LANSING, MI -- Multiple defense attorneys say they would advise their clients refuse Michigan’s new statewide roadside drug tests. They’re too untrustworthy, they say.

The penalty for refusing the test is a civil infraction, the fine for which varies by community, but it’s a better option than having unreliable results used to prosecute you in court, said Michael Komorn, a Farmington Hills-based drugged- and drunk-driving attorney, who also specializes in marijuana law.

With legalization of recreational marijuana in November 2018 and the opening of retail marijuana shops across the state underway, the impact of marijuana on impaired driving and public safety has heightened.

The usefulness of the saliva swab tests in identification of drug-impaired driving is exactly what state police hope to determine with a second-yearlong pilot program that kicked off in October.

The first year of the pilot program lasted from November 2017 to November 2018 and included 12 police agencies or state police posts in five counties. The second yearlong pilot includes 125 officers, dubbed “drug recognition experts" who are trained to detect drug impairment and administer saliva tests.

To become a drug recognition expert, participating law enforcement must complete 72 hours of classroom study and 40 hours of field training.

At least one drug recognition expert is made available to traffic enforcement operations in each of Michigan’s 83 counties.

“The first pilot project showed that use of this roadside tool, when paired with law enforcement observed driver behavior and standardized field sobriety tests, shows great promise for detecting drug-impaired driving, but with only 92 tests conducted during the first pilot, the sample size was too small to draw any definitive conclusions on the effectiveness of the tool,” state police spokeswoman Shannon Banner said. “With the second pilot expanded to include 'drug recognition experts’ in every county, we’re now averaging about one test a day, which will result in a much more data to review upon conclusion of the one-year period."

The statewide pilot program is expected to cost $626,000 for testing instruments, supplies, training, analysis and laboratory expenses, Banner said.

State police purchased 112 of the saliva-testing devices, referred to in police reports as “oral fluid test instruments,” and have an open bid to buy more, Banner said. Due to the pending purchase, she wouldn’t reveal the price tag, but previous legislative analysis of 2016-passed law that led to the initial pilot program estimated they’d cost about $6,000 each.

State police are using the SoToxa “mobile test system,” previously named the Alere DDS2, sold by Abbott, a global company headquartered in Abbott, Illinois.

The test involves swabbing the inside of the suspect’s mouth around the gums, tongue and inner cheeks using a small tube with a Q-tip-like swab on the end. There is an indicator that changes color when an adequate amount of saliva is collected. The swab is inserted into the bottom of the handheld testing device and results are indicated in about five minutes as positive, negative or invalid for marijuana, amphetamines, methamphetamines, opiates, benzodiazepines and cocaine.

In addition to immediate roadside saliva tests, officers in the pilot program request a second saliva sample to be sent to Forensic Fluid Laboratories, a private lab, for comparison analysis. Collection of the secondary sample requires leaving a swab beneath the suspect’s tongue for up to 10 minutes. Each lab test costs $30.

Police in the pilot program also collected blood for analysis in the majority of cases.

The evaluating officer conducts an interview and other observations before administering the saliva test to determine probable cause. A “drug recognition evaluation” form on the state police website indicates the officer observes the suspect’s appearance, attitude, looks for puncture or track marks on the arms, asks about prescription drug use, checks blood pressure and temperature, and evaluates the results of various physical tests, such as a one-leg stand.

The saliva test is meant to bolster the officer’s suspicion of drug impairment, not as a sole basis for arrest. However, the law states an officer may “arrest a person in whole or in part upon the results of a preliminary oral fluid analysis" and the results “are admissible in a criminal prosecution.”

The roadside drug test results are only allowed into evidence when there are questions surrounding the validity of an arrest, similar to the admission of a roadside breathalyzer tests. The results cannot be used as evidence in determining if the driver was impaired.

In a February 2019 report, the Oral Fluid Roadside Analysis Pilot Program Committee released findings from the initial yearlong pilot program that resulted in 92 saliva tests and 89 arrests for impaired driving and other crimes.

