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Roadside Saliva Testing for Marijuana Coming to a State Near You!

It is unlawful in every state in the union to drive under the influence of marijuana.  In many states, merely having the presence of marijuana is enough to be guilty of DUI!  Specifically in Michigan you are guilty of OWI if you have any amount of THC in your blood.  If you have a medical marijuana card, then the prosecutor must still show impairment.

Showing impairment is not always easy, and this often leaves the police with a dilemma; do I have enough probable cause to arrest the driver?  This dilemma is solved, at least in part, by roadside drug testing, and this really is the force behind Michigan’s proposed legislation to allow saliva marijuana testing.

One of the reasons behind this bill is the currently ongoing law enforcement push to arrest more citizens for driving under the influence of drugs – any drugs; from Ambien to Zoloft.  The salivia tests are for many drugs other than marijuana, and taken together, the new bills in Michigan would:

  1. Replace references to “preliminary chemical breath analysis” with “preliminary chemical analysis” in the drunk/drugged driving laws.
  2. Allow a peace officer to require a driver to undergo a preliminary chemical analysis if the officer has reasonable cause to believe a person is operating a vehicle with any measurable amount of a controlled substance or alcohol in the person’s blood, breath, urine, or saliva.
  3. Subject a person to the same testing requirements and consequences for driving with any detectable amount of a controlled substance that are currently in place for driving with an unlawful alcohol content.
  4. Allow a court to impose conditions for release on bail for a charge of driving with the presence of a controlled substance and require the order for bail conditions to be entered into LEIN.
  5. Allow expert witness testimony regarding the test results of chemical testing and custody of evidence to be given by two-way video communication.
  6. Require information regarding a preliminary chemical analysis positive for the presence of a controlled substance to be entered into LEIN, and removed if a subsequent chemical test is negative.

In addition, the bills would do the following:

  1.  Apply the same consequences to operating a vehicle with the presence of a controlled substance that are currently in place for having an unlawful alcohol content.
  2.  Apply the same provisions pertaining to submitting to or refusing to take a preliminary chemical test to situations involving the presence of a controlled substance. Consequences include immediate confiscation of an operator’s license or permit and issuance of a temporary paper one.
  3. Add “saliva” to the list of substances analyzed for the presence of alcohol, controlled substances, or other intoxicating substances.
  4.  Define the “presence of a controlled substance” to mean the presence of any amount of a Schedule 1 controlled substance listed in Section 7212 or described in Section 7214(a)(iv) of the Public Health Code. The unlawful substances include cocaine, marihuana, methamphetamines, Ecstasy, Spice, and other designer drugs and hallucinogens.

Most of Michigan’s criminal law practitioners are against these changes.  In part this is due to the very real possibility that a false positive saliva test could cause an innocent driver to be arrested for DUI in Michigan.  Saliva testing is new and untested, and most forensic scientists agree that they are not sufficiently reliable to be used for even a probable cause determination.

 

About Patrick Barone

Patrick Barone
Patrick T. Barone is the Founding Partner and CEO of The Barone Defense Firm with offices throughout Michigan. Mr. Barone is the author of two books on DUI defense including Michigan DUI Law: A Citizen's Guide and the well respected two volume treatise Defending Drinking Drivers (James Publishing),a chapter in Defending DUI Vehicular Homicide Cases, 2012 ed. (Aspatore Books), an adjunct professor at the Thomas M. Cooley Law School, and a graduate of the Gerry Spence Trial Lawyer’s College. Mr. Barone has an “AV” rating from Martindale-Hubbell and since 2009 has been included in America’s Best Lawyers.

If you would like to contact the author, please visit: http://www.yourmichiganduilawyer.com


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