For some time, we have been watching the development of roadside saliva drug testing for people suspected of driving under the influence of controlled substances like marijuana or cocaine. Two pieces of legislation passed this summer provides for a roadside drug testing. Also, the new law empowers police to take immediate action in accord with the test results.
The New Legislation
The testing method detailed in the new statutes utilizes specially trained officers -drug recognition experts- to administer a saliva test. This test provides an instant [but debatable] roadside result.
A positive saliva test provides the officer with authority under the law to execute a warrantless arrest. A positive test puts you in the hospital for a blood test via the county jail.
One of the new laws, public act 0242, outlines a procedure for a one-year pilot program for saliva drug testing. The Michigan State Police will announce the pilot program for 5 counties in a few weeks. Subject to funding, the tests commence in October.
Operating a vehicle under the influence of alcohol or drugs is illegal in Michigan. In the case of alcohol, a breathalyzer device provides preliminary but court-inadmissible evidence of a driver’s blood alcohol content. This new saliva test is meant to be analogous to the ubiquitous breathalyzer.
Consider the Senate Fiscal Agency’s rationale for the new tests:
The Michigan Vehicle Code prohibits the operation of a motor vehicle upon a highway or other place open to the general public or generally accessible to motor vehicles by a person who is under the influence of, or is visibly impaired by, the consumption of alcohol, a controlled substance, or other intoxicating substance, or a combination of those substances. The Code also prohibits a person from operating a vehicle if he or she has in his or her body any amount of a Schedule 1 controlled substance or cocaine. (Schedule 1 includes substances that are considered to have a high potential for abuse and no accepted medical use in treatment in the United States or lack accepted safety for use in treatment under medical supervision.)
Although Michigan law authorizes law enforcement officers to administer a preliminary chemical breath analysis to determine the presence and level of alcohol in a person’s body, and provides for the admissibility of the results of that analysis in criminal and administrative proceedings, there has been no statutory authorization to administer and rely on a roadside preliminary test to detect the presence of a controlled substance in a driver’s system.
Just who are these Drug Recognition Experts [DREs] that will be interacting with drivers this fall? What is the margin of error for these saliva tests?
Margin of Error
In the case of alcohol, technology has improved the accuracy of the breath tests. Nevertheless, both the roadside PBT and the breathalyzer devices remain subject to error.
Measuring a person’s blood alcohol level requires certain assumptions. Significant variances exist among individuals. These variables include: differences in barometric pressure at the testing location; the machines require proper calibration; and the person administering the test must have thorough training. Although often challenged, courts routinely admit datamaster results frequently leading to convictions.
Unlike alcohol, with its unique physical characteristics, there was no reliable roadside test for marijuana. The requisite blood-draw occurs in a hospital; roadside blood tests are not available. Saliva drug testing provides police with a detection tool utilized at the roadside. Recently, criminal defense lawyers voiced concerns that the roadside saliva test has been rushed into production. Defense lawyers claim that saliva drug testing has yet to be scientifically validated.
We Can Help
If you or a family member are subjected to a saliva drug test resulting in criminal charges, give our law firm a call to schedule a free consultation.