ROADSIDE MOUTH SWAB DEVICE TESTS FOR SEVEN DRUGS IN A DRIVER’S SYSTEM
Police are increasingly concerned about drivers who are under the influence of drugs (DUID), especially since marijuana has been legalized in the state. California Vehicle Code section 23152(e) makes it unlawful for someone to drive under the influence of any drug and as I discussed previously, this includes prescription and even over-the-counter drugs if that drug affects a person’s ability to drive safely. But unlike driving under the influence of alcohol, there is no quantitative standard by which this influence can be measured, it is up to the subjective determination of the cop and other evidence, including observations and the results of a blood test.
While there is no current method of road side testing for drugs that measure how much of a drug is in a person’s system, a new device, with a rather ominous sounding name. the Dräger DrugTest 5000, is currently being deployed in Los Angeles and San Diego and sure to soon appear in other California cities. This device can test for the presence of seven drugs from a simple mouth swab. The device is a compact, easy to use mobile drug screening machine that allows a police officer, who upon reasonable suspicion of DUID, to request a mouth swab from the driver, which is then placed in the machine. The swab is mixed with a vial of testing solution and after about six to eight minutes it will print out a receipt that shows negative or positive results for marijuana, cocaine, opiates, methamphetamine, amphetamine, methadone and benzodiazepines. In addition to road-side use, the device is being employed at DUI checkpoints.
A positive result almost guarantees the driver will be arrested on suspicion of driving under the influence of drugs and required to submit to a blood test. But a negative result from the mouth swab does not necessarily mean the driver is off the hook. If the officer suspects that the driver is under the influence of a drug, the driver may still be arrested and required to submit to a blood test. In both cases, the blood test is mandatory under implied consent, with serious consequences to the driver if he or she refuses the test.
The concern for many drivers may be the detection of marijuana, or more precisely THC, on the mouth swab. THC can remain in a person’s system long after the effects have worn off. Fortunately, the Dräger device only detects active THC (delta-9 THC), which does not remain in a person’s system for more that several hours. Still, the effects of the marijuana could have worn off before the active THC dissipates.
The Dräger device results are admissible in court, although without other evidence of drug-impaired driving, the results would probably not be enough for a conviction. In other word, the Dräger device is not the counterpart to the breathalyzer devices. There will, no doubt, come a time soon when the Legislature enacts per se laws for drugs (legal threshold limits for the amount of a drug that can be in a driver’s system) and the roadside devices to accurately measure that. But for now, the roadside Dräger device is, at best, a tool to assist an officer who suspects a driver is DUID.
If you have been arrested for driving under the influence of drugs, seeking the advice of an experienced DUI defense attorney should be your first step. Orange County attorney William Weinberg has many years of experience defending DUIs and DUIDs. Contact Mr. Weinberg for a consultation concerning your matter at 949-474-8008 or by emailing him at bill@williamweinberg.com.DUI D