Police have unveiled a new tool in their war against intoxicated drivers. A new mouth swab has been introduced, which can supposedly tell if a driver has consumed marijuana and other drugs, even if you consumed them days ago. St. Patrick’s Day in San Diego was the first time that police tried out their new mouth swabs, which are supposed to detect impaired drivers, despite obvious flaws.
The Drager DrugTest 5000 can allegedly detect the presence of not only marijuana, but cocaine, opioids, methamphetamine, amphetamines, methadone and benzodiazepines. The machine itself doesn’t claim to be able to detect intoxication, like the Breathalyzer used in alcohol DUIs. The machine can only detect the presence of the drug, which would then give police probable cause to conduct a DUI investigation, and would serve as evidence in any prosecution.
“It’s a huge concern of ours with the legalization of marijuana that we’re going to see an increase in impaired drugged driving. We want to get these impaired drivers off the streets,” according to San Diego Police Chief Shelley Zimmerman. The machine itself, as a detector only, without a specific time range of detection that would imply impairment, is a constitutional minefield. If you smoked marijuana three days ago, should the police have the right to subject you to a field sobriety test today?
Besides the potential constitutional issues surrounding the use of these machines, the reality is that drugs, unlike alcohol, do not affect everyone the same. The law has established that if you have a blood alcohol level of .08, then you are legally intoxicated, and for the most part, scientifically, they are correct. Other drugs don’t work the same way and in effect, cause differing levels of intoxication in different people. It is impossible to develop a one-size-fits-all machine for drug intoxication, therefore, any legal basis for prosecution falls apart.
A study conducted by AAA’s Safety Foundation found that it was not possible to determine intoxication based on a standardized test. The study found that it is not possible to determine a blood-test threshold for THC – the primary psychoactive substance in marijuana – therefore making any test for intoxication based on chemical data a fraud. The organization recommended that the laws in Colorado, Montana, Nevada, Ohio, Pennsylvania, and Washington targeting high drivers be thrown out until more scientific data can be analyzed.
According to San Diego Police, if a driver fails the drug test, then they may be subjected to a blood draw. The rules governing use of the machine seem to violate established law which governs when a driver can be forced into a blood test. As the machine will only be used at DUI checkpoints, it is your constitutionally protected right to decline to participate in any type of field sobriety testing. Often police try to talk people into giving up their rights at checkpoints, when in fact most states don’t allow them for constitutional reasons. The use of the pot breathalyzer was approved by the California legislature in March 2016, despite opposition to the bill.
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