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DRUGGED DRIVERS S.O.L. (spit out of luck)?

April 10, 2014

Amidst the focus on “drugged driving” is a new tool for the detection and apprehension of drivers impaired by drug use.  Los Angeles, other California cities, such as Bakersfield, Fullerton and Sacramento, and cities across the country are now implementing oral swab tests, a fast and efficient way to detect impairment during traffic stops.  Law enforcement can conduct the swabbing to detect a large range of drugs, with accurate measures of levels in mere minutes.

The swab tests in California are voluntary.

What is an oral swab test and how is it done?

An oral swab test is the obtaining of an oral fluid sample for the screening of recent or residual drug use by a law enforcement officer.  Oral swab testing devices provide an all-in-one test kit and analysis system for this screening.  Portable and lightweight, a device is easily administrable and can be used in the field to collect and assess an oral fluid sample from an individual, who is suspected to be Driving Under the Influence of Drugs (DUID) or impaired by substances other than alcohol.  The swabbing is done in three uncomplicated steps:

  1. The handheld testing device cover is removed and the collector swab is rubbed along the driver’s cheek and gums
  2. The swabbed sample is then inserted into the analyzer for immediate analysis
  3. Results indicating a positive or negative reading are yielded for evaluation in less than ten minutes (and can be printed or downloaded to a computer)

A duplicate saliva sample is also taken for forensic laboratory confirmation testing and comparison analysis.

With oral swab testing, it seems that science and technology are catching up with the law.  While blood draws and urinalysis have been the justice system standard with regards to chemical toxicology for decades, obtaining an oral swab is a more rapid and efficient way to detect the recent use of marijuana, methamphetamines, narcotics, cocaine and other substances.  While conventional blood and urine test results must be awaited during processing, oral fluid technology has significant collection and cost benefits, with immediate feedback of results.  If a test result is positive, one can be charged with DUID, even if the drugs were consumed at an earlier point in time.

What is the history of oral swab tests?

Oral swab testing devices have been used in other countries such as Germany and the United Kingdom for the last ten years.  As efforts to reduce and prosecute drug-impaired driving have continued and developed here in the States, oral swab tests and drug detection devices have been slowly explored and introduced.  As part of a federally funded pilot program, the City of Los Angeles has facilitated the planning and undertaking of a field study, utilizing oral swab tests at sobriety checkpoints since 2012.  Subsequently, several other states, such as Missouri, have taken interest in the method of oral fluid collection screening tests and correlated field studies.

Why the struggle with saliva?

As State jurisdictions across the nation struggle to combat driving under the influence of drugs, law enforcement and prosecutors have tightened their focus on practices and procedures, such as oral swab tests, to make it more distinguished to identify, arrest, and prosecute drug impaired driving cases with DUID.  However, despite adequate efforts to determine the reliability and methodology of swabbing at the time of a traffic stop, challenges are to be anticipated.  Some critics question oral fluid collection, claiming that it falls under unreasonable search and seizure, a violation of the Fourth Amendment to the United States Constitution.  Regardless of collaboration with law enforcement agencies, field sobriety testing (FST), drug recognition experts (DRE’s) and various legislative changes, the usage of oral swab testing in the criminal justice system will face serious hurdles.

A study conducted by the California Office of Traffic Safety (OTS) in 2012 showed that drugged driving is as common, if not more frequent, than drunk driving.  With OTS in support, oral fluid collection and the pilot program will expand throughout California in the near future.

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Top Gun DUI Defense Attorney Myles L. Berman

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