The California Senate recently took up a bill that would let police officers use oral fluid drug screening tests to check motorists for the presence of drugs in their systems. The proposed test is administered with a handheld device that uses an oral swab to check for the presence of a variety of controlled substances including marijuana (THC), cocaine, methamphetamine and painkillers.
Police won’t need a search warrant to administer the test and will be able to use it under the flimsiest of pretenses. That’s what the Standard Field Sobriety Test is for, after all. Few drivers, even the soberest, ever pass the physical tests, and that failure gives the officer justification to move on to more intrusive chemical testing.
In all states, implied consent laws require drivers suspected of driving impaired to submit to a variety of tests that can include physical tests, breath tests and chemical tests. Implied consent refers to a legal concept that motorists automatically give consent to such tests when they apply for a driver’s license.
The types of tests subject to implied consent as well as the penalties for refusal vary by state. In California, for example, you must submit to breath and chemical testing (blood or urine) once arrested, or face license suspension, fines and jail time if convicted of DUI. A refusal will be used against you in a court of law, and you do not have the right to have an attorney present prior to or during testing.
In California, you have the right to refuse a preliminary (prior to arrest) breath test, and the officer needs to tell you that. Based on the proposed bill language, the oral swab test will serve the same function as a preliminary breath test and be used to establish “reasonable cause” to believe you’re driving under the influence of drugs. You can refuse to take it, but the officer will simply look for another way to establish probable cause to arrest you.
And like a breath test, concerns arise over the reliability of the results. We know that breathalyzer results have error rates of up to 50 percent, which means that a breathalyzer reading of .08 BAC may only actually be .04 BAC, well under the legal limit. Observers point out that oral swab testing is unproven technology, and its accuracy has not been demonstrated in published scientific studies. And who’s going to make sure patrol officers are certified CSI technicians?
Questions also arise over whether oral swab test results have any correlation to impaired driving. Even if the test reveals some level of drugs in the system, does this mean the driver is actually impaired?
So far, a handful of states have set legal limits for levels of THC—the psychoactive substance in marijuana—in the blood. Two states where recreational marijuana use is legal (Colorado and Washington) have set the intoxication level at five nanograms of THC per milliliter of blood. Note that research into the effects of marijuana on drivers is mixed, and there is little consensus that this level equates to impairment in all drivers. Clouding matters even more, remnants of marijuana use can remain in the blood for weeks and show up in test results.
All of this makes for a complicated and perilous landscape for drivers. (Learn more here about how to protect yourself during a DUI stop.) Nobody wants impaired drivers on the road. But the technologies and methods used to identify those drivers are imperfect at best, even though they have a cache of infallibility. They can also be highly intrusive (forced blood draws and the like), which raises serious constitutional issues.
The potential good news is that the U.S. Supreme Court is set to take up a trio of cases which will ultimately clarify the rules for prosecuting drivers under so-called no refusal laws, which compel drivers to submit to chemical testing.
The bad news is that these issues will never go away, as new technology allows police to quickly conduct probing investigations of all kinds along the side of the road.
For example, a new device nicknamed a “textalyzer” can determine whether a driver was using a phone prior to a crash. A bill in New York would require drivers involved in accidents to submit their phones to a roadside scan to determine if cell-phone use could have been a factor in the crash.
And police in Texas are using automated license plate readers coupled with credit/debit card readers in their squad cars for roadside collection of unpaid court fines. If the driver can’t pay, it’s off to jail.
Where will it end?