By on August 2, 2016

roadside traffic stop police (Ruin Raider/Flickr)

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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45 Comments on “Michigan’s Roadside Drug-Testing Program Violates Constitutional Rights, Say Advocates...”


  • avatar
    shedkept

    “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.”

    As opposed to an “impaired driver” ruining someone else’s life?

    • 0 avatar
      yamahog

      Yeah, but perversely you catch an impaired driving charge for taking drugs that improve your driving performance.

      Bad law.

      Impaired driving charges should be supported by proof the person was driving poorly. And let’s be real here, many drugs are legal only with a prescription and you shouldn’t face arrest for lawfully using prescription drugs.

    • 0 avatar
      DukeGanote

      With no obvious concern for false positives, due process and this perverse concept called “effectiveness”, sounds like an excuse for the legal system to imprison, confiscate and ruin lives so the hysterical citizens (who assume they’d never be mistreated) can smugly say “at least we tried”.

      • 0 avatar
        redliner

        It will be virtually assured that these ¨random¨ checkpoints and roadside tests will not be set up on the nice side of town, because everyone knows wealthy people don´t use drugs [/sarc/].

        Officer 1: Here comes an Audi A6. Should I stop him.
        Officer 2: Naa, lets light up that rusty Impala with missing hubcaps instead.

        The Impala driver is a single mom trying to get to her McJob. Meanwhile, the driver in he A6 is doing a line of cocaine off of the aluminum and wood trimmed console.

        • 0 avatar
          VoGo

          I knew somehow that the constant repair bills I pay would be worth it someday.
          – A6 owner

          But I have to admit the open-pored sandalwood trim was a terrible choice for doing lines of coke.

          • 0 avatar
            redliner

            “I have to admit the open-pored sandalwood trim was a terrible choice for doing lines of coke”

            I defer to your expertise. Maybe next time you can try something a like more gauche. I hear Chrysler makes some lovely plasti-wood trim for easy cleanup. …and of course, you don’t lose any of your pixie dust in the open pores of the wood.

        • 0 avatar
          DenverMike

          First understand this is a business, and not the Tesla kind. The customer in the rusty Impala with no hubcaps will cost your business money. Lots of money. If you ran their ‘credit’ you wouldn’t even sell them a flippy cellphone.

          I know a rich guy that got a DUI, had to posted bail, paid major fines, besides required classes/fees. His handyman/drinking buddy gets a DUI, with a dozen plus, outstanding warrants, more that $100,000 worth. He’s simply held in the drunk tank and released on his own recognizance at sunrise, with a date to appear. Of course he didn’t appear in court and no one knocked on his door after the failure to appear, 2 years running.

      • 0 avatar
        Piston Slap Yo Mama

        DukeGanote: on the topic of false positives, if the recent ghastly story “Florida Man Arrested When Officer Mistakes Krispy Kreme Doughnut Glaze For Meth” isn’t sufficiently demonstrative of your point, I don’t know what is. If cops can’t get a little detail like that right, are we really going to trust them with our DNA? And are we going to trust them to not use this as a Trojan Horse for outcomes not yet imagined? No thanks, do NOT want.
        Shedkept, you can clutch your pearls and say ‘won’t someone think of the children’ but I’m not buying it.

  • avatar
    orenwolf

    So, clearly we need some way to test, reliably, for impaired driving. We know Breathalyzers cause false positives (especially for nonstandard body types)[1], and do not catch most non-alcohol drug impairments.

    Clearly another system is warranted. But does one even exist yet? It’s critical that whatever method is used is extensively tested not only to determine accuracy, but also so that common false positives are identified. Reality is, we’re probably a *long* way away from roadside accurate tests, until we can do some sort of blood draw with quick results.

    That being said, the alternative, relying on officer intuition for impairment has huge implications of it’s own (It can easily be used as a pretext for any other search), and it would seriously suck if suspicion of impairment resulted in a blood draw and a day or two in jail while the results are tested. So, while there may not be an accurate way to determine impairment, we *do* need some sort of system sooner than later, to avoid exactly this sort of situation.

    [1] https://en.wikipedia.org/wiki/Breathalyzer#Common_sources_of_error

    • 0 avatar
      Reuleaux

      I wonder if we’re getting to the point where you could have a practical VR impairment test? Imperially measuring visual acuity, focus and reaction time is surely more meaningful than the substances in your body; a diabetic with plummeting blood sugar is just as much of a risk behind the wheel as someone impaired by foreign substances.

    • 0 avatar
      Lou_BC

      A blood draw and having it run through mass spectography is the gold standard. If anti-testing advocates are saying that prescribed medications will yield false positives then this test is just a reagent chemical change based upon what it is exposed to. It can steer you towards getting a warrant and a blood draw but isn’t accurate enough to base convictions upon.

      The other issue is the fact that this does not represent impairment. the test just says yes or no as to the presence of a chemical compound. A breathalyzer on the other hand has a clear correlation in blood alcohol levels.

    • 0 avatar
      brn

      In many states, the DWI field test merely provides probable cause for an arrest. Once arrested, a certified (blood for example) test can be conducted at the station or at a hospital. Only the results of the certified test can be used in court.

