handcuffs

A man in handcuffs next to a Michigan State Police cruiser.

(Courtesy | Michigan State Police)

The Michigan State Police is tasked with creating a one-year pilot program for roadside drug testing, to be administered to drivers suspected of being on drugs while behind the wheel.

The agency is working to select five Michigan counties to establish the pilot program by the end of this year, Michigan State Police spokeswoman Shanon Banner said.

We asked MLive readers for questions about the controversial new law, and Banner provided responses.

Here's a look at questions asked to the MSP and responses from the agency:

Q: What drugs are the saliva-based tests meant to detect?

A: The specific test kit that will be used in this pilot has not been determined yet. Oral fluid test kits test for a variety of controlled substances and vary slightly depending on manufacturer. Typically, they range from six panels of different drugs to 12 panels of different drugs. Some of the common controlled substances on the panel include: amphetamines, methamphetamines, benzodiazepines, cannabis (marijuana), cocaine and opiates.

Q: What test (brand, etc.) is going to be used? Any information on the test or why it was selected? Is there a known margin of error? Are there multiple different tests for different drugs?

A: We're still in the process of evaluating different manufacturers of oral fluid test kits and instruments.Each manufacturer has different margins of error. The test kit that is eventually selected will test for multiple drugs at one time, using a single kit.

Q: People are asking about testing thresholds (amount of a substance concentration in the body that will trigger a positive), and wonder how police will be able to tell the difference between persons impaired at the moment and persons who used drugs days ago but are sober when they encounter the police?

A: The thresholds vary by manufacturer.

In order to receive an oral fluid test, a driver must be suspected of impaired driving -- there will be no random traffic stops or traffic check points. The police officer making the traffic stop must follow established policies and procedures and have reasonable suspicion to make a traffic stop. For the pilot program, only specially trained Drug Recognition Experts (DRE) will administer an oral fluid test.

DREs possess advanced training in the assessment of person's impairment due to the use of alcohol, drugs, or both. If a DRE suspects a person is impaired by drugs, they will follow existing procedures to establish whether or not the person is in fact impaired. Arrest policies and procedures for impaired driving will not change due to this pilot program and arrests will not be made solely on the results of an oral fluid test.

Q: Can the MSP say anything about how it will ensure tests are accurate and not providing a false positive?

A: During the pilot program, confirmation testing will be conducted by an independent accredited laboratory to ensure the accuracy of the test kits and instrument. This second test will allow us to verify the roadside test kits are not providing false positive results.

Q: What happens to the person's DNA on the swab after the test is performed?

The purpose of roadside oral fluid testing is to provide officers with another tool to detect impaired driving; the purpose is not to collect DNA samples. After the results have been verified on the oral fluid test kit, the sample will be destroyed. No DNA will be retained.

Q: Could you address questions about the constitutionality of the test/search? And consent/implied consent of the test?

A: The United States Supreme Court has ruled there is minimal physical intrusion in swabbing the inside of a person's cheek or scraping underneath a person's fingernails to find evidence of a crime. Both procedures have been upheld as constitutional warrantless searches.

The oral fluid analysis is similar to the preliminary breath test (PBT) for alcohol detection in that it is a tool to be used to determine if certain drugs are present. Also similar to the PBT, refusal to submit to oral fluid testing is a civil infraction.

Q: What issues, specifically, is the MSP hoping to learn about and determine during the pilot program? Are the specific thresholds for substances already set, or is that something the MSP will consider during the pilot?

A: Following completion of the one-year pilot program, the Michigan State Police will submit to the legislature a report that includes 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 number of traffic stops resulting in an arrest for operating under the influence of a controlled substance as a result of roadside drug testing by a certified drug recognition expert and 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.

Q: Please also let me know if the MSP wants to make any statement, or would like to add something to the discussion about what is going on that readers should know.

A: The purpose of the one-year pilot program is to determine the accuracy and reliability of oral fluid test kits/instruments and to give DREs another tool assist with combating the dangers of impaired driving. Impaired driving fatal and serious injury traffic crashes continue to increase in Michigan and throughout the United States.