashes in 2019, at 13 (Dec. 2020).
“Drunk” drivers, however, aren’t the only threats
to public safety on the roads. In Colorado, where
recreational marijuana use became lawful under state
law in 2014, the state transportation department
reported that 13.5 percent of the traffic fatalities in
2018 involved a driver who tested positive for delta-9-
RICHARD A. GINKOWSKI, president of the Wisconsin
Municipal Judges Association and municipal judge for the Vil-
lage of Pleasant Prairie, Wisconsin, is a member of the Criminal
Justice editorial board, chair of the education committee of the
National Conference of Specialized Court Judges, and producer/
host of Gavel Talks, the ABA podcast for judges. He may be
reached at dick.ginkowski@gmail.com.
One Toke over the Line—
Marijuana and Driving