      I don’t know why drug testing should be any different.

  • avatar
    slavuta

    This is up to people of Michigan. They step out from their holes to the streets and not go to work until this law is stripped. Or they can continue life as sheeple.

    • 0 avatar
      VoGo

      sheeple = law abiding citizens raising families

      • 0 avatar
        Adam Tonge

        This law abiding citizen that is raising a family does not like this law and has written his state representative.

      • 0 avatar
        Adam Tonge

        VoGo, you are right in the sense that slavuta is referring to citizens of Michigan, who are just trying to get through the day, as sheeple. Most people don’t even know that this is becoming a law. They are so consumed with their daily lives.

        The worst part is even if the people of Michigan were able to vote on something like this, the legislature would figure out a way to pass it behind our backs.

        • 0 avatar
          VoGo

          Interesting point, Adam. I DON’T mean to precipitate a political dialogue, but it’s interesting to see Bernie Sanders telling his people to focus on local elections.

          I would estimate that 90% of Americans absolutely detest either the current president, or his predecessor. And yet, in real day-to-day life, neither 43 nor 44 has impacted me much if at all.

          Whereas local and state laws like this can have a real impact on some people, especially the ones in the communities selected for enforcement.

          • 0 avatar
            Adam Tonge

            I agree. The failure of Metro Detroit’s public transit funding bill to even get on the ballot in two counties has me extremely disappointed with local leaders. That’s where we need change.

          • 0 avatar
            Jeff Waingrow

            George Bush’s favorability numbers are low, but not that low. Obama’s are just around 50% in the latest polls.

          • 0 avatar
            VoGo

            Just to clarify, Jeff, what I meant was that if you added the % of people who hated Bush 8 years ago to the % of people who currently hate Obama, you would reach ~90%.

            I was just trying to make the point that the presidential election gets a ton of attention vs. local/state elections, but a lot of what really impacts people happens more locally.

          • 0 avatar
            markf

            “I DON’T mean to precipitate a political dialogue, but it’s interesting to see Bernie Sanders telling his people to focus on local elections.”

            And yet you did, and plugged Bernie Sanders.

          • 0 avatar
            VoGo

            No. I’m not plugging Bernie. I’m illustrating how national politics consumes most of the attention, but local politics often make the biggest difference.

  • avatar
    Jerome10

    Just put it in law that cheek swab is implied consent as part of getting a license.

    Problem solved then, right? Right fellas??

    I’m no lawyer but I still don’t see how it can be constitutional that you must agree to an alcohol test or lose your license for refusing. Kinda feels like a pretty straightforward violation of 4th and 5th amendment rights.

  • avatar
    Pch101

    The Supreme Court has ruled that a warrant is not required to take DNA samples (mouth swabs) for those who have been arrested but not convicted.

    (As one would expect, it was a 5-4 decision with the conservatives generally favoring the right to search without a warrant and Kennedy being the tiebreaker. But the liberal Breyer sided with the pro-search conservatives, while the conservative Scalia joined the dissent of the anti-search liberals.)

    It might be a stretch to apply that same standard to someone who has been stopped but not arrested. (No probable cause.) I don’t like it personally, but an argument could be made either way now that we’ve already slipped down the swab slope.

  • avatar
    Mike

    I’m popping in purely because of the photo. It’s not every day I see my home town police force on TTAC. Apparently Minnesota has better “snowy police photos” than Michigan

    A link for proof – if the site lets me post it.
    https://www.google.com/maps/@45.0190673,-92.9864123,3a,75y,229h,90t/data=!3m6!1e1!3m4!1sHf3wjM1l6EaKlpAEFGlAxg!2e0!7i13312!8i6656

  • avatar
    stevelovescars

    Hell, my state can’t even reliably test for lead in drinking water but they now want to spend money running swab tests on people they “randomly” stop?

    I say we put the first checkpoint right outside of the state house’s elected official parking lot and see what we find. All state lawmakers should be randomly drug tested before receiving their paychecks like they want to do for welfare recipients. If they don’t want their checks, they can skip the test. They make more from corporate payoffs, anyway.

  • avatar
    Hoon Goon

    I wonder if King George’s men claimed that dragging around a wagon with one’s horse was a privilege? That this privilege required giving up personal liberty including arbitrary roadside stops, civil asset forfeiture, roadside checkpoints, and the giving of your flesh or bodily fluids at the command of his agents?

    Prove your innocence to agents of the state? Wut?

    Statists can’t see past their noses.

  • avatar
    geozinger

    If this law is as poorly implemented as the medical marijuana law, then we’re fscked.

    No one in this state can seem to figure out what the law really says, and each locality has it’s own version of what is and is not legal.

    I may have to move back to Ohio…

  • avatar

    This likely violates the Michigan constitution and precedent in state law.

    The U.S. Supreme Court ruling that permits sobriety checkpoints was Mich. Dept. of State Police vs Sitz.

