In a number of jurisdictions around the world, traffic police have begun to use saliva or “oral fluid” tests to detect the presence of drugs of abuse.  The intent of these oral fluid tests has been to detect recent use of an illicit substance at a time when the driver may be at a higher road safety risk to the community.¹  It appears that Michigan is now among these jurisdictions. On June 23^rd, two separate Public Acts were signed by Gov. Snyder, both regarding a pilot program that aims to test the use of saliva screening of potential drugged drivers on the road side.²  Both of these acts will take effect on September 22^nd and are codified under MCL 257.62a, 257.625r, 257.625s, and 257.625t. Because of the potential impact on both drugged and drunk driving, it is imperative that the defense bar be aware of the new changes.

The new law is intended to produce data to be used as part of a larger feasibility study.  Specifically, PA 243 allows for the creation of a pilot program to study the new oral fluid analysis equipment’s impact on arrest and conviction.³  The oral fluid analysis equipment to be used in this pilot program was designed to mimic the use of preliminary roadside breath alcohol testing, which has been conducted in the state for decades.  The new statute corresponding to PA 243, i.e., MCL 257.625t, allows the Michigan State Police to select five counties in which to test the oral fluid analysis equipment.  Which counties will be selected is still unknown, but consideration requires that the subject county have at least one certified drug recognition expert (DRE) on staff at any level of agency within the county.⁴

It would appear that this pilot program is not designed to test the reliability of roadside oral fluid analysis or the skill of the so-called certified drug recognition expert.  Instead, MCL 257.625t(7) only requires reporting relative to why the counties were selected, who participated, how many arrests were made, and how many convictions obtained.⁵  There is the possibility that more meaningful statistical information could be gathered, but this would be hoping against the old adage, “good enough for government work.”  By way of example, specific records that are not required include: (1) number of traffic stops where a DRE is called in to investigate; (2) results of  DRE investigations, including an indication of which drugs were believed to be present; (3) which standardized field sobriety tests were offered; (4) how many suspects successfully/unsuccessfully completed those tests; (5) how many oral fluid analyses were conducted; (6) the number of suspects that passed/failed those analyses. This additional information is imperative if the goal is to determine the effectiveness of this pilot program.  Most importantly, it would seem imperative to track how many arrests were made, even when the preliminary oral fluid analysis was negative.  It would then be of interest to track how many of those cases were later held to be valid arrests and how many of those cases eventually showed positive results with blood testing.  Instead, it appears that this pilot program is limited solely to assist the State in determining if the oral fluid analyses will increase arrests and/or convictions.

How impactful the oral fluid analysis results will be on the number of arrests or convictions remains to be seen.  With preliminary breath testing (PBT), the officer must determine if the subject is over the legal limit only for alcohol, as drinking and driving is only illegal if the subject is intoxicated or over said limit.  Many times, a person will not appear to be sufficiently intoxicated or impaired to justify an arrest in the absence of a PBT.  This made the introduction of the PBT an essential tool in probable cause determination.  Contrarily, at best, the oral fluid analysis can provide only a qualitative result.  In other words, it detects the possible presence of a few specific drug categories.  It does not rule out every possible illegal substance or provide a quantitative result. This means that if a person appears intoxicated, yet both oral drug screen and PBT are negative, the person might nevertheless be arrested so that a later, more specific blood test can be made.  These limitations call into question the reliability and necessity of the testing in the first place.  Moreover, unlike drunk driving, which involves a legal substance that only becomes illegal at the point of intoxication or at a certain level (.08), the mere presence of most of the drugs tested in the oral fluid analysis is sometimes enough for arrest.

Moreover, while the results of the oral fluid analysis are available to support a probable cause determination, it is unlikely that there will be a substantial increase in arrests solely based upon any oral fluid analysis.⁶   This is because the standard requires “reasonable cause” to even administer the oral fluid analysis.⁷  While reasonable cause is less than probable cause, it still requires that the officer have some factual basis to believe that the person is under the influence of drugs.⁸  Currently, if the suspect fails the standardized field sobriety testing, but passes a PBT, most judges will find that probable cause exists that the suspect may be under the influence of drugs.

