DUI Checkpoints Now Include Mouth Swabs that Can Tell If You Smoked Pot Days Ago

San Diego, CA – On St. Patrick’s Day, California’s southernmost metropolis decided to debut a roadside test for those suspected of driving under the influence of cannabis. Several “sobriety checkpoints” were set up throughout the city with the standard invasions of privacy, but this time they added a mouth swab test known as the Drager 5000.

If a cop suspects a driver of being high, they request that he or she take the mouth swab test, and perhaps a field sobriety test as well. They’re trying to gather evidence to incriminate you, although the mouth swab test is not mandatory.

The Drager 5000, already in use in other countries and cities such as Los Angeles and New York, detects the presence of various substances, including THC, the psychoactive ingredient in cannabis. The problem is, this test has absolutely zero ability to test actual impairment or level of intoxication.

But a positive reading can give cops the excuse for the more invasive procedure of a blood test. According to The San Diego Union-Tribune:

“Officers trained to recognize the symptoms of drug impairment will first look for various indicators that a driver is high, from an unsafe driving maneuver to bloodshot eyes to the odor of marijuana to blank stares, San Diego police Officer Emilio Ramirez said. Once there is ample suspicion of drug use, the officer can then request to perform field sobriety tests or for a driver to take the Dräger 5000 test.

If the driver refuses at that point, the officer can force the person to submit to a blood test.

To use the machine, the driver is handed a mouth swab and instructed to run it around the inside of the mouth for up to four minutes. The swab is then placed into the machine, along with a vial of testing solution, and the machine does its work. It takes about six to eight minutes for results to print out on a receipt.

A positive result will likely send the driver to a police phlebotomist for a blood test to determine precise drug levels.”

Even a negative result could lead to a mandatory blood test if the officer still suspects impairment.

“If the mouth swab test is negative but the officer still has a suspicion of impairment, then a blood draw might still be mandated, because the Dräger 5000 only measures for seven kinds of narcotics, Ramirez said.”

And if you can’t make bail, you’ll be sitting in jail for weeks or months awaiting the blood test results. For many people, this would mean being fired from their job, or being ripped away from their family, or some other life-altering repercussion – all because a cop invaded your privacy at an unconstitutional roadblock.

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The Drager 5000 can give positive results for THC even if the person did not even use cannabis that day. If it’s legal to use cannabis – as in California – and the swab test can detect THC from days prior, there is absolutely no rationale for deploying the machine. Despite the fact that someone can be perfectly sober and still test positive, this “evidence” is admissible in court.

San Diego Police Chief Shelley Zimmerman played on fears over legalization to justify their fancy new $6,000 machines, saying, “It’s a huge concern of ours with the legalization of marijuana that we’re going to see an increase in impaired drugged driving.”

The funny thing is, results from St. Patrick’s Day field sobriety checkpoints showed a decrease in the number of DUI arrests. At one checkpoint, six people were arrested, down from nearly a dozen the year before.

One person was going to submit to the mouth swab test for cannabis, but the ordeal gave him an anxiety attack that required medical attention. The cops went ahead and arrested him for DUI afterward.

“We did have one person, who was going to submit a test, but unfortunately had some sort of anxiety attack in secondary to the point where we actually had to get medical attention for him and then later arrested him for DUI,” said Officer Mark McCollough.

Clearly, the Drager 5000 mouth swab test serves no actual purpose in addressing impaired driving but is just another tool of the police state being rationalized by the legalization of cannabis.

State Sets Massive Precedent — Refuses to Enforce THC Blood Limit for Driving

There’s a lot to be said for states that have legalized recreational and/or medical cannabis, but even Colorado and Washington have one problem – arbitrary blood-THC limits which imply a driver is impaired.

These numbers, such as Washington’s 5ng/ml, have no scientific basis for assessing the level of impairment. Despite this, six states with legal weed have per se limits for tetrahydrocannabinol; being over that number automatically makes you guilty of driving under the influence of drugs (DUID).

Oregon, however, is bucking the trend. In its DUI Legislative Report, the state’s Liquor Control Commission said it is recommending against a per se THC limit. By relying on the actual state of science, this welcome exercise in rationality should set an example for other states setting up their own regulatory framework.

Oregon’s Liquor Control Commission was tasked in 2015 with “regulating the recreational marijuana market in Oregon, with studying the question of THC-related intoxicated driving.”

According to the report:

“Due to restrictions on cannabis research and limited data, it is difficult to make definitive statements about the risk of THC-intoxicated driving. The body of evidence that does exist indicates that while attitudes towards driving after marijuana use are considerably more relaxed than in the case of alcohol, the risk of crashes while driving under the influence of THC is lower than drunk driving. Little evidence exists to compel a significant change in status quo policy or institute a per se intoxication standard for THC.”

A widely-reported study by the American Automobile Association in 2016 found no scientific basis for blood-THC limits and called on the six states using such laws to abandon them. Chemical tests for THC have not been shown to correlate to things like brake and gas pedal coordination, distance perception and general attention.

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The only thing we know about blood-THC and driving is that it is not comparable to the tests for alcohol impairment. There is no THC breathalyzer test, and urine tests cannot detect it. Some blood tests can distinguish between THC and its longer-lasting metabolites, but these levels can vary widely depending on how often the person uses cannabis. Test results will also vary based on whether one smoked or ate the cannabis.

