Legal issues surround bill related to use of narcotics

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By Mike Scott
Legal News

One state legislator has proposed a bill that would allow police to give drivers a saliva test for illegal drugs, such as marijuana and cocaine.

If the proposal is enacted, Michigan would be the first state in the nation to implement such roadside drug tests. At least one notable defense attorney believes there shouldn’t be any legal reason as to why state governments couldn’t develop a statute to test other illegal substances using a swab method.

State Rep. Rick Jones, R-Grand Ledge, a former Eaton County sheriff, has proposed a bill that would allow police to give drivers a saliva test for illegal drugs, such as marijuana and cocaine. Under this proposed bill, police officers would have the opportunity to start testing for more of a variety of substances other than alcohol during a roadside traffic stop.

Testing drivers for drugs now requires blood or urine tests that can take days, weeks or months. However, swabbing drivers as part of a saliva test offers a much shorter turnaround time of as little as 20 minutes. It would be handled in a similar way as alcohol testing, with law enforcement officials able to test if the motorist’s driving, actions or any physical evidence suggests that they may be under the influence of narcotics, Jones said.

Jones introduced House Bills 6430, 6431, and 6432 in September. They are now in the House Judiciary Committee. A date when the committee will take up the issue has not been formally scheduled.

There aren’t many valid legal reasons as to why such a statute couldn’t be made into law, said Richard Zuckerman, a partner and co-chair of the firm’s White Collar Criminal Defense and Investigations Practice Group for Honigman Miller Schwartz and Cohn in Detroit. The Supreme Court already has allowed blood samples, DNA samples, and fingerprints to be used as ways to identify guilty individuals.

Each of those examples may be used if an officer has a legitimate reason for expecting some type of crime as occurred. But swabbing an individual’s mouth goes a few steps further, and is an act of a personal nature that may require that even more stringent guidelines be used.

“A court could decide this process is more invasive than a breathalyzer test for example,” Zuckerman said. “There’s not a big difference between the two actions in one way because there should be some suspicion of the driver being under the influence to give such a test. But there is a difference in that to give a breathalyzer you only need to smell alcohol, whereas you likely can’t smell if a person is under the influence of certain illegal substances.

“If an officer notices a motorist swerving or driving erratically though, there is not much difference between a swab and breathalyzer,” Zuckerman added. “I would think you would need to have some reason in thinking that the driver is impaired to swab.”

One of the potential legal issues is that the swabbing of a driver’s mouth can be considered invasive. It may be difficult to justify a saliva test if a driver is being pulled over for a broken taillight. A well-drawn statute should pass the constitutional test, Zuckerman said, but no state has done so yet, indicating that it might be difficult to achieve. 

However, passing such a law is as much a political issue as a legal one, Zuckerman said.

“The issue is often the sensitivity of the state legislatures in actually passing a law depending on what they perceive voters will think,” Zuckerman said, adding that the political party in charge could also impact such a law. “If the average voter believes such a law may be an invasion of rights, you probably won’t see the (state) legislature take this law up. So often it is going to boil down to voter reaction.”

If such a law is passed and signed into state law, Zuckerman would anticipate that it could be challenged fairly early in the process. He said such a challenge would likely come from someone who has been pulled over, has little or no driving record, and has the wherewithal to challenge the law him or herself, or would be backed by a public interest group.

“You would need a really good set of facts to challenge such a statute,” Zuckerman said. “There is a saying that bad cases make bad law. For those who wouldn’t support such a law, you almost have to hope that the first challenger to the law would have a very benign profile or record.”

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