Attorney: Drivers should put the brakes on roadside drug test

A Nov. 3, 2017 image of the device that tests drivers' swabs for drugs.


GRAND RAPIDS, Mich. (WOOD) — Thursday was the first day of a year-long pilot program where police will be testing for drugged driving.

While law enforcement sees this as a new tool to keep highways safe, some attorneys see it overreach by police. Attorney Bruce Block says whoever gets offered the test should say, “none for me, thanks.”

Police said Thursday the handful of officers on the streets trained to use the testing equipment had not used it in the last 24 hours.

Michigan State Police Special Lt. Jim Flegel showed 24 Hour News 8 how the program works and explained why it is needed.

“Unfortunately, over the last year, we’ve seen a huge increase in the amount of fatal crashes involving impaired drivers,” Flegel said

Why there has been an increase could be because of an increase in drug use coupled with an increase in testing.

Police will be using a mouth swab that will test saliva using a handheld device that shows whether drugs are present.

“It tests for amphetamines, methamphetamines, benzodiazepines, cannabis or THC, cocaine, opiates,” said Flegel. “If they do detect impairment on drugs, they’re asking the driver to do an oral swab test.”

It’s a test program involving 26 specially trained officers in five counties, including Kent and Berrien. So far in Kent County, only the State Police have been on the road with the program. Four Grand Rapids and three Kent County drug recognition experts are expected to be out soon.

“They know whether or not the person operating the vehicle is impaired on drugs or alcohol or even a combination of both,” Flegel said. “These police officers are specifically trained, they go through a two-week training course.”

Attorney Bruce Block is not exactly impressed with their credentials.

“You have someone who is a so-called ‘expert’ who has 72 hours essentially of classroom and about three or four days of testing their theories,” Block said. “Now whether you’re impaired or not, why, I suppose that’s up to this so-called expert. The problem is he’s not an expert — in his mind, everybody’s impaired.”

“He’s certified by the International Association of the Chiefs of Police. You know, who?” Block added.

Like a breathalyzer test that checks for alcohol levels, the driver can refuse a roadside drug test.

“If you don’t agree to it, it’s a civil infraction with a $200 fine,” Block said.

Block says there is a significant possibility that legal drugs can give a false positive leading to a blood test.

Also, unlike breathalyzer tests, the drug tests do not show how impaired someone is, only that they have drugs in their system, which is enough to result in a DWI charge.

“It’s not unconstitutional to take on oral fluid swab, it’s actually less invasive than taking blood from person,” Flegel said.

Block said the way the program is designed and the fact that the swab test is done with consent keeps it ostensibly constitutional. But if someone refuses to take the test, police have to come up with probable cause for arresting or detaining a driver in order for it to hold up in court.

“If you voluntarily agree to this saliva test, you’ve just waived your right to have a speedy ticket and on your way,” Block said.

Block said people need to know they are not obligated to take the test.

“I have advised client after client after client, including my friends and relatives and my wife, don’t take it,” Block said.

It’s still an infraction, so when it comes to following this advice, your mileage may vary.