One person can feel impaired at 5ng/ml while another can function with no detectable impairment. In fact, many people charged with DUID based on arbitrary blood-THC limits have convinced juries they were not impaired when they were pulled over.

Even so, driving studies show driving while on cannabis is far less dangerous than driving on alcohol, including one finding virtually no driving impairment from cannabis. Other studies have found that speed is typically reduced while driving on cannabis, and people deliberately compensate for any impairment, although multitasking was somewhat affected.

In no way does this mean anyone can just toke up and get behind the wheel. Cannabis is psychoactive, and people unaccustomed to cannabis – especially teenagers – should certainly refrain from driving.

The Oregon Commission’s report also supports the premise that cannabis users are more responsible drivers than alcohol use.

“The rate of drivers tested by Drug Recognition Experts who are positive for THC intoxication rose between 2013 and 2014, but did not increase following legalization. Fatal accidents data is highly variable year-to-year, making trend analysis difficult. But in Oregon in 2015 there were only three more traffic fatalities involving a driver testing positive for THC compared to 2004. Moreover, the rate of THC-related fatal accidents is also considerably lower than such accidents involving alcohol intoxication. Finally, while overall traffic fatalities and alcohol-related fatalities spiked in 2015, THC-related fatalities did not.”

As a spokesman for AAA noted when their study was published, the increased risk from driving on cannabis is about the same as driving with a “noisy child in the back of the car,” and only half as dangerous as talking on a hands-free cellphone (legal in all states).

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While thankfully avoiding an arbitrary blood-THC limit recommendation, the Oregon Commission still felt compelled to offer advice on cannabis and driving. It recommended increasing the use of “Drug Recognition Experts” who administer lengthy sobriety tests specific to cannabis, as well as implementing a voluntary oral swab test to collect data.

Landmark State Court Ruling Says THC in Blood is NOT Sufficient Grounds for DUI

Phoenix, AZ – A Court of Appeals in Phoenix delivered a ruling on Thursday that could set a precedent as legal systems grapple with the question of driving under the influence of cannabis.

“Medical marijuana users cannot be convicted of driving while under the influence of the drug absent proof that they were actually impaired, the state Court of Appeals ruled Thursday.

In a major setback for prosecutors, the judges pointed out that Arizona, unlike some other states, has no law that spells out that at a certain level of tetrahydrocannabinol (THC) in the blood a person is presumed to be impaired…

What that means is every case where prosecutors charge a medical marijuana user with breaking the law requires expert testimony to show that particular individual was impaired at that particular level of THC.”

This is a huge win for citizens and for rationality itself, as it negates the government’s assumption that an arbitrary number means a driver is impaired, which provided grounds for criminal conviction.

Nadir Ishak was pulled over in 2013 after his vehicle drifted out of its lane. Instead of invoking his 5^th Amendment right to remain silent, Ishak admitted to smoking cannabis that morning when the cop probed him for some sign of “criminal” behavior. The cop said Ishak had bloodshot eyes and “body tremors and eye tremors” during a field sobriety test.

Ishak was charged with ‘driving while impaired to the slightest degree’ and ‘driving with marijuana in his body.’ Jurors convicted him of the second charge, but even though Ishak had a state-issued medical card, the city judge refused to allow him to tell this to jurors.

Presenting the medical cannabis card would have shown the jury that “Ishak was legally entitled under the 2010 Arizona Medical Marijuana Act to use the drug and have it in his system.” Judge Diane Johnsen at the Court of Appeals recognized that Ishak was denied a fair trial, and further pointed out the city judge was wrong to rule that “it was up to Ishak to prove he was not impaired.”

The city prosecutor had actually stated it’s irrelevant whether a defendant is actually impaired or not, and suggested the 2010 law means medical cannabis cardholders have to prove through expert testimony that THC in their blood does not cause impairment in “people generally” or “in any person.”

It appears city judges and prosecutors had set up a nice little trap for medical cannabis patients – but the higher court just demolished it.

“Nothing in the statute … requires a cardholder to present expert testimony (or precludes a cardholder from offering non-expert testimony) on the question of whether the cardholder was impaired due to THC,” wrote Judge Johnsen. “Further supporting this conclusion is the reality that, at present, there is no presumptive impairment limit established by (Arizona) law.”

Johnsen also rightfully pointed out: “And, according to evidence here, there is no scientific consensus about the concentration of THC that generally is sufficient to impair a human being.”

Even though Ishak had a blood-THC level of 26.9 nanograms, there was no foundation to prove this causes impairment.

Indeed, there is no widely accepted way to test cannabis impairment in drivers, as THC metabolites can show up in the blood long after a person has ingested cannabis. Also, experienced users can be completely unimpaired even if they test above an arbitrarily-derived blood-THC limit.

“The Arizona Supreme Court already has ruled that the mere presence of metabolites — the chemical compounds caused the the breakdown of marijuana in the body — is insufficient by itself to prove impairment. That’s because those chemicals can remain in the body for days or weeks afterwards.”

Despite the best efforts of local prosecutors to criminalize medical cannabis patients when they drive vehicles, it appears that state courts are having none of it.

“Thursday’s decision is the latest in a string of appellate court rulings that have limited the ability of prosecutors to bring various charges against medical-marijuana patients. These range from limiting the kind of evidence that prosecutors can use to bring drugged-driving charges, to requirements for law enforcement officers to give back drugs taken from legal users.”

Here’s a novel idea. Cops and prosecutors should stop harassing medical cannabis patients and focus on real criminals.