Police was given a new weapon to combat drugged driving, a mouth-swab that can test if a driver recently used drugs. Drugged driving, like intoxicated driving, is illegal. However, police have struggled to define a consistent method to test drivers and assess (1) if they are under the influence of drugs and (2) if they are impaired.
Drugs, unlike alcohol, cannot be easily tested with a simple test, like the blood-alcohol content (“BAC”) breathalyzer test. The law, in all 50 states, established a bright line 0.08 percent BAC threshold for driving under the influence. The test is objective and fair which is critical to ensure the equal application of the law.
The Problem: Subjective Test for “High” Drivers
One of the acute issues facing law enforcement is that the aptitude tests they administered to drivers suspected of driving under the influence were subjective. Police departments, unlike the field sobriety tests, all relied on different techniques, identifiers, and other measurements that made the application of the test highly subjective based on the officer.
Similar problems facing the field sobriety test is what gave rise to the breathalyzer. The field sobriety test is riddled with flaws. First, officers must administer the test correctly. Failure to do so could lead to a false positive, for example, an officer who is too rushed in her instructions or too quiet so the driver cannot hear. Second, drivers are already under an extreme amount of stress when they perform the field sobriety test, so any mistake could be easily attributed to stress rather than being under the influence.
Third, the officer needs to identify the right identifiers correctly. Was that stumble due to drug use or was it because there was a rock in the road? Are the driver’s eyes furtively darting because they are high or nervous? The officer has mere milliseconds to identify these “tells” and ascertain their source. Unfortunately, this process is highly subjective and is often informed by the officer’s cultural biases, for instance, the officer may be more inclined to attribute furtive behavior to drug use to African-American or poorly dressed drivers versus a Caucasian in a business suit.
Finally, there are many kinds of drugs, and each of them does different things to people’s bodies. Each of these drugs uses a different cocktail of chemicals to affect different parts of the human body. That means there cannot be a standard field sobriety test because there are so many different ways in which a human driver could be impaired.
Objective: Professionalize Field Sobriety Tests
The impetus for the mouth-swab test was in reaction to the legalization of marijuana however it can measure many different kinds of drugs. While there are many different types of alcoholic beverages, they all contain the same ingredient which does the same thing to the human body – retard balance, motor function, and focus.
Conversely, there are numerous drugs that humans can take and each one does something different to the body or mind. Some drugs cause hallucinations, other enhance dopamine receptors, and others impair the senses or brain function. Each of these various effects undermines the objectivity of any drug-based field sobriety test.
The Test: How it Works and What It Determines
The test is two parts, a mouth-swab and a device that is about the size of a mini-bookshelf stereo system. The officer administers a mouth-swab and inserts the swab into the device. The device analyzes the cheek cells in the swab for the presence of the following drugs:
- Cocaine; and
However, the test cannot ascertain the level of intoxication; the police must remand the suspect to a hospital to administer a blood test for that information.
Effect on Criminal Justice
Police departments in California have noted an uptick in drugged driving, especially since the passage of Proposition 64 which legalized recreational marijuana. Similar rises were noted in Colorado as well. The purpose of the mouth-swab test was to enable police departments to fairly administer the law and counter a possible rise in drugged driving rates.
It is likely that the mouth-swab test will have a similar effect on criminal justice as the BAC-breathalyzer. It will professionalize and criminalize behavior in a uniform manner. The results from these tests will serve as a key piece of evidence in the exoneration or conviction of suspected drugged drivers.
However, police a prosecutors caution that this new test isn’t a cure-all for drugged driving. Drugged driving still does not have a black-and-white threshold similar to the 0.08 percent for intoxicated drivers. However, despite the uncertainty, if the California and Colorado police department sees success, it is possible this new test could be adopted by police departments nationwide.