Michigan's Roadside Drug-Testing Program Violates Constitutional Rights, Say Advocates

Steph Willems
by Steph Willems
michigan s roadside drug testing program violates constitutional rights say

A roadside drug-testing pilot program signed into law at the end of June is unconstitutional and runs the risk of destroying lives, a motorist’s advocacy group says.

Michigan’s “Barbara J. and Thomas J. Swift Law” will see five counties selected for roadside saliva swab tests designed to identify drivers impaired by drugs. The one-year pilot, which became law on June 24, raised the ire of the National Motorists Association, which claims the law oversteps boundaries and could prove inaccurate.

The law is named after a couple killed in a 2013 crash in Escanaba. After a blood test, the tractor trailer’s driver tested positive for marijuana use.

Under the program, drivers pulled over by police or stopped at a checkpoint could undergo a saliva test to check for drugs. The test, implemented by a Drug Recognition Expert, would be in addition to the 12-step drug recognition protocol used by Michigan police. Normally, a driver suspected of being under the influence of drugs would have to have blood drawn.

At the time of signing, Governor Rick Snyder claimed the program “will be used to help determine accuracy and reliability of the tests.”

The liberty-minded NMA takes issue with the test’s accuracy and how Michigan will implement it. In a statement, the organization notes that a Supreme Court ruling allowed breathalyzer tests on the grounds that air cannot belong to a person. Testing for alcohol use is simple, but laying a “Driving Under the Influence of Drugs” charge isn’t as easy. Drawing blood, the go-to way of determining drug impairment, requires a warrant.

Prosecutors normally pursue a DWI or DUI charge, even if drugs are found in the driver’s system.

“For one thing, a good saliva or oral fluid device to test for the presence of key drugs are not yet of evidential quality apparently,” the NMA statement reads. “Also, judges and juries usually don’t understand the behavioral differences between impairments of alcohol or drugs.”

The pilot program aims to bridge the gap and make it easier to identify impairment and lay DUID charges.

Calling saliva swab tests “one of the most invasive methods of drug testing in the country,” the NMA said the test violates the 4th Amendment and contains many unknowns. It notes that the law doesn’t state whether a warrant is needed for the roadside saliva test, nor does it say what will happen if a motorist refuses.

As for the science behind the tests, the group worries about false positives, including those caused by prescription drugs:

“For example, you have ADHD and take Adderall (which has an amphetamine-salt combo) to help you concentrate on driving. If you are forced to take the saliva swab test at a checkpoint because all other drivers are being tested, the test would indicate you have drugs in your system and you are DUID.”

Marijuana and other drugs can stay in a person’s system for 48 hours, the group states, long after the effects of the drug have worn off. That could lead both motorists and law enforcement into bumpy legal territory.

Because of the unknowns, and the apparent constitutional overreach, the NMA calls on Michigan to classify the saliva test on the same level as a blood test.

h/t David Holzman

[Image: Ruin Raider/ Flickr]

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  • Pwrwrench Pwrwrench on Aug 02, 2016

    As a few others have mentioned, the critical point here is whether or not having a certain substance in one's system leads to bad driving and crashes. The case that inspired the law about saliva testing was apparently a truck colliding with a car and killing two people. The truck driver supposedly had marijuana in his system, but nothing is said about how that might have caused the collision. This assumption, played up in the media and by avaristic politicians, that there is an De Facto cause and effect here is dubious at best. Every few years the War On Drugs gets ratcheted up a little more. This sorry subject has been discussed, but not in the mainstream. See, for example Smoke and Mirrors by Dan Baum. Some people can drive safely with 0.08 blood alcohol level. Others are dangerous at 0.01.

  • TrailerTrash TrailerTrash on Aug 02, 2016

    I am living in an alternative reality these days. Since when is it an invasion of privacy when our law enforcement thinks something illegal is going on and yet cannot check on it? Driving with a state driver's license has always been a privilege. It is agreed to as a society. Yet now it is an invasion of privacy IF suspicion of driving while under the influence is followed up by a test? Any test? I can see the argument IF cars and drivers were stopped for no reason, although under certain conditions I can understand why even this should be allowed. This takes me back to the madness behind the legalization of pot. I will now sit back and get all the pro arguments...yet not one person can address the real issue...that it cannot be tested for. And since it cannot be, then justice cannot be administered. This is always OK...until an injustice is placed upon your own protected thought. IF your loved one or yourself was harmed from somebody under drug but can legally skate due to lack of testing or a legal loophole...then we will truly see how progressive you are.

    • See 3 previous
    • Tedward Tedward on Aug 03, 2016

      Trailertrash The problem with pot tests is a real one, and both sides have been abusing their inaccuracy to promote questionable goals. One side seems to be ok with the idea that thc duid's should be unenforceable. The other wants to prosecute people for having smoked pot within the last 30 days to week (depending on test) for duid because they hate the idea that pot is accepted socially. I think making Marijuana illegal hurts far more people than any reasonable estimation of its side effects would justify. Making it illegal has also been shown to in no way limit is availability because citizens wilfully disregard that law on an epic scale. For those reasons it should be recreationally legal everywhere. On the other hand dui is a thing, and while pot isn't within a million miles of alcohol, exhaustion or any number of prescription drugs for impairment it's not acceptable to have people driving around blasted. I think evidence of thc impairment should be video based instead of using a meaningless test, or worse, one that sets a poor precedent in regards to personal privacy protections. If you smoked in the morning and its afternoon you should be fine in this scenario, but if you smoke an entire blunt and hit the road that's gonna be observable to the court as well as the police officer. How does that sound?

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