Wouldn't it be great to get every drug-impaired driver off the road? Why not, it surely would make me feel a lot safer as a regular bicyclist knowing that the person behind me I count upon to safely pass me is not in an altered state of consciousness. It seems a worthy goal.
A pilot program to achieve that objective was launched this Wednesday November 8th in five different counties throughout the state: Washtenau, Kent, St. Clair, Berrien and Delta.
Established by the Michigan Legislature, under Public Acts 242 and 243 of 2016, the program involves having specially trained police officers (Drug Recognition Experts or DREs) do roadside drug tests of saliva of those suspected of driving while impaired (DWI) by common drugs such as amphetamines, opiates, marijuana, meth, cocaine and benzodiazepines.
Each of 26 Drug Recognition Experts, working for a dozen police agencies within the five counties, will carry a device called the Alere DDS2 oral fluid test instrument, which will be used to measure for the presence of drugs in drivers' saliva. A specialized swab inserted into the drivers' mouth tells officers when there is enough saliva on it to be tested. This swab is then inserted into the bottom of the device and in about five minutes it gives either a positive or negative result.
In those counties, the police still need a valid reason to make a traffic stop, and the DREs are trained to only conduct a saliva test after several other protocols have been followed, including well known field sobriety tests, to alert them that impairment may be present. Due to the intrusive nature of the test, a driver has the right to refuse the oral swab. This right comes with a cost just like refusing to consent to a breathalyzer, however, in that the driver will be given a civil infraction with a hefty $200 fine.
Yet, if you do happen to venture into one of these counties and get stopped and are asked to submit to an 'oral fluid test', I would recommend you take the $200 fine and refuse their offer. I suggest you do this even if you're like me and you've never taken one of these drugs in your life. Even if you are okay with having your rights violated, refuse. It potentially can save you from being criminally convicted and/or suffering monetary damage of which a couple of hundred dollars would seem cheap. Trust me, but if you don't...
Let's consider the words of Attorney Bruce Block, who echoes the sentiments of many other Michigan attorneys who see some very big problems with the law and the process. Block says there is a significant possibility that legal drugs can give a false positive leading to a blood test, and unlike breathalyzer tests, the oral drug tests do not show how impaired someone is, only that they have drugs in their system, which is enough to result in a DWI charge.
Research into saliva tests indicate that they indicate traces of drugs that remain in the oral cavity, thus they may actually miss drug impairment caused by non-ingested sources. There are plenty of commonly used and lawful foods and medicines that can generate false positives, as noted here:
Likewise here's a non-exhaustive list of drug categories that may cause false positive results in drug screening procedures:
That poppy seed muffin you ate two days ago, that ibuprofen you took for a headache last night, the Vitamin B supplement you take each morning, could land you into a lot of trouble, just because the swab shows you have a positive. Research on the Alere DDS2 oral fluid test instrument shows it has a large degree of unreliability even without false positives in the picture:
"At one location, 50 drivers were asked to submit an additional oral fluid sample using the DDS2 collection device; these samples were analyzed by using the DDS2 mobile test system. Thirty-eight donors (76%) provided specimens that were successfully run on the mobile system; in 12 cases (24%), the device failed to provide a valid result."
A Vermont study published at the end of 2015 showed that the accuracy on a limited amount of subjects by the DDS2 even had a bit of variance with the 'more accurate' blood tests (thus not only is false positives a possibility, the oral test may differ from other test results):
Attorney Bruce Block notes that the way the program is designed and the fact that the swab test is done with consent keeps it ostensibly constitutional. When someone refuses to take the test, police have to come up with some other probable cause for arresting or detaining a driver in order for it to hold up in court.
“If you voluntarily agree to this saliva test, you’ve just waived your right to have a speedy ticket and be on your way,” Block said.
Block said people need to know they are not obligated to take the test.
“I have advised client after client after client, including my friends and relatives and my wife, don’t take it,” Block said.
It's a sad day when you have to pay a $200 ticket to a drug recognition expert rather than take an unreliable test and hope that it doesn't say the Advil you took earlier tests positive for benzodiazepines, marijuana or barbiturates.