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Steven Gursten on roadside drug testing

By Steve Thorpe
Legal News

Gov. Rick Snyder has signed into law Public Acts 242 and 243, which will allow specially trained police officers to conduct roadside drug testing and make arrests based on the results. The new laws take effect Sept. 22. Steven Gursten is head of Michigan Auto Law, the state's largest law firm handling car accident, truck accident and motorcycle accident cases for more than 50 years. He frequently lectures at legal seminars throughout the country on topics such as trial advocacy, Michigan No-Fault law, traumatic brain injury cases and maximizing settlements for those injured in car and truck accidents.

Thorpe: Give us a brief overview of the new law.

Gursten: The new law creates a one-year, five-county pilot program wherein specially trained police officers who are "certified drug recognition experts" are authorized to conduct roadside saliva testing of drivers who are suspected of driving under the influence of a controlled substance. This provides law enforcement another resource - in addition to the existing preliminary chemical breath tests - for identifying, apprehending and stopping drivers who are "operating a vehicle while under the influence of a controlled substance," such as cocaine or marijuana.

Thorpe: The new measure starts with a one-year pilot program. How will that work?

Gursten: The new roadside, saliva testing law authorizes the Michigan State Police to establish a pilot program - one year in duration - in five Michigan counties where roadside drug testing will be conducted to determine if suspected drivers are driving while under the influence of a controlled substance. For a county to be eligible to participate in the pilot program, the county must have within its ranks of Michigan State Police, county Sheriff Deputies and city police at least one law enforcement officer who has been certified as a drug recognition expert.

Thorpe: What is a "certified drug recognition expert" and how do they figure in the new law?

Gursten: The new roadside, saliva testing law defines a "certified drug recognition expert" as "a law enforcement officer trained to recognize impairment in a driver under the influence of a controlled substance rather than, or in addition to, alcohol." The "certified drug recognition experts" are an essential part of the new law because they are the only law enforcement officers who have the legal authority to request - under the new law - that a suspected drug-impaired driver submit to a roadside, saliva test or, as the law says, a "preliminary oral fluid analysis." Significantly, the new law also provides that only a police officer who is a "certified drug recognition expert" may arrest a suspected drug-impaired driver on the basis of the results of a roadside, saliva test.

Thorpe: Some proponents claim that the law will help protect drivers with medical conditions. Agree?

Gursten: I think the new law could help protect drivers with medical conditions. Ironically, though, I don't think it's the saliva test, itself, that will provide the help, but rather the specially trained police officer who's uniquely authorized to request and administer the test. Having been trained "to recognize impairment in a driver under the influence of a controlled substance," a "certified drug recognition expert" will hopefully be able to discern the difference between a substance-impaired driver and a driver suffering under, say, the disability of a medical condition. As a result, a medically-at-risk driver will hopefully receive the prompt and necessary medical care he or she needs, and he or she will also be spared the frustration and embarrassment (not to mention possible legal costs) of being wrongly accused of drug-impaired driving.

Thorpe: Some opponents question the scientific validity of the tests. Agree?

Gursten: We know where many of the criminal defense lawyers are coming down on this issue, but it is premature. The scientific validity of the tests will hopefully be confirmed and thoroughly-established by the Michigan State Police before the testing kits are put into use as part of the pilot program. No doubt the scientific validity of the tests will also be carefully scrutinized by our legal system as the test results are challenged in court by drivers who have been arrested on the basis of the results of roadside, saliva testing. My hope is that this improves the testing and protocols for administering it, and does not stop the saliva testing altogether. I am supporting this because I believe overall the program will reduce the staggering numbers of motor vehicle accidents on our roads, and save lives. I believe this makes us all more safe.

Thorpe: What happens at the end of the pilot program?

Gursten: Within 90 days of the pilot program ending, the Michigan State Police must submit a report to the House and Senate judiciary committees detailing: how and why the participating counties were selected; the different types of law enforcement agencies that took part in the pilot program's roadside saliva testing; the number of traffic stop arrests for driving under the influence of a controlled substance that resulted from the roadside saliva tests; and, the number and type of convictions that were obtained. Additionally, the new law allows the Michigan State Police to establish new and additional one-year, pilot programs in counties that were not part of the 5 that participated in the initial pilot program.

Published: Mon, Sep 12, 2016

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