By on August 10, 2018

[Image: Jeffrey Smith/Flickr]

As jurisdictions across the continent prepare to legalize the consumption of marijuana, assuming they haven’t already, the methods of testing for drug-impaired driving haven’t advanced quite as rapidly as legislation.

While breathalyzers are a mainstay of the law enforcement toolkit, getting an accurate reading of just how impaired a drug-using driver really is isn’t an exact science — despite some claims to the contrary. Blood tests for THC, the active ingredient in marijuana, are often misleading. Actual impairment really comes down to the user, not the blood reading. A driver’s buzz could easily have worn off long before getting behind the wheel, despite the elevated presence of THC in their bloodstream.

Apparently, demands for better testing is something the Colorado Department of Transportation hears at meeting after meeting.

North of the border, the entire country of Canada goes weed-legal this fall, and the likely method of detecting DUID (driving under the influence of drugs) is already coming under fire.

According to CTV, the federal government’s go-to choice for weeding out drugged drivers isn’t infallible. The Dräger DrugTest 5000, described by its manufacturer as “a fast, accurate means of testing oral fluid samples for drugs of abuse, such as amphetamines, designer amphetamines, opiates, cocaine and metabolites, benzodiazepines, cannabinoids, and methadone…” is administered on the spot by a law enforcement officer.

The system incorporates two steps: the sample-collecting test kit, and an automated analyzer. Police in multiple cities across the U.S. use it for detecting drugged driving.

While the Dräger DrugTest 5000 isn’t yet an official Canadian law enforcement tool, Justice Minister Jody Wilson-Raybould published a notice of intention to approve the device in July.

CTV points to research published in the Journal of Analytical Toxicology, which found (via a study of 300 Norwegian drivers) the device “did not absolutely correctly identify DUID offenders due to fairly large proportions of false-positive or false-negative results compared to drug concentrations in blood.”

After receiving a blood test, 14.5 percent of drivers who tested positive for cannabis use were found to not be impaired. 13.5 percent of drivers cleared by the saliva swab turned out to actually be stoned. Norwegian police began using the device in 2015.

As we saw with faulty roadside drug testing kits in the U.S., false positives ruin lives. It also raises the possibility of lawsuits or constitutional challenges. Should the Dräger DrugTest 5000 show up in Canadian patrol cars, some experts predict a massive legal backlash.

“It’s inevitable that we’re going to see constitutional challenges as soon as this device hits the roads,” said Kyla Lee, a criminal lawyer focused on roadside impairment testing. “This is something that is a significant departure from what the Supreme Court of Canada has authorized, and what police has been doing thus far.”

In Australia, which also selected the Dräger DrugTest 5000 for impairment testing, wonky results caused a scandal. Emails obtained from law enforcement agencies in that country revealed a third of the devices didn’t work right, with others suspected of returning false results.

On top of that, Irish police were warned in 2017 that the device doesn’t work properly in cold weather. Apparently, the Dräger DrugTest 5000’s minimum operating temperature is 4 degrees Celsius (39F), which isn’t a problem for cops in San Diego, but most certainly will be for law enforcement in all but a few Canadian locales. The consumption of food or drink within a 10-minute period prior to a test can also screw up the results.

The Justice Minister’s July notice claims a positive swab test “would be a strong indication of recent [cannabis] use.” If fingered by the device, drivers will be arrested and taken in for more rigorous drug testing — either a comprehensive examination or a blood test.

As part of Canada’s Bill C-46, a wide-ranging piece of law-packed legislation introduced alongside the actual marijuana bill (C-45), police gain new powers, including the ability to demand a breathalyzer test from drivers not suspected of intoxication. In cases like this, the driver might find themselves pulled over for speeding or having a non-functional tail light, only to be asked to take a breathalyzer. Refusing the test would result in arrest.

In Canada, consumption of marijuana becomes legal on October 17th.

[Jeffrey Smith/Flickr (CC BY-ND 2.0)]

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44 Comments on “License, Registration, and Saliva, Please: Critics Cry Foul Over ‘DUID’ Swab Test...”


  • avatar
    RedRocket

    Not at all concerned about false positives given that the next step is going to a police station for more rigorous testing which is what should trigger a citation or not. I’m a lot more concerned with the false negatives given that driving while stoned is utterly unacceptable and should be dealt with harshly.

