As of Nov. 8, 2017, five counties in Michigan have begun an effort to combat drugged driving (Operating Under the Influence of Drugs (OUID)) by employing what are now known as “Drug Recognition Experts,” or DREs, comprised of 26 Michigan State Police officers, each of whom are armed with handheld devices to test for the presence of drugs in drivers’ saliva.
Everyone wants safer roads, but many skeptics are already questioning the accuracy of the handheld devices, as well as the Drug Recognition Experts themselves. However, morality aside, many are simply concerned that roadside drug testing is not scientifically valid. And with Michigan’s current legislation, which allows legal use of medical marijuana, any inaccuracy in this new roadside drug testing can mean the difference between freedom and jail time for those who are otherwise abiding by the law.
Implemented for a one-year trial period in Berrien, Delta, Kent, St. Clair and Washtenaw counties, this new roadside drug test is geared to analyze saliva swabs for six substances: amphetamine, benzodiazepines, marijuana, cocaine, methamphetamine, and opiates above a certain threshold. Michigan State Police representatives say these counties were chosen because “they’ve shown an increase in impaired driving arrests … also the actual number of DREs who were available in those counties.”
Authorities say this pilot program is aimed at stemming an uptick in fatal crashes caused by drug-impaired drivers. The pilot program was established by the Michigan Legislature, under Public Acts 242 and 243 of 2016.
The $150,000-program is called the Preliminary Oral Fluid Analysis. Officers have undergone a two-week training course and must follow a 12-step analysis to assess potential drug impairment.
According to police officers that have been interviewed regarding this matter, officers must first see evidence of impaired driving, “like swerving between lanes or falling asleep at the wheel,” before administering the test. However, this is not necessarily true, as once a police officer pulls someone over, whether for failing to signal or a faulty head lamp, if they feel any suspicion of impairment, DREs can immediately be contacted to employ the roadside test. Only troopers and officers who’ve gone through training to become DREs can then administer the new tests, but one can be sure that these officers are never far.
Red flags or drug symptoms for police officers can include any number of things. “A dilated pupil, slurred speech, uh, looking like there might be something wrong with them, illness-wise,” says First Lieutenant Michael Shaw, a spokesperson for the Michigan State Police (MSP).
Skeptics worry that the recognition of “red flags” or “drug symptoms” can vary too widely, and may ensnare an otherwise unwitting and innocent man or woman based on flimsy assumptions and inaccurate scientific protocol, as the gauge for the DREs’ handheld devices has not withstood the test of time, nor has it been proven a failsafe measure of drug ingestion, let alone impairment.
According to the Associated Press, because drugs affect each person differently, there’s often no firm agreement on how much of these substances equate to an impaired driver. As a result, there is no consensus on what level amounts to impairment, and one can surmise that settling on this kind of a test can be quite complicated, which has been reiterated by academic experts and authorities across the nation. Also, a study published in the Journal of Analytical Methods of Chemistry found that roadside drug testing has a high chance of false negatives and positives.
The device, called the Alere DDS2, will record results based on threshold limits of nanograms per milliliter set by the manufacturer for the six substances. MSP said it should be noted that thresholds for saliva testing are different than thresholds used for blood testing. The testing limits are set for two reasons, to ensure recent drug intake can be detected, and to ensure the device performs reliably, according to the manufacturer.
A specialized swab that tells officers when there is enough saliva on it to be tested collects saliva from the inside of the mouth of the driver suspected of impairment, police said. The swab is inserted into the bottom of the device and it takes about five minutes to display on the screen a positive or negative result for the presence of drugs.
Attorney Bernard Jocuns, of Jocuns Law in Lapeer, is a vocal critic of roadside drug testing, and questions the science behind the handheld devices.
“We have no idea how accurate these roadside drug tests are, nor will we for years,” said Jocuns. “And by then, it will have been too late for all of the law-abiding men and women who will have been victimized by this rash and hurried pilot program. Of course we want Michigan drivers to be safe, but we also don’t want people who have legally ingested medicine to be penalized or imprisoned for driving to or from work days after ingestion.”
When asked about impairment of drivers who are taking a prescribed medication or possess a Michigan medical marijuana card, MSP First Lt. Jim Flegel said those substances can still cause impaired driving.
“With either one, you can’t be impaired while driving a vehicle, whether it’s prescription or not,” he said. “DREs are specially trained on how to deal with that.” He also explained that the saliva test will only tell police if the drug is present or not, but it doesn’t determine impairment.
Attorney Matthew Abel specializes in marijuana cases; his firm is called the Cannabis Counsel. Like Jocuns, his main concern with the new tests, he says, is that “we don’t know if it’s established to be scientifically reliable.”
“(The pilot program) has gotten a lot of press, but I don’t know how much in practice it actually will be used,” Abel says. Still, he says, marijuana patients shouldn’t be too worried. “If you feel impaired, don’t drive. That applies regardless.” In fact, Abel’s optimistic that the stats from this pilot program will show that marijuana users aren’t a danger on the roads, at least compared with other drugs.
Michigan Medical Marijuana Association president Michael Komorn is firm in his stance, saying that he’s concerned about the test’s accuracy and the program’s experimental nature. Komorn said the saliva tests may have a high error rate.
“Nobody should be compelled to take this test until we’ve got some confirmation that it is an accurate test,” Komorn said. “That’s basic fundamental liberty and freedom, that government shouldn’t be able to subject individuals to tests.”
If a driver refuses to take the oral fluid swab test, it can result in a civil infraction, just like if someone were to refuse a preliminary breath test, police have said. People who have questioned these roadside swabs say Michigan’s pilot program is also an accuracy test for the device itself.
Police will report to the Legislature in a year about the program’s accuracy and the number of arrests.