A saliva collection device used during previous Michigan state police roadside drug detection pilot programs. (Photo by Emily Lawler)
LANSING, MI -- Michigan motorists may soon be subjected to roadside saliva drug tests, which studies show are imperfect.
A package of House bills, 4390 and 4391, would allow police to give the tests to help determine whether drivers are impaired.
The testing devices, however, don’t tell police anything about impairment. They only determine the presence of certain drugs.
The legislation unanimously passed out of the Government Operations Committee Thursday, May 22.
Related: Positive roadside drug tests wrong nearly 24% of the time in Michigan pilot, data shows
PREVIOUS PILOTS
Michigan State Police between 2018 and 2020 conducted two pilot programs, the latter costing $626,000, using roadside drug detection devices that produced a significant number of errors.
The Sotoxa Mobile Test System devices used during the pilot programs were made by Abbott and cost about $6,000 apiece. It’s unclear what devices would be permitted if the new bills pass.
Based on results of the 2020 pilot program, nearly 11% of tests produced false positives or false negatives, indicating they didn’t match the results of follow-up blood tests. Authors of the pilot program summary report referred to blood tests as the “gold standard.”
Related: Attorneys: just say ‘no’ to roadside drug testing
The pilot program required the roadside tests be performed by specially trained drug-detection officers known as drug recognition experts (DRE). The proposed legislation would allow any law enforcement officer to conduct them.
MLive partnered with AL.com on an investigation into the national DRE program last year. The investigation revealed the DRE program, while supported as an accurate tool by law enforcement, is discredited as subjective “junk science” by critics.
‘A COMPLIMENTARY TOOL’
Complicating the roadside test issue is the matter of THC. Michigan has zero tolerance laws for most drugs, but THC is legal, meaning prosecutors must additionally prove impairment.
Simply showing a driver has THC in their system isn’t sufficient.
Related: Police stuck with old, imperfect tactics to decide who is too high to drive
Julie Rogers, D-Kalamazoo, who sponsored HB 4391, called the test “a complementary tool” that supports officers “when formulating reasonable suspicion or probable cause determinations.”
However, language in the proposed laws gives police permission to arrest based solely on roadside saliva test results, according to the summary of the legislation, but the presence of THC may linger in saliva for hours after after the high has faded, numerous studies have found.
Rejecting a roadside saliva test would be a civil infraction punishable by fines.
According to state Rep. Brian BeGole, R-Antrim Township, who sponsored one of the bills and is the former Shiawassee County sheriff, officers would swab a suspect’s mouth; when the color of the swab changes to blue, indicating an adequate sample has been collected, it’s inserted into a device for analysis, which takes approximately five minutes.
“It’s not going to tell you a percentage of intoxication or anything like that,” said BeGole, who testified on behalf of the legislation before the Government Policy committee that he also chairs. “It’s just going to tell them whether it’s (positive for) methamphetamine, amphetamine, heroin, cocaine THC or benzodiazepine.”
BeGole said the laws “parallel the laws that we have now for the preliminary breath test machine.”
Results of the roadside drug tests could be introduced as evidence “for certain drunk or drugged driving violations or in an administrative hearing,” the legislative summary report said.
Related: ‘It’s junk science.’ Michigan court case sets precedent for so-called drug ‘experts’
DRUG RECOGNITION EXPERTS
The push for new roadside drug testing devices comes as law enforcement work through a blow to one of their most important drugged driving tools: the drug recognition expert.
In lieu of a device, like the breath-test machines used for alcohol, law enforcement across the nation have relied on officers specially trained to detect drug impairment since the 1980s.
File photo (AP Photo/Brennan Linsley)AP
Judges and juries generally accepted their expert testimony to help determine if and what drug caused impairment, but that’s since been challenged in Michigan and other states.
The Michigan Court of Appeals in 2022 issued a ruling that limited the testimony of a drug recognition expert in the case of a woman who admitted to smoking marijuana before being stopped by police due to a malfunctioning headlight.
While she had recently consumed marijuana, she didn’t display any signs of impaired driving. The officers conducted a 12-step DRE evaluation and determined that she was impaired.
The court ruled drug recognition experts couldn’t testify as an expert to the findings. They may testify to observations of intoxication, such as red eyes or a slowed heart rate, but can’t definitively say marijuana impaired driving abilities, the court ruled.
“There simply is no evidence in this record to support that the (drug recognition expert) protocol can reliably be used to detect the degree or level of intoxication caused by marijuana and determine whether that level of intoxication has made the person unable to safely drive a motor vehicle,” the court opinion said.
While the Michigan case specifically addressed marijuana, defense attorneys believe the court’s logic could be applied to other drugs.
CRASH STATS
Supporters of the roadside devices believe they’ll reduce impaired-driving fatalities.
Concerns over a surge in such crashes that followed the legalization of recreational marijuana in Michigan in 2018 never materialized.
According to Michigan State Police annual crash data reports, the number of “drug-involved” crashes decreased from 2,636 in 2018 to 2,250 in 2023. The number of drug-involved fatal crashes increased slightly, from 220 in 2018 to 230 in 2023.
Thomas Chapman of the National Transportation Safety Board testified that “about half” of all impaired drivers test positive for drugs other than alcohol, based on a 2022 NTSB study.
“Given the added complexities of detecting drug-impaired driving, it is important that state laws facilitate and do not restrict law enforcement from using all available, proven tools,” he said.
More than 25 states have used roadside drug tests in pilot programs but Alabama and Indiana are the only two that have implemented a permanent roadside drug test program.
IN LIEU OF BLOOD
Brian Swift of Escanaba, whose parents were killed by a logging truck driver who blew a stop sign in 2013, also spoke at the legislative hearing. Blood tests revealed the truck driver had THC in his system.
Swift’s subsequent activism led to passage of the “Barbara J. and Thomas J. Swift Law,” which provided funding to state police for the initial roadside pilot programs.
The new laws, in addition to expanding roadside saliva testing, allows law enforcement to submit saliva samples to labs for more precise analysis.
It offers “confirmatory testing, in lieu of blood draws at hospitals,” Swift said. “No needles, no blood draws, no diversion of health care staff or resources to collect impaired driving evidence.”
‘DON’T SPIT’
Legislators at last week’s hearing spent all but three minutes listening to supporters of the proposed laws. Two ACLU representatives spoke against the bills.
Tim Beck, vice chair of Michigan Republican Party Cannabis Caucus, intended to speak in opposition, but was told by BeGole there was no time.
MLive discussed the topic with drugged- and drunk-driving attorney Michael Komorn, who’s been an outspoken critic of roadside saliva testing. He maintains his position.
“Don’t spit,” he said, “because the spit tests are junk science.”