    That ruling said sobriety checkpoints don’t violate the U.S. Constitution.
    SCOTUS kicked the Sitz case back to the Michigan courts, which once again,
    ruled in Sitz’s favor, saying that sobriety checkpoints may not violate
    the U.S. Constitution but that they do indeed violate the Michigan Constitution.

    I don’t see how drug checkpoints are legally distinguishable from alcohol checkpoints.

    http://tinyurl.com/je3t9re

    “The case before us concerns a challenge to the use of sobriety checkpoints by the Michigan State Police. The United States Supreme Court held that the checkpoint scheme does not constitute a violation of the Fourth Amendment of the United States Constitution. Michigan Dep’t of State Police v Sitz. On remand from that Court, a two-judge majority of the Michigan Court of Appeals determined that sobriety checkpoints violate art 1, § 11 of the Michigan Constitution. Because there is no support in the constitutional history of Michigan for the proposition that the police may engage in warrantless and suspicionless seizures of automobiles for the purpose of enforcing the criminal law, we hold that sobriety checklanes violate art 1, § 11 of the Michigan Constitution.”

    • 0 avatar
      VoGo

      Ronnie,
      Do you know about reupholstering car interiors? Like what are the choices (alcantara? pleather?) typical pricing and heuristics for when it’s appropriate? That would make a great article. Thanks,

    • 0 avatar
      Pch101

      The issue here is not about checkpoints that allow sobriety stops to be conducted without reasonable suspicion or probable cause. So your case is not on point.

      This issue involves using roadside drug testing in cases in which there is probable cause to suspect drug use. Not the same thing.

      The legal question is whether the test is overly invasive, given the circumstances. It’s OK to stick a flashlight in a driver’s eyes or have him walk in a straight line when there is reasonable suspicion. But a swab test performed on the side of the road when no arrest has been made may or may not cross the line.

      • 0 avatar

        The post above mentioned checkpoints. That’s because the National Motorists Assoc. mentioned checkpoints. They apparently got it from the Governors’ Highway Safety Association which mentioned checkpoints in their guide to enforcing drugged driving laws.

        As I pointed out, such checkpoints are not legal in Michigan. I read the Michigan law and it makes no mention of checkpoints.

        • 0 avatar
          Pch101

          You went on at length about checkpoints, when this isn’t about checkpoints and the laws re: checkpoints have nothing to do with it.

          This is about being tested for drugs when there is allegedly probable cause to suspect drug use, but without arresting the suspect. With alcohol in the US, we administer those types of tests only after someone has been arrested, not before.

          That case above has nothing do with that issue.

          I explained below why this would be contentious.

  • avatar
    pwrwrench

    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.

  • avatar
    TrailerTrash

    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.

    • 0 avatar
      Pch101

      The alternate reality is not understanding the issue.

      If you are suspected of DUI, certain tests can be administered at the side of the road without there being an arrest.

      But in order to conduct a urine, breathe or blood test, it is necessary to arrest the suspect. An arrested suspect has certain rights that someone who has not been arrested does not have, such as Miranda protections.

      This is calling for administering the drug test without the arrest. This compromises the suspect’s rights. Do you see the difference?

      • 0 avatar
        rudiger

        The easy answer to this conundrum is for Michigan’s Finest to simply follow former Utah State Trooper of the Year winner Lisa Steed’s example. She got that award for having a DUI arrest rate more than double the next closest Utah trooper, to which she attributed her superior clerical skills.

        Unfortunately, what she was really doing was simply arresting everyone she pulled over for DUI, regardless of how well they performed on the pre-arrest roadside test. That way, ‘everyone’ had to submit to a field blood test, coincidentally administered by her after she was certified to do so. As one might imagine, Steed also developed a rather unseemly habit of forcing drivers to perform a breathalizer test ‘before’ they were arrested, as well.

        But it soon turned out that more than a few of those tests came up negative for illegal substances or over the Utah state definition of intoxication. But the arrest still had to be cleared by a court, so the victims then had a hell of a time, costing them big-bucks for lawyers, some of which simply plead guilty to a lesser charge to get the thing over with.

        In the meantime, Trooper Steed was able to amass quite an impressive DUI arrest record, even though many of her arrests were suspicious (to say the least) and vacated. Steed was ultimately dismissed from the force, but not after many years of this chicanery.

        The bottom line is that if Michigan law enforcement wants to perform illegal substance tests, all they have to do is just arrest everyone. Then they can perform all the tests they want. If they come up negative, it’s just a good ‘ole ‘sucks to be you’, just like Steed’s victims in Utah.

      • 0 avatar
        TrailerTrash

        Pch
        You’re not even understanding my point.
        I know and understand the issue. It is the madness of the arguments.
        The reality is then this is forcing officers to arrest if they want to find out if their suspicions are true.
        I would.
        This would be even more trouble for the driver.
        A simple test at the side of the road would fix this.

        And the real point is ALL of these laws are made. Not God Given. As such, they are counter productive. They seemingly want it both ways. Save individual freedoms…but somehow still make the roads safe.

        About as nonsensical as sanctuary cities. Cities where laws are openly unenforced.
        Idiocy.

    • 0 avatar
      tedward

      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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