MI: Roadside Drug Testing Won’t Be Random, Won’t Target Medical Marijuana, Police Say

Photo Credit: Justin Sullivan

No, police say, they aren’t randomly selecting drivers to try out their new roadside drug testing pilot program.

They aren’t targeting medical marijuana users either, just trying to make sure they aren’t driving impaired.

Those were two points law enforcement officials attempted to convey during the latest session of the Washtenaw County Sheriff’s Office community education series on Wednesday, Jan. 17 at the county Learning Resource Center.

The session, led by Michigan State Police First Lt. Jim Flegel, focused on the state’s one-year roadside drug testing pilot program.

Washtenaw County is one of five participating counties, along with Berrien, Delta, Kent and St. Clair.

It means specially trained law enforcement agents in the county are empowered to conduct oral fluid tests if they suspect someone is driving impaired, Flegel told the crowd of about 20 people present and the about 900 viewers, as of 10 p.m. Wednesday, of a Facebook Live recording.

The reasoning for the program, results of which will be sent to the state legislature, is simple – Michigan saw a 32 percent rise in impaired driving fatalities from 2015 to 2016, Flegel said.

For example, he pointed to incidents including the suspected drugged-driving crash that killed five bicyclists in 2016 in Kalamazoo, and the death of couple that inspired the bill supporting the program – the Barbara J. and Thomas J. Swift Law.

“We really have to hammer home the education portion of it – that it’s not okay to drive impaired on any form,” he said. “Whether its alcohol or controlled substances, you can’t do it. You’re endangering yourselves and your endangering other innocent people out there on the road.”

In practice, if a motorist is suspected of impaired driving by specific officers, an Alere DDS2 will test the presence of drugs in a driver’s saliva and give results – positive or negative – within about five minutes, Flegel said, demonstrating with the $4,000 device.

A new swab packet is opened for each test, blue coloring will tell police that enough saliva is on the swab for use in the machine and a receipt is printed listing the results for six categories of substances.

Though the device doesn’t record amounts of a drug in saliva, Flegel said it will only record positive results if specific limits in nanograms per milliliter set by the manufacturer are met.

The limits are:

•Amphetamine – 50

•Benzodiazepines –  20

•Marijuana/Cannabis (THC) – 25

•Cocaine – 30

•Methamphetamine – 50

•Opiates – 40

The results aren’t evidentiary and a follow-up blood test would be taken for use in prosecution, Flegel said.

While drivers don’t have an option to refuse the test – they face a civil infraction if they do – they have the option to give a secondary swab for independent testing, Flegel said.

The independent testing is used to assure the accuracy of the roadside test, Flegel said following the meeting. Though police won’t release preliminary results for the pilot program, he said there are no indications that the Alere devices have given false-positive results.

The devices also only record active THC, so results would be negative for individuals who used marijuana in previous days, but not while driving, Flegel said during a question and answer period.

In any case, the tests aren’t the sole determiner of an impaired driver, said Deputy Brian Webb, a Drug Recognition Expert (DRE) for the Sheriff’s Office. Driving behavior and roadside sobriety tests will be the first indicators, and basis for probable cause.

The real issue motorists and police face will be whether a drug impacts the ability of someone to drive safely, Derrick Jackson, director of community engagement for the Sheriff’s Office, told the crowd.

“Impairment is the key word,” Jackson said. “Whether it’s prescribed or not, street or not, if you’re driving impaired is the issue and that’s where the DREs recognize and look for how they are driving how they are functioning.”

People who take prescription medications as directed by their doctor shouldn’t have issue, Webb said.

In addition, only Drug Recognition Experts – with a handful of the 26 statewide in Washtenaw County agencies – have the devices and the authority to use them.

Drug Recognition Experts must attend a 72-hour, two-week program, complete field testing and pass a certification examination through The International Association of Chiefs of Police,  with support from the National Highway Traffic Safety Administration.

Webb and the department’s other expert, Cpl. Doug McMullen, also said they can’t be called to a scene specifically because they have the devices – it has to be a stop or investigation of their own.

The department already has used the device numerous times, the experts said, and Assistant Washtenaw County Prosecuting Attorney Stacie Shaw said her office was forwarded its first case involving the device Wednesday.

Shaw, who also attended Drug Recognition Expert training, said she’s interested to see the results of the pilot program.

“I think it’ll support our use,” she said.

She’s reviewed cases where she believes a lack of immediate testing let an impaired driver walk free, and said she’s hopeful the program will lead to broader use of the device.

One attendee at the Tuesday night gathering, Matthew Berki, 49, of Ann Arbor, said he was glad to get clarification on the levels registered by the new roadside testing device, but that he remains concerned for medical marijuana users he knows. He’d also like further answers on whether a numeric limit for impairment under THC can ever be determined.

States like Colorado set the limit at five nanograms of active THC, but give police the ability to arrest based on observed impairment.

“Are we able to establish a limit for THC that constitutes impairment?” Berki asked. “Maybe not.”