DUID—Driving under the influence of Drugs just took a Turn: NMA E-Newsletter #394

Michigan Governor Rick Snyder signed into law last month a plan that allows state police to implement one of the most invasive methods of drug testing in the country all in the name of a pilot program:  saliva swab tests.

Michigan drivers from 5 counties (yet to be determined) will be the experimental rats so that law enforcement can determine accuracy and reliability of the tests.  As of this date, there is little information on how these tests will be conducted beginning later this year.

In the recent U.S. Supreme Court ruling on DUI testing for breathalyzer and blood tests, SCOTUS ruled that a breathalyzer was okay to test a suspected drunk driver without a warrant because a person cannot own air but a coerced blood test was another matter.  Blood belongs to a person and a blood draw cannot be coerced without a warrant.

Currently in Michigan and elsewhere, trained Drug Recognition Experts or DRE Officers are the only ones who can conduct the DUID saliva tests.  Michigan currently has 99 DRE officers for 37 of its counties.  The saliva swab test would be used by the DRE officers in addition to the drug recognition 12-step evaluation currently used by Michigan law enforcement.

According to the Governors’ Highway Safety Association or GHSA Booklet called DRUG-IMPAIRED DRIVING, A GUIDE FOR WHAT STATES CAN DO, DUID laws are enforced similarly to a DUI.  They both begin the same way.  A driver is stopped for a traffic law violation or at a checkpoint.  The officer observes the driver’s behavior and other signs such as the odor of alcohol or marijuana, or the presence of beer bottles, drug paraphernalia, etc.  Alcohol and drugs differ though in the behavioral signs of impairment.

Alcohol:  slurred speech, poor balance, odor
Depressants:  slurred speech, drowsy, disoriented
Cocaine:  hyperactive, alert, talkative, irritable, nervous or anxious
Marijuana:  tremors, incomplete thoughts, odor

Alcohol testing is always first using the field sobriety test or the Breathalyzer.  The GHSA booklet states that prosecuting a DWI, DUI or OWI charge and obtaining a conviction are far easier and cheaper than for a DUID.   If a driver is found to have both drugs and alcohol in his or her system, prosecutors are more likely to just go after the DWI conviction since a DUID conviction is so difficult to win. For one thing, a good saliva or oral fluid device to test for the presence of key drugs are not yet of evidential quality apparently.  Also, judges and juries usually don’t understand the behavioral differences between impairments of alcohol or drugs.

What if you are taking a legal prescription that might contain a drug that the saliva swab test can detect?  For example, you have ADHD and take Adderall (which has an amphetamine-salt combo) to help you concentrate on driving.  If you are forced to take the saliva swab test at a checkpoint because all other drivers are being tested, the test would indicate you have drugs in your system and you are DUID.  Can you imagine what the cost to you as a person in time, money and inconvenience would be to prove that you were taking a legally prescribed drug at the time of the screening?

According to the GHSA booklet, research is currently underway (and won’t be available for a number of years) on a portable breath testing device that could detect only a few key drugs including marijuana.  This again would be a breathalyzer test that would probably not require a warrant and would be a gateway to obtain a warrant for more intrusive testing.  Even if you were not high at the time of driving, remember marijuana and other drugs can stay in your system up to 48 hours after use.

Of course, the NMA thinks that taking a swab test of one’s saliva without a warrant is a violation of the 4th Amendment.  Currently, the new Michigan law has not indicated whether or not law enforcement will need a warrant to obtain a check swab.  Nor does the law state what happens when a citizen refuses to take the saliva swab test.  If you refuse to take a DUI Breathalyzer test in New York for example, you immediately are arrested and will have your driver’s license suspended for six months.  The saliva swab test though is not a breathalyzer and should be classified on the same level as a blood test since one’s saliva is unique to a person.

To find out more information, check out the National Motorists Association Guide on HOW TO PROTECT YOUR RIGHTS DURING A DUI TRAFFIC STOP.

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