Drug Swabs at DUI Checkpoints
Law enforcements agencies are always eager to explore new technologies that would assist them in detecting impaired drivers.
Oral Swabs During DUI StopsOne of the more recent advancements that is slowly being introduced is an oral swab that can test for the presence of seven different intoxicating drugs, including THC (the active ingredient in marijuana), cocaine, methamphetamine, amphetamines, narcotic analgesics, methadone and benzodiazepine (prescription drugs like Xanax). The swab test takes eight minutes to complete and tests the driver's saliva for the presence of these substances.
Oral Swab RefusalIn late 2013, the Los Angeles City Attorney's Office received a $520,790 grant from the California Office of Traffic Safety to begin using the drug swab tests as part of DUI checkpoint operations with the city of Los Angeles. Those stopped as part of the checkpoint operation and who are suspected of being under the influence of drugs will be asked to submit to the voluntary mouth swab. The driver does not have to agree to this swab, however failure to take the test may result in being arrested on suspicion of DUI. At this point the driver would be asked to submit to further chemical testing of his or her blood. Failure to agree to this test can result in the driver being charged with DUI with a refusal allegation, which would result in an automatic yearlong suspension of his or her driving privileges.
How Reliable are Oral Swab Tests?The use of drug swab evidence is so new that courts have not had a chance to rule on whether or not this test is considered sufficiently reliable. As more driving under the influence of drugs cases relying on the results of oral swab tests are filed in court, these new tests will be challenged as to whether they can be used as evidence against a DUI defendant. Right now, they are only being used as a preliminary test that would justify an arrest; at which point law enforcement would require more traditionally accepted forms of chemical testing. A DUI drug case will not result in an automatic administrative license suspension from the DMV, however if the defendant is ever convicted of a DUI offense in court that driver would then lose his or her driving privileges for at least six months. There is some concern from advocates about the oral swab test regarding the fact that trace elements of THC or other drugs in a driver's saliva from weeks earlier may cause positive test results. They argue that these trace amounts may remain in the saliva despite the fact that all intoxicating effects of the drug have worn off. These advocates believe that those with valid prescriptions for medicinal marijuana or those who are lawfully taking other prescription medications responsibly may be unfairly targeted for prosecution as the result of the new oral swab tests.
Know Your Rights in Los AngelesRight now it is important for drivers to remember that these oral swabs are voluntary and are only being used as part of DUI checkpoints carried out in the city of Los Angeles. This is still a very new area of the law and courts will likely be asked to weigh in on the legality and reliability of these saliva tests in the near future.