Michigan Police Consider Using a Portable Drug Test for Suspected Drivers – Is it Reliable?

GetThumbnail.aspxWhen a police officer suspects a person is driving under the  influence of alcohol they will generally administer a preliminary breath test (PBT) at the site of the traffic stop. The results usually determine whether the suspect gets arrested. The PBT provides an objective and usually reliable breath alcohol content from which the officer will make an arrest decision. It is seen as a significant useful tool for DWI enforcement. But, the PBT only works with alcohol, not with drugs.

The use of medications that could possibly impair a driver is widespread. The increase of drug impaired driving, especially involving marijuana has prompted a demand for a roadside test for drug impaired driving suspects similar to a PBT. The newest tool currently being experimented with law enforcement all over the country is an Oral Fluid Collection device (OFC). An OCF is supposed to collect a saliva sample from a suspected driver and identify the presence of a drug. Proponents of these devices say that it is accurate and reliable as much as urine or blood. Others say the science has a long way to go before widespread use in law enforcement.

Just like a PBT there must be a waiting period before its use. This means the operator must wait at least 10 minutes between contact with the suspect and administering the test. The waiting period assures a pure sample without anything being placed in the mouth cavity immediately beforehand. Then, the device will collect a saliva sample from a suspect’s mouth with a long tube with an absorbent material at the end. The result is supposed to specifically identify a drug that was recently ingested by the subject. Some designs actually  produce a number corresponding to the concentration of the drug detected; others do not.

Unlike an alcohol PBT, the drug test will take up to 10 minutes to obtain a result. This is a significant amount of time. A PBT provides an immediate result. According to the Constitution, an officer may only detain a person for an investigation for a reasonable amount of time. Defense attorneys will surely argue that 10 minutes exceeds the amount of time that is reasonable. This issue demonstrates a certain flaw in this testing device.

The Draeger Drug Test 5000 may be the most popular OCF and is already in use in several cities including Los Angeles. It tests for seven types of the most commonly abused drugs. It utilizes competitive immunoassay technology which uses an antigen to detect the presence of the particular drug (antibody) tested for. The Drager uses absorbent test strips that contain the antibody. The saliva sample placed on the end of the strip. Each drug will be labeled so when the drug antibody binds with something it gives off a detectable color. If there is no drug present the sample will bind with a “conjugate” or alternative to the antibody and the strip will display a red line. This is the “competitive” nature of the science. The less the sample binds with the conjugate the more a drug is detected therefore creating an inverse relationship with the response.The instrument utilizes a LED light source as a detector. It will measure the amount of the color detected by the reaction.

Another problem exists when another substance which is not a drug has a similar chemical structure which would bind to the antibody thus creating a false positive also known as cross reactivity.

Additionally, it remains doubtful that the device can identify a driver that is impaired by marijuana. Therefore, if a driver has a Medical Marijuana Card, the presence of marijuana in their system is not enough to make an arrest. There must be evidence of actual psychomotor impairment. An OCF will not be able to make that determination and thereby ineffective on combating drugged driving related to cannabis.

In March of 2015 Michigan State Senator Rick Jones introduced SB 207 and SB 434 which introduced a roadside drug testing pilot program. The one year program is proposed to begin in five counties in the state selected by the Michigan State Police. The program states that a properly trained Drug Recognition Expert (DRE) who has reasonable cause to believe that a person was operating a vehicle after being impaired by a controlled substance may require that person to submit to a “preliminary oral fluid analysis” test. The results of that analysis would be admissible in a criminal prosecution as evidence of a lawful arrest. Failure to submit to the test would be civil infraction. This bill passed the Senate on January 20, 2016 at which point it was moved to the House.

The Michigan House Judiciary Committee held a hearing and received testimony about the devices on February 9, 2016. Michigan State Police Sgt. Perry Curtis, Ken Stickler from the Prosecuting Attorneys of Michigan and others testified in support of the bills. Noah Smith representing the Criminal Defense Attorneys of Michigan (CDAM) took a neutral position on the bills. Bob Redden representing the Michigan Medical Marijuana Association testified in opposition to the bills. The hearing was adjourned without a vote until a later date.

The proposal seeks to purchase five devices at $6,000 each. Each test would cost about $25.

Attorney Morris has enjoyed a very successful and distinguished career as a trial lawyer providing high quality legal representation in the area of state and federal criminal defense for 19 years. He is known for his trial preparation by fellow attorneys, judges and clients alike. As a trial attorney, he is dedicated to attaining justice in every case, and is prepared to take on complex legal issues with success. Barton and his law firm pride themselves on obtaining results for their clients that other attorneys cannot. Not only does Barton Morris have extensive experience, he also engages in continuing legal education to provide the highest quality legal services. Barton has received specialized scientific training through the American Chemical Society. He attended the prestigious Trial Lawyers College and serves on its Alumni Association Board of Directors. Barton Morris is also a board member of several distinguished legal associations including the Michigan Association of OWI Attorneys, and the DUI Defense Lawyer’s Association Justice Foundation. He is also an active member of the National Association of Criminal Defense Attorneys and has also graduated from their National Criminal Defense Trial College in Macon, Georgia. Barton Morris was chosen as a Top Lawyer of Metro Detroit for 2012, 2013 & 2014 for DUI/DWI and criminal defense by DBusiness Magazine and Hour Magazine. Barton Morris was also chosen as a Super Lawyer in Criminal Defense for 2014-2017 and Barton Morris is the only Lawyer in Michigan designated by the American Chemical Society as a “Forensic Lawyer-Scientist”
February 21st, 2016|