Michigan is currently using saliva collection devices to conduct roadside tests for drugged driving. However, these roadside tests are still too new and too untrustworthy to provide accurate results. The penalty for refusing the test is a civil infraction and a fine. The fine varies by county/community/city, but the fine could be a better option than having unreliable results used to prosecute you in the court system.
Marijuana was legalized in November 2018 and retail marijuana shops have opened across the state. The opening of retail marijuana shops has increased impaired driving throughout the state as well.
State police are still working on a pilot program for the saliva swab tests to identify drug-impaired driving. The first year of the pilot program was from November 2017 to November 2018. Currently, the state police are in their second year of the pilot program. This pilot program for the saliva swab tests includes 125 officers, named as drug recognition experts, who are trained to detect drug impairment and administer saliva tests. To become a drug recognition expert, the officer must complete 72 hours of classroom study followed by 40 hours of field training.
The first drug-related roadside testing with this new tool only had 92 tests conducted during the first pilot year. This year, the second pilot year, state police are averaging about one test per day. They are hopeful this will result in more data to review and provide feedback on the new drug testing tool.
So how does it work? The evaluating officer conducts an interview and other observations before administering the saliva test, to try and determine probable cause. The officer observes the individual’s appearance, attitude, looks for injection marks, inquire as to prescription drug use, checks temperature, and blood pressure, and conducts tests such as a one-leg stand (similar to the OWI SFST). The test is conducted by swabbing the inside of the suspect’s mouth around the gums, tongue, and inner cheeks, using a small tube with a Q-tip like swab on the end. There is an indicator that changes color when an adequate amount of saliva has been collected. The swab is then inserted into the bottom of the handheld testing device and results are indicated approximately five minutes later. The results indicated will show either a positive, negative, or invalid test result for marijuana, amphetamines, methamphetamines, benzodiazepines, opiates, and cocaine.
Officers then request a second saliva sample to be sent to Forensic Fluid Laboratories, a private lab, for comparative analysis. The second collected sample requires leaving a swab beneath an individual’s tongue for up to 10 minutes.
The law allows for these saliva tests to provide the officer with the authority to arrest a person based in whole or in part upon the results of the oral fluid analysis. The results are admissible in a criminal prosecution. The tests may be allowed in for a criminal prosecution when there are questions surrounding the validity of an arrest, similar to the admission of a roadside breathalyzer test for an OWI. The results of these drug tests cannot be used as evidence in determining if the driver was in fact impaired.
In the first pilot test, on 11 occasions out of 74, it was determined that a person was impaired by THC, yet THC was not in their blood. A statistician out of Michigan State University analyzed the data in the first pilot test and concluded that testing delays, handling, and storage can cause drugs to break down and contribute to the contrary negative results.
The House Fiscal Agency analysis in 2016 argued against the saliva tests, stating, “by some reports, cannabis use is detectible for up to 12 hours after ingestion or smoking, but other reports say a saliva swab may detect cannabis in a chronic user up to four days after ingestion. This is long past the time that a person’s ability to safely operate a vehicle would be impaired, as the actual window of impairment may be closer to three to four hours.”
A report from the Impaired Driving Safety Commission in March of 2019 found there is no scientifically supported threshold of THC bodily content that would be indicative of impaired driving. They also determined that the level of impairment does not correspond to the level of THC in the blood.
The results from the second pilot program will be made available after it’s conclusion this year.