Now, the pilot program introduces a preliminary result which will likely only support the finding of probable cause that may have already been made in the absence of such testing.  Instead of increasing arrests, it seems more likely that drivers who are actually not under the influence of drugs will potentially avoid arrest, since the lack of a positive oral fluid analysis should confirm that the appearance of impairment is due to something other than drugs or alcohol. This may actually cause a decrease in the numbers of drugged driving arrests.  However, again, it is possible that questionable arrests will still be made and upheld, even with negative oral fluid analysis results.  Unfortunately, the statute fails to require the pilot programs to keep this data, so it will be difficult to ascertain the actual impact of the analysis on arrests and convictions for drugged driving.

Even less clear is the potential impact on overall conviction rates.  This is because, similar to the PBT, the results of the oral fluid analysis have limited admissibility.  Again, while the results are admissible to determine probable cause, this standard is likely to have been met even in the absence of any oral fluid analysis.  Further, similar to the results of a PBT, the results of the oral fluid analysis do not appear to be admissible at trial.  However, unlike the PBT, which allows the introduction of the results in limited circumstances under MCL 257.625a(2)(b) and (c), the oral fluid results should never be admissible at trial.  That is because the condition precedent of admission for the results under MCL 257.625r(3)(b) and (c) is the admission of the results in the first place.  Specifically, those sections that provide for admission also require that a witness under cross examination testifies incorrectly/falsely about the results of the inadmissible oral fluid analysis before the results of the oral fluid analysis can be admitted, which seems to be an unlikely occurrence. The limited admissibility of the results of the oral fluid analysis will likely prevent any major increase in the drugged driving conviction rate, even if it does affect arrest/no arrest decisions.

While the new law focuses on drugged driving, it also potentially impacts the admissibility of evidence in all drunk and drugged driving cases.  Specifically, MCL 257.62a now defines a “standardized field sobriety test.”⁹  The new definition seems to require “substantial compliance” to the National Highway Traffic Safety Administration (NHTSA) tests.  Based upon NHTSA, there are only three standardized tests: the horizontal gaze nystagmus (HGN) test, the one-leg stand, and the walk and turn.  This amendment clearly requires that the performance and evaluation of the horizontal gaze nystagmus (HGN), one-leg stand, and walk and turn must substantially follow the rules promulgated by NHTSA.  Any attorney who has cross-examined a police officer knows that this would seem to bar many officers from testifying about the tests that they administered.  However, the new MCL 257.625s appears to lessen the impact of that definition by allowing testimony if the officer is simply trained to do it correctly.¹⁰  It appears that the officer will be allowed to testify to the standardized field sobriety test if the officer can show a proper foundation of qualifications.¹¹  It would seem that, as long as the officer can discuss learning about the test and having preformed it, almost any officer could satisfy that requirement.  If that wasn’t a low enough bar, the new law also allows for testimony about non-standardized testing, so long as it complies with the Michigan rules of evidence.¹²  Of course, this essentially renders the definition and requirement for training as nugatory, as the officer can just testify about anything as long as it meets the rules of evidence.

It is also clear that the statute is attempting to recognize the NHTSA designated training for drugged driving.  Currently, NHTSA provides approximately two weeks of coursework¹³ that purports to enable a regular police officer to become a “Drug Recognition Expert” (DRE), capable of not only detecting impairment from drugs, but also capable of ascertaining the exact drug category or categories that the suspect is under the influence of.  Dangerously, the statute seems to give validation to this program without running a separate pilot program regarding the methods utilized.  Instead, the Legislature gives a ridiculously broad definition of a “certified drug recognition expert” by allowing anyone who has training in detecting the “impairment in a driver under the influence of a controlled substance rather than, or in addition to, alcohol” to be a certified DRE.¹⁴  The definition does not even require that the officer be certified under the NHTSA standard; instead, it allows anyone who has ever attended the police academy to meet the overly broad definition of “certified drug recognition expert.”  This expands the potential pool of counties that may participate in the pilot project.  Fortunately, the impact of the definition seems to be limited to only those counties selected, as every further section makes reference to being an officer in a participating county.¹⁵

Overall, the new law presents very little in the way of designing an actual scientific study or validation of the oral fluid or drug recognition testing methods.  Instead, it seems geared to supporting the recognition of the certified drug recognition expert in the State of Michigan while at the same time failing to establish any reasonable standard for that certification.  Since the pilot program is designed to last one year,¹⁶ it will be a while before we will know what data was actually collected and what the Michigan State Police will present as findings.  However, once it is determined which counties are participating, it is incumbent upon all defense attorneys to immediately begin challenging the results of this pilot program, lest sloppy testing methods and under-informed results are allowed to adversely impact the next round of legislation.