    • 0 avatar
      Advance_92

      Better the innocent suffer, am I right? Now lie face down in the street until I say you can move.

    • 0 avatar
      St.George

      We don’t need more reasons for our jack booted overlords to treat us like vermin. With the above described test, there is a one on seven chance that as a result of a burnt out tail light, or perhaps creeping over a stop line you will be arrested, spend the night in jail (or longer if you can’t make bail) and have to employ some lawyer scumbag to get out of it.

      • 0 avatar
        Middle-Aged (Ex-Miata) Man

        If only there wasn’t so much vermin in our society to give law enforcement any reason to do so.

        • 0 avatar
          St.George

          I don’t mind vermin being treated as vermin. I do mind average folks who have been stopped being treated like vermin because a test throws up a 1 in 7 chance of a false positive.

          • 0 avatar
            golden2husky

            This. If one on seven is going to be charged falsely then the test is a no-go.

            There is a big problem with determining whether a person is impaired. Blood tests are pretty much useless because a long-time pot user will have an elevated level of THC in the blood even if they have not “used” in days. Putting the onus on the officer is also tricky because I know some people that even a trained person would not come across as high even though they are. This is not going to be easy…

            Cue the “just say no” folks…

        • 0 avatar
          JimZ

          all well and good, up until someone decides you’re vermin too.

        • 0 avatar
          JohnTaurus

          Until then, treat everyone as criminals. Cool.

      • 0 avatar
        TrailerTrash

        Jack Booted?
        I am thinking that, as usual, most liberally slanted thinkers forget about other’s torment until it actually happens to them.

        The factual and philosophical issue here IS the liability of the DWU and the harmed getting justice.

        You will always stand for the freedom you are so demanding of UNTIL someone driving while impaired harms someone YOU love. Then, as is always the case, you find your religion and cry for your justice. Until that time it is always a far away never happen to you and intellectual exercise.

    • 0 avatar
      SirRaoulDuke

      I am not willing to risk my liberty on a 1 in 7 failure rate. That’s a little better odds than Russian Roulette…would you like to play?

      And last time I checked, the police station is not a sophisticated laboratory. You have been watching too much CSI.

      • 0 avatar
        Garrett

        So don’t smoke the stuff. Or don’t drive if you do.

        Frankly, I’m less concerned about that than I am about the increased likelihood of someone causing an accident that could harm my family.

        • 0 avatar
          scottcom36

          Not smoking it doesn’t help when the test has frequent false positives.

        • 0 avatar
          MBella

          The problem with your theory of not consuming it comes from the fact that it’s becoming legal in more and more jurisdictions. Blood tests will show a positive long after the person is no longer impaired.

        • 0 avatar
          JohnTaurus

          So, you’re cool with being arrested based on a false positive, having your car towed, being taken to the police station, and generally treated as guilty until proven innocent. Nice.

          Unfortunately, not many of us share that inclination. I’m not going to drive stoned, but I’m not ready to be treated as if I have due to a false positive. One in seven chance of being arrested and taken to jail when I’ve done nothing wrong is pretty terrible.

          • 0 avatar
            TrailerTrash

            Man, I usually always root for you in these discussions, but not here.

            The issue is that the law is presenting a problem it has no way to fix…yet.
            Making a substance legal without or before the development of a testing method is simply a horrible wrong.

            It should not be legalized until there is a way to prevent the crime of DWU, or to test for it.

            Making it legal when you cannot test is saying that the people injured by an DWU are not allowed the pursuit of justice for the damage and pain inflicted upon them.
            You are simply saying…tough.
            No test, no foul.

          • 0 avatar
            DanDotDan

            I certainly disagree with you on this point. You’re giving the police veto power over any drug legalization effort even if that’s what the citizens want and the legislature has voted. All they have to do is claim that there’s no drug test available that meets their criteria.

          • 0 avatar
            TrailerTrash

            DanDotDan

            it’s NOT the police that decides if a test is available.
            They only use the test, they don’t approve of.
            and you glossed over my legal and philosophic points.
            what if your kid was killed by an impaired driver and you have no route to justice? would you be so willing to accept?

        • 0 avatar
          ravenuer

          Ok, but how about the increased likelihood of someone in your family being detained for….I don’t know….something?….nothing?

