During the festivities of the New Year’s holiday 2013, the City of Los Angeles rolled out a new program expanding the testing for the use of other drugs at DUI checkpoints. These diagnostics typically test saliva using mouth swabs to test for narcotics in suspect individuals. This was a state funded pilot program, but as of January 2014, has also been tested in 14 other states.
Drug testing diagnostic devices are being developed to combat the increased prevalence of drugged driving. In 2007, testing determine that approximately one in eight night-time weekend drivers tested positive for drugs, and in 2009 approximately 18% of drivers fatally injured in the U.S. tested positive for some form of drug at the time of their accident.
There is a variety of diagnostic equipment on the market that utilizes Oral Fluid Collection (OFC) to test for drug intoxication, otherwise known as Mixed Saliva Sampling (MSS) in forensic science. Despite the difference in manufacture and design, there are some commonalities amongst the devices: they consist of a collector and portable reader; usually have a tube with an absorbent material to collect saliva from the suspect; typically take 2 to 10 minutes to process, and much like alcohol testing require a deprivation or waiting period of up to 10 minutes.
It is significantly uncertain how these field tests will be used in criminal scenarios. It would be logical to believe that these field tests would be used as presumptive tests, with more sensitive testing evidentiary testing (i.e., blood testing) to be completed once a suspect has been arrested.
There are obvious problems from an evidentiary standpoint with regard to these types of testing and collection devices. Not only are these portable devices extremely expensive, absent federal grants, but (like portable breath test devices) they also have significant issues with sensitivity and specificity (false positives).
Fighting the admissibility of OFC devices should not be a significant issue for a prepared defense attorney.
Under the Frye standard (California, Illinois, Kansas, Maryland, Minnesota, New Jersey, New York, Pennsylvania, and Washington), a challenge to the admissibility of OFC testing should not be too difficult as the United States is far behind Europe and other countries in drugged driver enforcement. Studies commissioned in Europe have determined that OFC technology is not ready for widespread usage leading to the fact that OFC is not generally accepted within its field.
Under the Daubert standard, challenging the admissibility of OFC testing should still be a very viable option and would most likely be successful. When reviewing the Daubert standards we can see that OFC has been tested and peer-reviewed, but is, at best, inconclusive. In fact, in many scenarios, OFC testing is not scientifically reliable not only in roadside testing, but also in more controlled laboratory conditions. Under the Daubert standard, OFC testing devices have not yet been proven to be reliable or acceptable.
Although these devices may not yet be ready for a widespread use, or for evidentiary purposes, it is likely that eventually the technology will be perfected or an alternative developed to test for many forms of drugged driving.
In the meantime, if you or a loved one are faced with a charge of driving under the influence (DUI) in the Washtenaw county area, contact drunk driving attorney Stacey Washington for a consultation. Call 734-274-6567 to schedule an appointment. contact me at 734-274-6567 or 888-769-0091 to schedule a consultation.