by Patrick T. Barone, Esq. and Ryan Ramsayer

Patrick T. Barone is the founding partner at Barone Defense Firm.  With offices in Birmingham and Grand Rapids, the Firm exclusively handles DUI cases, often representing the accused Health Care Professionals.  Since 2009, the Firm has been included in US News & World Report’s America’s Best Law Firms.  Mr. Barone has an “AV” rating from Martindale-Hubbell, is rated “Seriously Outstanding” by Super Lawyers, and “Outstanding/10.0” by AVVO.  Find him on the web: www.BaroneDefenseFirm.com.

Ryan Ramsayer is a senior associate at the Barone Defense Firm where he has been employed since 2009.  However, his dedication to defending the rights of his fellow citizens began long before he began practicing law. As a member of the United States Marine Corps Infantry, he honorably served in Afghanistan. Mr. Ramsayer now uses his combat-tested determination to fight on a new battlefield—the courtroom, where he continues to distinguished himself among his peers.  He can be reached at rramsayer@barone defensefirm.com.

Endnotes

1.  Drummer, et. al., Drugs in oral fluid in randomly selected drivers, Forensic Science International 170, pgs. 105–110, (2007).

2.  2016 PA 242 and 243.

3.  This act is also known as the Barbara J. and Thomas J. Swift Law.

4.  MCL 257.625t(4).

5.   (7) Not more than 90 days after the conclusion of a pilot program established under this section, the department of state police shall submit a report to the legislative committees of the senate and house of representatives with primary responsibility for judicial and criminal justice issues. The report shall cover all of the following:

(a) How pilot program participant counties were selected.

(b) The different types of law enforcement agencies in the pilot program participant counties that engaged in roadside drug testing.

(c) Relevant statistical data, including, but not limited to, the following:

(i) The number of traffic stops resulting in an arrest for operating under the influence of a controlled substance in violation of section 625 as a result of roadside drug testing by a certified drug recognition expert.

(ii) The number and type of convictions resulting from an arrest made based on the result of a roadside drug test by a certified drug recognition expert.

6.  See MCL 257.625r(2) and (3)(a).

7.  MCL 257.625r(1) A peace officer who is certified as a drug recognition expert as that term is defined in section 625t in a county participating in the roadside drug testing pilot program under section 625t who has reasonable cause to believe that a person was operating a vehicle upon a highway or other place open to the public or generally accessible to motor vehicles, including an area designated for the parking of vehicles, within this state and that the person by the consumption of a controlled substance, may have affected his or her ability to operate a vehicle, or reasonable cause to believe that a person had in his or her body any amount of a controlled substance listed in schedule 1 under section 7212 of the public health code, 1978 PA 368, MCL 333.7212, or a rule promulgated under that section, or of a controlled substance described in section 7214(a)(iv) of the public health code, 1978 PA 368, MCL 333.7214, may require the person to submit to a preliminary oral fluid analysis administered under this subsection.(italics added)

8.  Reasonable cause is something less than probable cause, but substantially more than a reasonable suspicion. People v. Bloyd, 416 Mich. 538, 554; 331 NW2d 447 (1982).

9.   “Standardized field sobriety test” means 1 of the standardized tests validated by the National Highway Traffic Safety Administration. A field sobriety test is considered a standardized field sobriety test under this section if it is administered in substantial compliance with the standards prescribed by the National Highway Traffic Safety Administration.

10.  See MCL 257.625s: A person who is qualified by knowledge, skill, experience, training, or education, in the administration of standardized field sobriety tests, including the horizontal gaze nystagmus (HGN) test, shall be allowed to testify subject to showing of a proper foundation of qualifications. This section does not preclude the admissibility of a non-standardized field sobriety test if it complies with the Michigan rules of evidence.

11. Id.

12.  Id.

13.  According to the “International Drug Evaluation and Classification web site, The DRE Program trains police officers and other approved public safety officials as drug recognition experts (DREs) through a three-phase training process: (see http://www.decp.org/training/ (last checked 8.1.16)).  This includes only a combined 72 hour Pre-School and Expert School, which is then followed by a 40-60 hour certification period.

14.  MCL 257.625t(9)(a).

15.  See MCL 257.625r et. al.

16.  MCL 257.625t(2).

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