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Wednesday, June 21, 2017

You Can Bet on It: Roadside Drug Testing is Coming to Michigan - by Tim Beck



   In what may be a historic first, two persons in San Diego, California were arrested for marijuana impairment by the California Highway Patrol. These were not normal arrests. The drivers were busted  after being drug tested by a device called the "Drager 5000."

       The Drager 5000 uses a swab sample of saliva. The sample is then placed in a chemical solution and the result comes back within eight minutes. The Drager can also detect the presence of heroin, cocaine, meth, benzodiazepines and prescription opiates. In the San Diego arrests, when the device detected the presence of marijuana, the persons in question were taken to the police station and a blood test was administered. In effect, the Drager worked exactly like a "preliminary breath test" (PBT) now used by cops all across the USA to detect alcohol intoxication. PBT results are not considered valid in and of themselves. However, if the PBT result is positive for intoxication the person is arrested and a blood test for alcohol is administered. A blood test is considered the final word, and is almost always accepted in a court of law as "accurate."

     In Canada, police are now testing two devices to accomplish the same result. One is the "Securtec Drug Read" and the other is the "Alere DDS-2." Both devices use saliva samples and work essentially like the Drager 5000. No one has been arrested in Canada as a result of these tests so far. The devices are still in the "research" stage. So far, in a sample roadside test of 1,141 persons,15% tested positive for drugs, mostly marijuana.

     Once the kinks are worked out however, the Canadian Parliament is poised to pass bill C-46, amending the criminal code to make these testing devices part of the law enforcement repertoire. There is enormous demand in Canada and the USA for a sure way of dealing with the real or imaginary threat of more drugged drivers, as cannabis legalization slowly but surely moves ahead.

     Here in Michigan, Public Act 350, was signed by the Governor late last year.  The act appropriates $250,000 for a year long "study" conducted by Michigan State University, to find a standard to define impairment for cannabis and other intoxicating substances.

  I interviewed Public Act 350's sponsor,  State Representative Peter Lucido (R) Shelby Township, for this column.

     Rep, Lucido's background is a bit unusual for a Republican. Prior to his election to the House, he was a successful criminal defense attorney, as well as a probation officer at one time in his career. He has defended many persons accused of drunk and drugged driving. He was the key sponsor of recent bills which were signed into law, curtailing some police asset forfeiture abuses. He has a healthy skepticism for various law enforcement practices. He is also passionate in his quest to find a measurable standard for drug impairment, that most everyone can agree upon.

     He freely admitted this was a challenging goal as "some heavy drinkers with a high tolerance for alcohol, drive safely even if their blood alcohol level is over .08... but that is not true of most people" he continued... "the same can be said of other drugs too."

       Lucido took some time before proceeding with his bill. He visited Colorado and Washington State after cannabis was legalized and took a close look at law enforcement practices in Michigan. He also put the  Michigan State Police Toxicology lab under his microscope.

     What he found was the lab and some police officials had informally decided that .5 nanograms of active THC would be their standard of impairment and then proceed accordingly.

        "I don't want the State Police or anyone else, just pulling a number out of their ass and calling it impairment," he explained. He said he was also troubled by the fact that medical cannabis users in Michigan can have any amount of THC in their blood and for recreational users, the standard is zero tolerance. "This is not right."

         Finally, Lucido believes cannabis legalization in Michigan is "an inevitability" and will likely happen in 2018. He believes the results from his study will arrive "just in time" for Legislators to deal with the drugged driving issue when the matter is approved by the voters.

        As far as the study group is concerned, it's Board  will consist of the Director of the Michigan State Police  (or her representative) a physician, a forensic toxicologist, a medical marijuana patient and two professors from different research universities. Lucido was adamant he wanted this to be a legitimate study, not junk science.

       "I want to hear from everyone," he explained, which is why a medical marijuana patient will be a member of the board. At this point, a board has yet to be appointed by the governor, even though the law took effect March 27, 2017.

     Looking at the big picture, it appears Rep. Lucido is well intended and he did his utmost to make sure honest science is used in the study. What the result will be is anyone's guess.

        Nonetheless, developments in California, Canada and Michigan are either good or bad news.

  For fearful members of the public, as well as law enforcement, prosecutors and groups like "Mothers Against Drunk Driving (MADD) a scientific standard for impairment is the only fair answer. Others say there should be no standard except bright line, video taped proof of impairment.

   Unfortunately for those of us who believe in the later perspective, the tide of events do not seem to be breaking our way.


Tim Beck is Chairman of the Safer Michigan Coalition. The Coalition's goal is to fully legalize the use of cannabis by all adults in Michigan

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