With the implementation of roadside cheek swabs in California, the percentages of those arrested for driving under the influence of marijuana and other drugs have climbed significantly. These tests expect increases in the number of drivers under the influence. However, you might be wondering how and under what circumstances are these tests conducted?
Many question the morals and ethics of state law officials, contending that these searches violate civil rights. Others think it will keep the highways safer. Both are valid concerns, and perhaps the truth lies somewhere in the middle. Here is everything you need to know about roadside cheek swabs in California.
Violation of Rights
Some view roadside saliva testing as unconstitutional and a breach of due process and equal protection. Since many believe that these are warrantless tests, the fear is that these cheek swabs might have them testing positive for commonly prescribed drugs resulting in fines or arrests for the medications that they are taking. It could be seen as unethical and morally wrong because those who suffer from disabilities that test positive because they are taking medication will be held for more extended periods during interrogation. From a racial standpoint, statistics show that minorities are disproportionately stopped and searched and will likely be subjected to the test more frequently.
There is also the argument of personal dignity and privacy. A saliva test is viewed as much more invasive than a breathalyzer test because it concerns removing oral fluids and DNA. The argument here is that if there is no cause to suspect impairment, then the driver’s privacy should be maintained.
Right to Refuse
While these stops are often referred to as warrantless searches, a driver does have the right to refuse. An officer might only ask for the driver to perform a test. However, they cannot force the driver to take the test. There still might be a penalty for refusal that results in a DUID or even an arrest. This happens when the officer witnesses unsafe driving and detects that the driver has taken drugs. Signs include bloodshot eyes, the smell of marijuana in the vehicle, or drug paraphernalia out in the open. In some cases, if the officer suspects drugs, they can issue a warrant. And, if the driver already has a warrant, they cannot refuse a test. It comes down to the situation and the judgment of both parties. Likewise, the State of California assures that testing will only ever occur if a driver seems suspicious–even sobriety checkpoints are said to be a neutral zone–and that it comes down to the judgment of the officer supervising.
While the driver can refuse a test, refusal of a test is seen as a civil infraction, which incurs a fine that varies by the community; however, many defense attorneys suggest that this fine could be a better option than taking the test. This is because there is still much in question over the accuracy of the saliva test.
Test Accuracy: Saliva vs. Breathalyzer
Because of the ease of administering a cheek swab, the saliva test is seen as a favorable alternative, unlike a timely urine and blood sample. Some believe that the test is 98% accurate, but this statistic is more of a half-truth. It depends on what the test is looking for and the time frame in which it is administered. To further reinforce concerns, the National Highway Traffic Safety Administration states that it has not yet been established whether the saliva testing devices are accurate or reliable. Results vary based on the type of test, the drug concentration, the state of the person being tested, and how well the test is administered. Further, results suggest that oral testing offers weaker results than blood, urine, and even breathalyzers.
Since there is more to be discovered about oral testing, the State of California has allowed for pilot testing, which involves taking the time to study the test’s accuracy. The concern to refine these testing methods is valid because they could keep many people from their most fundamental liberties. However, while the attempt to determine efficiency is essential and studies thus far have shown results in favor of the test, the sample size is so small that more testing will need to be done, which can become very costly for the state.
What to Expect Moving Forward: The New Norm
In California, unlike BAC, there is no fixed amount to determine how much drugs in your system can be considered the amount that creates impairment. This is particularly concerning for those who might have small traces of marijuana or medications in their systems, and further distressing if the amount you are taking is legal and necessary to treat your health. The bottom line is, more testing will need to be done to help regulate and protect those who are not driving impaired or with legal amounts of drugs in their system. However, this could take years to establish. While states seem to be moving forward with oral swab tests and sobriety checkpoints, this could result in many drivers being wrongfully prosecuted.
Right now, your best defense might be the refusal of the test. However bleak this might seem, if you feel your rights are being violated, refusal will result in a civil infraction. However, according to most attorneys, this fine will be a better alternative to possibly being prosecuted under unreliable test results. You might want to consult an attorney beforehand if you take medication and are worried about being wrongfully prosecuted.
Is This the Best Approach?
Roadside cheek swabs are not all bad. Creating safe highways is important, and preventing impaired drivers from harming themselves and others is also important; the question comes back to whether this is constitutional, moral, ethical, or even the most effective approach. Not just for those being wrongfully prosecuted, but for those who struggle with addiction and need help. The checkpoints and traffic stops are only the first lines of defense and the focus might equally benefit from follow up and being educated on how to appropriately sentence and rehabilitate those who have a mental disorder, an addiction, or both.
When you are worried about being wrongfully prosecuted, True Recovery offers 24/7 assistance. It provides one of the top Court Services in California to help deal with such scenarios. Attorneys here offer more than most defense attorneys because they are also advocates for civil protection. Whether you need someone or not, a consultation to further educate yourself will better prepare you to handle such situations. Likewise, if you are struggling with addiction and suspect that it is only a matter of time before you make a mistake behind the wheel—seek help.
Getting treatment through True Recovery is unlike any other treatment center because it offers alternative ways to manage sobriety needs relevant to you. To learn more, call us today at (866) 399-6528.