Changing Times Call for A New Method

Public opinion on the safety of marijuana has grown in recent years, which has prompted the legalization of recreational use. Though many agree marijuana is a relatively safe substance to use, law enforcement argues recreational use is not safe when driving. Accordingly, the legalization of marijuana is cause for concern for California law enforcement, which expects to see an increase in drugged driving cases, and suggests there's a need for a more reliable and accurate way to test for drug impaired driving at DUI stops.

What's Already in Use

Up until recently, drug testing for DUIs involved standardized field sobriety tests (SFST), trained observations by drug recognition experts, as well as the tried and true blood test method. SFSTs and observations can only do so much to detect drug impairment, and many would argue they couldn't produce reliable evidence. Blood tests are accurate but not precise. A blood test can detect marijuana in a sample, but it cannot indicate when that marijuana was ingested. Because marijuana can remain detectable in your blood weeks after use, blood tests are deeply flawed.

A New Technique

In the search for a more reliable, precise, and convenient way to test for drug impairment at DUI stops, certain California law enforcement agencies have started using a mouth swab analysis technique that has been successful in Europe as well as other U.S. states including Arizona and Nevada. 

The new device meeting this need is a device much like the already widely used breathalyzer. The most widely used model in the U.S., the Dräger DrugTest 5000, provides a quick method to detect the presence of drugs in a person's saliva. It utilizes a mouth swab analysis method that can detect the presence of seven drugs, including marijuana, cocaine, opiates, methamphetamine, amphetamine, methadone, and benzodiazepines. The test takes less than ten minutes. The driver runs the mouth swab probe in his or her mouth for a few minutes before the officer places the swab in the device, which then runs the analysis. Slightly more invasive than the breathalyzer test, the mouth swab test does take a certain level of cooperation from the driver. Differing from the breathalyzer, the Dräger 5000 does not test for a level of intoxication. After detecting the presence of one of these seven drug classes, however, law enforcement can then request a blood sample, which can provide a more detailed analysis of the drug content in the sample.

The main advantage of the Dräger 5000 is the specific compound in marijuana it detects. Rather than detecting all THC compounds, as many drug tests do, the device only detects the compound responsible for the “high” marijuana users experience, delta-9 THC. Delta-9 THC is the primary psychoactive component in marijuana and is considered the compound that could affect a person's ability to drive like a sober person would. Detecting this specific compound helps law enforcement determine whether the driver was impaired at the time of driving, a crucial advantage over the traditional blood test method.

Your Rights and Responsibilities

Drivers cannot be forced to submit to a mouth swab test just as they cannot be forced to submit to a breathalyzer test. They can, however, suffer the consequences of refusing a chemical test, including a mandatory one-year admin per se license suspension. And refusing to submit to a mouth swab test does not mean you won't be arrested. A law enforcement officer can arrest you on suspicion of a DUI if you fail an SFST or if a drug recognition expert detects signs of impairment.

If you are facing charges for drugged driving, you should speak with an experienced California DUI defense attorney. Drugged driving DUI cases are similar to drunk driving cases, but testing for drug impairment is fraught with more complications than testing for alcohol impairment. Though it has been used successfully in Europe for many years, the Dräger 5000 is still relatively new to many law enforcement agencies in California. Because of the initial cost and the needs of each agency, not all jurisdictions use the device, which could mean the device is sometimes improperly used. For this reason, it is crucial that you have a knowledgeable attorney assist you with your case so you are not wrongfully convicted of a DUI for drugged driving.  

If you are in the Tulare, Fresno or Kings County area and have questions about DUI charges, call experienced DUI defense attorney Christopher Martens today for expert counsel. At The Law Offices of Christopher Martens, we can help you fight your DUI charges and will defend your rights. Attorney Martens has over ten years of criminal defense experience and will fight hard for your rights. Contact our Visalia or Hanford, CA offices at 559-967-7386 or email us at [email protected] to discuss a possible plan of action for your case.