    • 0 avatar
      JohnTaurus

      Not at all concerned with being arrested, your car towed, and spending hours in a police station on your way to/from work or the store? I sure as hell am.

  • avatar
    civicjohn

    Absolutely ridiculous. The ambulance-chasing lawyers will be lining up for this. Can’t say that I know this first-hand, but both THC (the stoner component) and CBD (the pain relieving component) stay in the bloodstream anywhere from 30-45 days. So, they fail a swab test, and that’s when the real money gets spent to prosecute. At the jail, a blood test is requested, and shows levels of both CBD and THC. Is he/ she guilty? Don’t think for a second the arresting officer knows, how could they? So, here comes the attorney who will happily take the case so he can get his share of the civil lawsuit $$ that the arrested person will file.

    Also, many users develop a tolerance which requires more weed to get high, as opposed to the person who has just smoked for the first time. So, if you really wanted to control the situation, Canada simply shouldn’t have made it legal. Oregon has found out that 60-70% of legally grown weed is “slipping through the cracks”, and much of it heads out of the state, and the expected tax revenue is nowhere close to what they expected because users can buy it cheaper on the street and avoid the tax.

    Unintended consequences, indeed.

    • 0 avatar
      Lou_BC

      The “legal limit” set in Canada is NOT tied/linked to impaired driving. Since there isn’t a direct correlation between THC levels and impairment like alcohol, the decision was made to pick a very low level to use for the “legal” standard. It amounts to *zero* tolerance.

      A fail does not mean an automatic drug charge but means an automatic trip to the police station for further testing. Refusal is treated much worse than consenting, that is the same for a blood alcohol demand.

      • 0 avatar
        Drew8MR

        Doesn’t surprise me, given Canada’s issue with tourists with DUI’s who aren’t even going to be driving while in Canada. It’s pretty stupid to hand out tickets to some poor bastard who got high 3 days ago, unless your goal is just to be punitive for no reason. At least see if accidents even go up first before you get all jack booty.

    • 0 avatar
      Scoutdude

      Oregon just doesn’t have a clue as to what they are doing. However the fact is OR has been exporting weed for decades and the fact that they didn’t control licenses amplified the problem.

      WA and CO regulated much more carefully from the get go and at least in WA they managed to kill the black market. Yes some is exported but like CO it is people who travel to the state purchase it legally and take it back to their state for personal use and/or profit.

  • avatar
    Drew8MR

    Half my family is from Humboldt. I’m pretty sure I have cousins in their 50’s who have never driven NOT stoned in their lives. I’m a lightweight, so I get too anxious to drive, but I’m not convinced habitual marijuana users are impaired at all. Purely anecdotal, I know.

  • avatar
    RHD

    That saliva also contains your DNA. Just one more factor to worry about.
    Convicted felons have to submit a DNA swab while in custody, and get added to a nationwide criminal database.
    That 23-and-Me vial that you sent in last month on a whim can bite you in the posterior in ways you have never imagined.

  • avatar
    Garrett

    DUI laws key off a presumption of impairment at specific BACs or actual impairment. Either is sufficient.

    If the BAC level can trigger a conviction, then a similar standard should be in place for pot. If that means people suddenly can’t drive for four hours, even though they “feel fine, man” then so be it.

    • 0 avatar
      civicjohn

      @Garrett,

      Not that simple. You can look it up, but irrespective of your body weight, male or female, the body metabolizes alcohol at a rate of approximately 0.015% per hour, actually quicker if you are a chronic drinker. After being a NFL season ticket holder and tailgating for 20 years, I figured I better educate myself.

      There is no case law that determines a similar standard for weed. I am all for getting stoned drivers off the road, but why in the hell did they legalize it?

      I spent 3-4 years after college working for a sound company doing national tours. You’d be amazed at the tolerance level some of the artists had, I remember a few times on a tour bus when the intake was stupefying, but they got on the stage and killed it. Does that make it safe? Hell no. I remember one artist telling me that “it was time to get straight”…go figure!

      I have no idea why any state has made it legal except for the tax revenue. In TN, we had a conservative candidate come out in the last couple of weeks before the primary, saying that she was the only candidate that is promoting legal weed.

      She lost.

