The facts
The Michigan State Police and 54 other law enforcement jurisdictions in Michigan have commenced an expanded pilot program for the roadside testing of drivers suspected of being under the influence of five categories of drugs. This has important ramifications for anyone who gets behind the wheel in Michigan, especially for commercial vehicle drivers.
This article will discuss the particulars of the pilot program, it’s pros and cons, and things you can do to protect yourself in any eventuality.
The Michigan State Police (MSP) along with 54 other law enforcement jurisdictions began the expanded roadside drug testing pilot program. The jurisdictions cover much of the Metro Detroit area excluding Detroit, and range from Adrian in the south to Marquette in the north, Allegan County on Lake Michigan to Alpena on Lake Huron. Please see the link below for a list of all 54 jurisdictions.
The program’s stated objective is that of gathering a greater amount of information in order to allow an accurate assessment of the methods for roadside drug testing. Of course, it will also allow law enforcement officers to detect and deal with people who are driving while impaired by drugs. The roadside drug testing is authorized by a law that went into effect in 2016.
The law is commonly called The Barbara J and Thomas J Swift Act. The Swifts were an Escanaba couple who were killed when a semi-truck driver ran a red light in Gladstone in 2014. An investigation indicated the driver was under the influence of marijuana and sleep-deprived at the time of the accident.
This law provides for the funding for and training of law enforcement officers as Drug Recognition Experts (DREs) in all jurisdictions, and for these DREs to conduct roadside tests for drugs after a standardized field sobriety test gives reasonable suspicion the driver is under the influence on something other than alcohol.
This expanded roadside drug testing program commenced on October 1, 2019, will last for one year, when the MSP will evaluate the information, and prepare a report for the commission.
The purpose of the expanded roadside drug testing pilot program is to provide the Michigan State Police with more information than the first pilot program. It was determined more information was needed to determine the effectiveness of the drug testing device, and the procedures. Thus, the MSP should be able to finalize the rules and procedures for the roadside drug testing program which will eventually go into effect statewide.
Of course, the expanded pilot program will also allow a larger number of jurisdictions in any traffic stop to provide probable cause of a driver operating a motor vehicle while impaired, which would give a peace officer justification to take the driver into custody.
The roadside drug test is to be administered by a Drug Recognition Expert (DRE) when justified by reasonable suspicion the driver is impaired by drugs. A positive test result can be sufficient justification to take the driver in to custody, and request the driver submit to a blood test to provide further information to charge the driver with a crime.
A peace office generally needs to suspect a driver is under the influence of something before they may lawfully request the driver submit to a roadside test, whether it be a Preliminary Breath Test (PBT, or “breathalyzer”), or the mouth swab test which the roadside drug test program is using. This suspicion can be the result of observing the driver’s behavior before the peace officer pulls him over, a roadside sobriety test, or both. Once suspicion of drug impairment is established, the DRE may request the driver submit to the mouth swab test.
The roadside oral drug test is a handheld device which the DRE must check for accuracy at the beginning of that day’s shift. The test checks for five different categories of drugs: marijuana, cocaine, benzodiazepines (such as Valium), opiates (such as heroin), methamphetamine, and amphetamines (such as Adderall or Ritalin). If the driver refuses to take the test, the consequences depend on whether the driver is driving a commercial motor vehicle or not. If it is a commercial motor vehicle, the DRE may (and probably will) issue the driver a 24 hour out-of-service notice. This notice goes in to effect when issued, and it means the driver may be charged with a felony if he drives a commercial vehicle during the next 24 hours. The commercial vehicle driver may also be charged with a misdemeanor. If it is any other kind of vehicle, the driver may be cited for a civil infraction, which carries with it a $200.00 fine.
If the driver agrees to take the test, he will be instructed to swab the inside of his mouth with the test swab until it turns blue, indicating it has collected enough saliva. The DRE then puts the test swab in to the device, which usually produces results within ten minutes.
The results will be, for each type of drug, either positive, negative, or invalid. A result of “positive” means the level of that particular drug is above the cutoff point. A “negative” result means the level of drug is below the cutoff point for that drug. A result of “invalid” usually means there was not enough saliva for a successful test. The specific cutoff points for each drug tested may be found in the MSP report, which is linked to below. These results may be used against the driver in a criminal prosecution.
At least during the pilot program, the DRE may ask the driver to take a second, voluntary drug test. It is also an oral test, but is using a different device and the sample must be sealed and sent to a laboratory for processing. The purpose of this test is to double-check the first druf test, but the results may also be used as evidence in a criminal prosecution. This test may be refused without any consequences.
A positive result from the drug test may be sufficient cause for the driver to be taken into custody on operating while impaired (OWI), or any number of other crimes. The peace officer or DRE may then request the driver submit to a blood test. If the driver refuses the blood test, the driver’s license will immediately be suspended, and 6 points will be added to his driving record. The driver has a right to request that someone of his choosing conduct the blood test, but is also responsible in obtaining the results of the test.
What does all this information mean to me?
Most of us will not ever be asked to take a roadside blood test, but it is good to be prepared for any eventuality, and also as citizens we can have a voice in the formulation of the roadside drug testing procedure.
First and foremost, there is the basic rule for everyone who is being scrutinized by a peace officer: be very careful what you say to them. In the context of a roadside stop, you must identify yourself and provide a valid driver’s license and proof of insurance. Beyond that though, the officer will be talking to you in order to gain enough information to not only justify testing you for sobriety, but also to use against you in a criminal prosecution. Even if you have valid prescriptions for any of the tested drugs, this fact will not help you, as the issue is not whether you may lawfully have drugs in your system, but whether you are impaired by a drug in your system. So during a roadside stop, say as little as possible.
Whether you are driving impaired by drugs may be further proven by tests administered at the roadside, or after you are arrested. Remember, you may refuse to undergo any roadside testing and only risk paying a fine unless you are operating a commercial motor vehicle, as discussed above. Then the consequences of refusal are far more serious. Such roadside tests include a request to walk a straight line, looking at the officer’s finger while he moves it, recite the alphabet, etc… In asserting your right to refuse these tests, keep as calm and polite as possible.
In regards to what we can do as citizens, keep in mind that while the rules and procedures for roadside drug testing are not finalized, some form of roadside drug testing is inevitable, yet we will always have a say in the specifics.
There have been questions raised regarding the accuracy of the currently used roadside drug test device. The Michigan State Police report details the results of the first pilot program, including the number of false positives (roadside test was positive for a drug, blood test was negative) and false negatives (roadside test was negative, blood test positive). There is of course no perfect test. The question is how much inaccuracy and ineffectiveness is acceptable. These are the kinds of questions our elected representatives have a say in answering.
The best way to have a voice is to stay informed and in touch with your representatives in the State Legislature.
Final word?
So know your rights, drive safe, keep informed, keep in touch with your representatives, and when in doubt, call Paul!
Links
Michigan State Police Report
https://www.michigan.gov/documents/msp/Oral_Fluid_Report_646833_7.pdf
List of Michigan Jurisdictions participating in expanded pilot
https://www.michigan.gov/som/0,4669,7-192-47796-508752–,00.html