On June 7th, 2020, Gov. Gretchen Whitmer extended the pilot program for roadside drug testing through Senate Bill 718. First introduced in late 2017, the roadside test uses saliva to detect the presence of amphetamines, benzodiazepines, cannabis (delta 9 THC), cocaine, methamphetamines and opiates.
However, there are some notable faults with the program, which can result in unfair arrests and subsequent convictions.
What is Roadside Drug Testing?
Roadside Drug Testing is similar to the breath test, which all are familiar with that test for alcohol intoxication. The Oral Fluid Test tests for the presence of controlled substances in a driver.
Roadside drug testing is a natural progression in policing necessitated, primarily, by the legalization of marijuana, and the real or perceived increase in drivers impaired by controlled substances on Michigan roads. However, there is very little evidence to support an increase in drugged drivers or impairment from marijuana on driving.
How Does It Work?
A number of police officers have been trained as Drug Recognition Experts (DRE). An officer makes a traffic stop based on some factor such as speeding, failure to signal, etc.
The office observes some indication of impairment, or evidence of drug use. i.e. smell of marijuana (the favorite, because it is hard to disprove later through video and audio evidence), visible drug paraphernalia, or the typical signs of impairment such as bloodshot eyes, slurred speech, etc. The officer then proceeds to conduct a standard field sobriety test (SFST).
Problems with Standard Field Sobriety Tests for Drug Crimes
Standard field sobriety tests were created and tested to identify alcohol impaired drivers. Alcohol is a nervous system depressant. The field sobriety tests have not been evaluated for non-depressant drugs, and include the following:
- Horizontal Gaze Nystagmus (HGN) is the involuntary jerking of the eye when it looks to the side.
- Vertical Gaze Nystagmus (VGN) is the involuntary jerking of the eye when it looks up.
- Walk and Turn tests one’s coordination of motor functions.
- One Leg Stand tests one’s balance.
Part of an officer’s training for the SFST is the evaluation of volunteers’ “controlled drinking,” where a person drinks a known quantity of alcohol and attempts the test at different time intervals. For obvious reasons, officers do not train with volunteers on cocaine, heroin, or ecstasy (MDMA).
What is a Preliminary Oral Fluid Test?
If the officer has “reasonable cause,” the next step is requesting consent to a Preliminary Oral Fluid Test (POFT). A POFT consists of a swab to the inside of the mouth which is read by a handheld device; very similar to a breathalyzer.
What If You Do Not Consent to a POFT?
Currently, the penalty for refusal to consent is much different than an implied consent refusal. Refusal of a POFT is a civil infraction with a $200 fine, and currently cannot result in driver’s license sanctions. However, refusal of a breath test for alcohol results in an automatic driver’s license suspension. An officer can base an arrest solely on positive POFT results.
Can an Officer Still Conduct a Blood Test?
Yes. If you refuse the POFT, an officer can still request consent for a blood test, or obtain a warrant for a blood test.
Is the POFT accurate?
The short answer? Maybe. You can request a separate sample be taken for testing at an independent lab to confirm the POFT result. The Michigan State Police use the Alere DDS2 testing device. The devices accuracy percentage varies in different reports on the device.
The drugs tested by the device are limited to six (6) classes of drugs:
However, a negative test does not translate in to innocence. An officer may still believe you are impaired by a substance the Alere device does not test for.
Issues with the POFT
Roadside drug testing only shows the presence of drugs in the system, not a level of impairment. Again, in comparison to alcohol test, there have been years of studies done on what level of alcohol causes impairment, thus resulting in the .08 level being adopted as an illegal level of alcohol for driving.
Alcohol is metabolized in a predictable way, so it is possible to tell if someone ingested alcohol in close proximity to operating a vehicle. But there are not enough studies regarding the drugs tested by the Alere device to correlate specific drug levels to a level of driving impairment.
THC for instance, although present in the saliva, does not indicate when the THC was ingested with any certainty. There is no accepted level of THC that indicates driving impairment. There is also no test for acute drug intoxication, since many substances remain in the blood for days after use.
The Michigan State Police Oral Fluid Roadside Analysis manual admits a positive test result indicates the presence of the drug in the driver’s oral fluid, but does not indicate a level of impairment.
False Positives are Possible
The Alere DDS2 testing device is far from perfect. In fact, false positive results happen more than you would think. Below are just some examples of what can result in a false positive:
- Cold medicine, diet pills, hay fever medicine, and more can lead to a positive test for amphetamines.
- Hemp food products can lead to a positive test for marijuana.
- Ibuprofen can lead to a positive test for marijuana and benzodiazepines.
- Nasal decongestants can lead to positive test for amphetamines.
- Sleep aids can lead to positive test for barbiturates.
Is a POFT admissible in court?
Yes, if a defendant challenges the basis for the arrest.
Is There Any Benefit to Consenting to the Test?
There is not a clear benefit to a motorist submitting to the test. A false positive can result in arrest, while a negative result does not necessarily prevent an arrest if the officer has reason to believe the driver is impaired.
Is There An Increase in Drug Related Driving Accidents?
A review of the MSP drunk driving audit (which contains data about alcohol and drug related accidents) says not really. The number of drug related fatal accidents increased only slightly between 2010 and 2019 in most counties. The number remained fairly steady between the legalization of marijuana in 2018 and 2019.
Don’t Let A Faulty Test Take Away Your Freedom
For all the reasons stated above, you should consider fighting back against your drug charge(s) if you believe it was caused by faulty testing devices. A skilled and experienced attorney will seek out all possible defenses to get you the best result possible.
Michael Norman is a trial attorney practicing both civil and criminal litigation. Over the last 16 years, he has handled hundreds of cases; collecting millions of dollars for civil plaintiffs and multiple not-guilty verdicts for criminal defendants. He received his BA from Clark Atlanta University in 1998 in Sociology and Criminal Justice. He earned his JD from Georgia State University in 2004, where he served as president of the Black Law Student Association 2003. Michael is admitted to practice law in Michigan, the state of Georgia, federal courts and the Supreme Court of Georgia.
Michael was born and raised in the City of Detroit. He served in the Marine Corps after high school until he was discharged in Georgia, where he settled and attended both undergraduate and law school. After interning with the Department of Justice, he has continuously represented criminal defendants and civil plaintiffs in Michigan and Georgia courts. Michael was recognized by the State Bar of Georgia Committee on Professionalism in 2007. He returned permanently to Michigan in 2013 and continues to represent clients in both criminal and civil cases.