License, Registration, and Saliva, Please: Critics Cry Foul Over 'DUID' Swab Test

Steph Willems
by Steph Willems

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)]

Steph Willems
Steph Willems

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  • Don1967 Don1967 on Aug 13, 2018

    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.

  • Carroll Prescott Carroll Prescott on Aug 13, 2018

    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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