The police are now able to test for “drugged driving” at the scene. The DragerDrugTest 5000 (“Drager 5000”) detects the presence of marijuana through a mouth swab - as well as opioids, cocaine, amphetamine, methadone, methamphetamine and benzodiazepines. San Diego just became the latest county to debut its usage of these machines.

The process is simple enough – officers take a cheek swab and then the machine analyzes the swab and prints out a toxicology report.However, unlike a breathalyzer used to determine blood alcohol levels, the Drager 5000 is still not sophisticated enough to determine the level of intoxication. Thus, if a driver tests positive for the presence of one of the seven drugs, the driver will be transported to the police station for a blood test to determine the actual level of intoxication.

The accuracy of the Drager 5000 test has also been called into question. Marijuana can stay in an individual’s system for extended periods of time, sometimes even up to a month after use.And while the police claim that the Drager 5000 only detects the active THC compound responsible for the “high” associated with marijuana use, critics believe the machine is too experimental and unreliable to support this claim. Following the Orange County District Attorney’s Drager 5000 pilot program, Susan Price, the assistant head of court, said that in her agency’s experience, the tests cited several false positive and negative results for marijuana cases. Furthermore, the AAA Foundation’s research, which was published in May 2016, found that even blood tests showing THC impairment “cannot be scientifically supported.”

Also worrisome is the subjectivity of the field sobriety tests (“FSTs”) compounded with the machine’s testing ability. To begin, there are no clear guidelines to determine when someone is impaired due to the use of marijuana. Because of this, police officers are instructed to look at various indicators, such as an unsafe driving maneuvers, bloodshot eyes, the odor of marijuana and blank stares, in order to determine if an FST is warranted. Further, if the Drager 5000 test is performed but the results are negative, officers may still request a blood test because of the machine’s incomplete detection of substances. Additionally, due to the high cost of these machines and scarce county resources, the allocation of the Drager 5000 per capita is extremely limited. All of San Diego County, for example, has two machines - which are currently only being used at DUI checkpoints.

Proposition 64, which legalized marijuana in California, provides funding in an attempt to create a more reliable enforcement tool. We will continue track the progression of this issue and update you accordingly.

Sources:

AAA Foundation for Traffic Safety, An Evaluation of Data from Drivers Arrested for Driving Under the Influence in Relation to Per se Limits for Cannabis (May 2016), https://www.aaafoundation.org/sites/default/files/EvaluationOfDriversInRelationToPerSeReport.pdf.

Brooke E.Staggs, New Urgency For State Standard On Roadside Test For Drugged Drivers, OC Register (Apr. 18, 2016, 9:27 AM), http://www.ocregister.com/articles/test-712445-tests-marijuana.html.

Janice Williams, Driving While High? California Police Test For Drug Use With New Mouth-Swab Test, NewsWeek, (Mar. 20, 2017, 4:40 PM), http://www.newsweek.com/marijuana-drug-test-police-2017-571213.

Kristina Davis, Police Are Using New Mouth-Swab Tests To Nab Drivers Under The Influence Of Marijuana And Other Drugs, LA Times (Mar. 17, 2017, 9:00 AM), http://www.latimes.com/local/lanow/la-me-mouth-swab-drugs-test-police-pot-20170317-story.html.

Kristina Davis, San Diego Police Go After Drugged Drivers With New Mouth Swab Test, San Diego Union-Tribune (Mar. 16, 2017, 5:45 PM), http://www.sandiegouniontribune.com/news/public-safety/sd-me-pot-test-20170316-story.html.

Too High To Drive? Police Marijuana Test Is Problematic, San Diego Union-Tribune (Mar. 17, 2017, 2:15 PM), http://www.sandiegouniontribune.com/opinion/editorials/sd-marijuana-dui-tests-pot-driving-20170317-story.html.