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Spit It Out! Drivers Suspected Of Drug-Impaired Driving Now Subject To Roadside Saliva Testing

Gov. Snyder Has Approved Senate Bills 207 & 434 Creating A 1-Year, 5-County Pilot Program Targeting Drivers ‘Under The Influence’ Of Controlled Substances

swab-saliva-test

Michigan law enforcement has a new weapon in its arsenal for combating drug-impaired driving, one that should also help in the battle against drunk drivers on our roads who cause motor vehicle accidents and tragedy in their wake:

Roadside, saliva testing of impaired-driving suspects to “determine whether an individual is operating a vehicle while under the influence of a controlled substance …”

As an automobile accident attorney, I view the entire program as an excellent – and overdue – way to make our roads more safe.

As one can see from the drug-involved crash statistics in the April 11, 2016, story, “Crashes involving drugs grow to decade high in Michigan, police say,” from MLive’s Brad Devereaux:

“The annual number of traffic crashes involving drugs has reached a decade-high in Michigan, according to police statistics. Crashes involving drugs went from 1,581 in 2006 to 2,215 in 2015, a 40 percent increase, Michigan State Police data cataloging UD-10 crash reports shows.”

Under the new laws approved recently by Gov. Rick Snyder, a properly qualified police office “may require” a driver “to submit to preliminary oral fluid analysis” (i.e., roadside saliva testing) under the following circumstances:

  • The roadside saliva testing is conducted in one of the five counties designated by the Michigan State Police as being part of the one-year pilot program.
  • The police officer who requires a driver to submit to roadside saliva testing is “certified as a drug recognition expert,” which means the officer is “trained to recognize impairment in a driver under the influence of a controlled substance rather than, or in addition to, alcohol.”
  • The police officer has “reasonable cause to believe” that “the consumption of a controlled substance” has “affected [the driver’s] ability to operate a vehicle” or that the driver “had in his or her body any amount of a controlled substance …”

Significantly, the new laws also provide that an arrest can be based on the results of a roadside, saliva test:

“A peace officer who is certified as a drug recognition expert … in a county participating in the roadside drug testing pilot program … may arrest a person in whole or in part upon the results of a preliminary oral fluid analysis.” (Enrolled Senate Bill 207)

(Sources: Enrolled Senate Bill 207 and Enrolled Senate Bill 434)

In his June 24, 2016, story, “Roadside drug testing pilot program created under new Michigan law,” MLive’s Brad Devereaux reported that Gov. Snyder signed Senate Bill 207 and Senate 434 (which proposed the creation of the roadside, saliva testing pilot program) on June 24, 2016, and the signed bills became Public Acts 242 and 243 of 2016.

Roadside saliva testing

A “certified as a drug recognition expert” would conduct the roadside saliva testing using “a swab-based drug detection kit designed to identify the presence of six different controlled substances within saliva,” according to the Senate Fiscal Agency’s January 14, 2016, “Bill Analysis” report.

Similarly, the House Fiscal Agency’s April 7, 2016, “Legislative Analysis,” reports:

“[T]here are about three models of the swab test. Each takes a sample of saliva from a person’s tongue or cheek and is capable of testing for cannabis, cocaine, methamphetamines, and opiates. The saliva is wholly contained in the single use device. According to information available online, the tests are able to detect recent use of a drug, often hours before it is detectible in a urine sample.”

Effect on medical marijuana users

Here’s what the House Fiscal Agency had to say in its April 7, 2016, “Legislative Analysis,” about the effect of roadside saliva testing on lawful, medical marijuana users:

“The bills should not be unduly burdensome to medical marihuana patients who, under a recent state Supreme Court ruling, are not in violation of the Vehicle Code’s prohibition on driving with any detectible amount of marijuana as long as they do not show signs of impaired driving and are otherwise in compliance with the Michigan Medical Marihuana Act.”

Penalties for refusing to submit to roadside saliva testing

Under the new laws, it will be a “civil infraction” to refuse to submit to roadside saliva testing:

“A person who refuses to submit to a preliminary oral fluid analysis upon a lawful request by a peace officer is responsible for a civil infraction.”

Michigan’s impaired-driving laws

It is illegal to drive if:

  • The driver is “operating while intoxicated,” which means the driver is “under the influence of … a controlled substance … or other intoxicating substance …” (MCL 257.625(1)(a))
  • “[D]ue to the consumption of … a controlled substance … or other intoxicating substance,” a driver’s “ability to operate [a motor] vehicle is visibly impaired.” (MCL 257.625(3))
  • The driver “has in his or her body any amount of a controlled substance listed in [the Public Health Code].” (MCL 257.625(8))

 

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