      • 0 avatar
        TheTruthAboutRob

        “I am all for getting stoned drivers off the road, but why in the hell did they legalize it?”

        Apart from tax revenue, which either started as or became a primary motivator for ending cannabis prohibition, cannabis has been legalized for much the same reason it was legal prior to 1937: individual liberty is the default position of American governance, absent sufficient reason to curtail same. The various stated reasons for cannabis prohibition, particularly those which date to the mid-’30s, have been proven mistaken, intentionally misleading, or distinctly racist—for decades. With regard to medicinal cannabis usage, whether it is formalized as such or is one’s motivation for “recreational” usage under governing law, legalization has typically been motivated by a common recognition that people should not suffer needlessly.

        Unfortunately, neither of those sentiments is particularly strong among a critical mass of citizens who have been systematically misled (at best) for their entire lives. Hence people such as myself suffer what amounts to “negligent torture,” borrowing from the concept of criminal negligence as it is applied to negligent homicide, at the hands of their government. Few care that hundreds of thousands of American citizens have been imprisoned on the basis of known falsehoods regarding cannabis. Meanwhile, cannabis prohibition has already existed longer than slavery did following the ratification of the US Constitution.

      • 0 avatar
        Scoutdude

        No state has made it legal because of the tax revenue, though receiving tax money instead of enforcement spending is not a bad thing.

        No the reason that states have legalized it is because it was the will of the voters. Certainly some of the voters may have voted yes because they see the gov’t getting tax revenue and reducing spending as a good thing.

        Public safety however is the big reason that people should support legalization, done right, not that F-ed up nightmare Oregon.

        Legal grows take place in industrial or agricultural zones. Illegal grows take place in that house next door in some surprisingly nice and expensive neighborhoods sometimes, down the street from your kids school as well as out in the woods.

        Legal sales take place in a store that by law can’t be in your neighborhood, within X distance of schools ect. Illegal sales take place in that HS parking lot or bathroom, the 7-11 or McDonald’s parking lot, the neighborhood park, the house next door, ect.

        The post legalization time was quite an eye opener to me as a RE Agent. The illegal growers were forced out of business because it was no longer profitable. In the past I’m sure they usually removed their equipment and returned the house to the condition it was in when they rented it. However I guess since they were exiting the business they didn’t worry about the Landlord informing the police and the police going to look for their new location. So they left the houses as is.

        Yes I found one place for example that was out on 5 Acres and opening the car door the smell was still overwhelming and it only got worse when you opened the garage door or the door to the house. Things like the rows of hooks in the ceilings to hand the lights from, the shadow boxes over some of the windows were still present.

        However I found far more in median and median + priced homes in nice neighborhoods. One in particular stands out because I knew the previous owner ~20 years ago. More recently my son had a friend who lived just down the street from that house. When taking him to and from his friend’s house I’d often note the smell when rounding the corner that house sat on. Forward to the year after legalization and I have a client that wants to take a look at that house on the corner that is up for sale. Everything seemed normal until we got to the garage and flipped on the lights to find an extreme amount of light pouring out from the opening for the pull down stairs leading to the attic.

        I also found a place that still had the hooks and holes for the exhaust fans in the ceilings 2 blocks from the HS my kids went to.

        • 0 avatar
          Detroit-Iron

          @Scout

          You do know that the smell of the non-burning plant does not harm humans, and that other people have endured the smells of the Purina plant in Denver, the stockyard at the intersection of 76 an 80, or even the Siracha plant in Irwindale? The smell is a zoning issue, not something that people should go to prison about.

          • 0 avatar
            Scoutdude

            My point is the smell kind of points to a grow operation, and that I eventually found the source of the smell I frequently cam across in that neighborhood.

            It is not that the smell is dangerous, it is that the people doing illegal grows are frequently dangerous being criminals and all.

  • avatar
    EBFlex

    Don’t like it, don’t drive.

    Driving is a privilege.

    • 0 avatar
      Detroit-Iron

      That is utter garbage. In the USA at least, “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” Unless you think the Constitution stops at my door, or the door to my restaurant, or the door to my clinic, driving is like any other activity.

      Why am I not secure in my person, papers, and effects, when I am in a car? Let’s say it was 150 years ago and I was riding a horse. Would I somehow not be protected by the 4th?