THC, the psychoactive compound in marijuana, was the most prevalent drug found by the roadside tests, identified in 74 cases. In 11 of those cases, however, THC wasn’t found in subsequent blood analysis.

“Then they try to suggest in the report, contradicting themselves ... that blood is the ‘gold standard’ (for analyzing drugged-driving impairment)," Komorn said. “On (11) occasions out of (74) they determine that a person was impaired by THC when it wasn’t in their blood.

" ... If it’s not in their blood, to suggest that the saliva proved it and the (drug recognition expert) proved it as a falsity."

Michigan State University statistician Dhruv Sharma analyzed the data and concluded that testing delays, handling and storage can cause drugs to break down and contribute to the contrary, negative results.

“Although the pilot study yields good results for the utilization of the device, caution is urged due to the small number of samples collected in this pilot study,” Sharma said. " ... Further data collection would be needed to be more confident in the findings from the perspective of statistical analysis and inference."

Other drugs were detected in the initial pilot program saliva tests and not in followup blood testing: In six of the 16 tests for amphetamines, in two of the seven tests for cocaine, and in one of the three tests for methamphetamines.

Opponents of the law that green-flagged the saliva testing program noted that the tests, in cases involving marijuana, can register THC well after the driver has smoked it.

“By some reports, cannabis use is detectible for up to 12 hours after ingestion or smoking, but other reports say a saliva swab may detect cannabis in a chronic user up to four days after ingestion,” the opposition argument said in the House Fiscal Agency analysis from 2016. “This is long past the time that a person’s ability to safely operate a vehicle would be impaired, as the actual window of impairment may be closer to three to four hours.”

John M. Koval III, a spokesman for the manufacturer, said the roadside test, which is currently in use throughout Canada, is meant as a screening tool for police to get drug-impaired drivers off the road quickly.

“As far as Michigan, it performed well enough to deserve" a second pilot program, Koval said.

The state police Impaired Driving Commission studied whether they could identify a threshold level of THC in the blood that contributes to impairment. The purpose was to establish a legal maximum amount of THC drivers could have in their system, similar to the .8% alcohol limit that is imposed on drivers under the influence of alcohol.

A March 2019 report determined “there is no scientifically supported threshold of (THC) bodily content that would be indicative of impaired driving,” due to a “poor correlation” between impaired driving and THC levels at the time blood is drawn. It also determined the level of impairment doesn’t correspond to the level of THC in the blood. Regular users have high tolerance while minuscule amounts of marijuana may cause significant impairment to infrequent users.

Komorn calls the effort of the pilot to detect and identify marijuana as the culprit for impaired driving using roadside tests “absurd.”

“The science just is not there,” Komorn said. " ... I advise people that if it has to do with saliva tests, you should refuse it."

East Lansing drugged-driving defense attorney Michael Nichols echoes Komorn’s recommendation.

He also criticized the government’s decision to spend more money extending a second yearlong pilot program in light of the results from the 2018 pilot.

“They come out and tell us, hey, this isn’t working all that well, so let’s continue doing it," Nichols said. “I think as long as MSP has the ear of a few legislators they’re going to continue to push of this forward.”

In 2018, Michigan State Police data shows 247 drug-involved traffic fatalities, representing about one-quarter of the 974 traffic fatalities that year. In 2010, state police reported 153 drug-involved traffic fatalities, representing about 16% of total traffic deaths. While the drug blamed in those cases wasn’t identified 95 percent of the time, in cases where the drug was included, 70 percent involved marijuana, according to state police.

The state law that mandates creation of a roadside analysis program for drug impairment stems from a fatal March 20, 2013, crash in Escanaba. Logging truck driver Harley Davidson Durocher, who was later determined by a blood test to have THC in his system, ran a traffic light and struck a Chevrolet Malibu, killing the passengers, Barbara J. and Thomas J. Swift Law, for whom the 2016 law was named.

Police say results from the second pilot program won’t be available until its conclusion later this year.

-- Gus Burns is the marijuana beat reporter for MLive. Contact him with questions, tips or comments at fburns@mlive.com or follow him on Twitter, @GusBurns. Read more from MLive about medical and recreational marijuana.

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