      As much as the frequenters of an automotive blog may lament the lack of skill or attention that their fellow motorists pay, infringement of travel should be subject to the same strict scrutiny that an objectionable 1st amendment question would be.

  • avatar
    pwrwrench

    This reminds me of the gadget sold by a con artist to law enforcement, school districts, airports, etc back in the 1990s. The plastic box with a needle/gauge on it, claimed to be able to detect guns, explosives, knives, “illegal” drugs, and so on. Eventually someone gave one of the things to a testing lab who found that it was a complete fraud. Inside was a battery and some wiring, and what appeared (to the untrained eye) to be a electronic circuit board. Actually it was a cartoon drawing of a circuit printed, as in an ink-jet printer, on a piece of foil paper. Like you would find wrapping a piece of chewing gum. The device did essentially nothing. The needle on the gauge would react to static electricity. Most of the agencies that wasted the taxpayers money refused to comment. Most likely out of embarrassment.
    It just shows how much the desire is there to “catch” the devious “criminals”. The paranoia of many is beyond comment.
    “We know you’re doing SOMETHING wrong. We just need to catch you at it.”
    This fake drug testing is similar. Just a revenue grab and a way to get ‘customers’ into the justice system.
    Check the Dallas DNA testing, where hundreds of defendants were eventually freed due to fraudulent DNA tests, court “evidence” and perjured testimony by “experts”.

    • 0 avatar
      golden2husky

      The “war on drugs” was a colossal failure and a huge waste of taxpayer money.

      • 0 avatar
        pwrwrench

        Depends on what is meant by “failure”. Lots of police departments, courts and prisons have done a lot of their business over the last 45 years because of the “war on drugs”. It’s certainly been a failure as far as the Constitution and citizens rights are concerned. And don’t forget all the politicians that got elected because they claimed they would “get tough on drugs”. We often learn that means only certain drugs taken by certain people.
        See the books, White Out and Smoke and Mirrors. Read those, and if you’re not pissed off now you will be.

  • avatar
    bunkie

    The entire concept of drug or alcohol blood-level tests is deeply flawed. Driving safely depends upon many factors: judgement, ability, awareness and reaction time to name a few. People display varying levels of these characteristics as a result of sleepiness, drug or alcohol use or just plain poor skills and judgment. Some people drive safely while stoned. A few can even drive safely while maintaining blood alcohol levels above the defined standards. Some can’t drive safely even when under the minimums.

    I’m not sure there is a decent testing-based answer to this problem. Ideally, a purely performance-based test that focuses solely upon minimum standards for driving ability would be the solution. However, this is, at best, a very difficult thing to do at a roadside stop.

    The solution (still a long time away) is self-driving cars. No one here likes that answer, but from a legal rights point of view, it is the best solution to this problem.

  • avatar
    TrailerTrash

    “Actual impairment really comes down to the user, not the blood reading.”
    So?
    Isn’t this the very same for booze?
    I know, I was one of the very best. Good enough that I was paid to take test while under the influence of many combinations of drugs and booze in the good ol california days.
    And being better at disguising and handling, I messed up the curve of the test.

    However, the law is the law…regardless of how skilled you are at performing while impaired.

    There is no way to test each individual driving skills for every drug.
    And victims of crime and an accident caused while driving impaired IS A CRIME, must be given a way to seek justice.
    For themselves or their loved ones.

    The real issue here is once again the government is allowing popular feelings to result in law before any means of enforcement of rules of the road can be enforced.

    Government at its best again.

  • avatar
    don1967

    Once upon a time there was a hysteria over distracted driving caused by cell phones, resulting in new cell phone laws when we already had perfectly good distracted-driving legislation in place.

    Now we have a hysteria over stoned driving, which will surely result in new blood chemistry rules when we already have a field sobriety test which tells us everything we reasonably need to know about a person’s ability to drive. Need evidence? Videotape them tripping, stumbling, and poking themselves in the eye. What’s in their bloodstream should remain their own damn business if at all possible.

    Less police state, more common sense.

  • avatar
    Carroll Prescott

    Since driving on the public roads is not a right, I have no problem with the police doing this. As a libertarian who never falls for the excuse of making the police’s job the easiest as it can be, I will bend here – driving is a privilege and if you trigger a stop, you should be required to do this.

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