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AUTHOR: Judge Mary Celeste (ret)
Judge Mary A. Celeste (ret.) sat on the Denver County Court bench 2000-2015. She was the Presiding Judge 2009 and 2010 and the co-founder of the Denver County Court Sobriety Court. She is currently a law school professor teaching Marijuana and the Law at California Western School of Law and researcher under a contract with NHTSA and NORC on the topic of the prosecution of drugged driving cases. She is a former member of the Judicial Advisory Board member for the Foundation for the Advancement of Alcohol Responsibility (FAAR) and Faculty for the National Association of Drug Court Professionals (NADCP) and the National Judicial College (NJC). She has also served as the past chair of ABA National Conference of Specialized Court Judges; the President of the American Judge’s Association and the Colorado Women’s Bar Association Foundation, and, as a National Highway Traffic Safety Administration (NHTSA) Judicial Outreach Liaison. She has written many articles and is a national speaker on the topics of marijuana; marijuana and drug impaired driving, drugged driving and specialty courts. She has presented to AJA; ALA; NEADCP, NADCP, APPA, AJA, ABA, DATIA, NHTSA, NEADCP, Lifesavers, Pennsylvania DUI Association, Michigan and Louisiana Association of Drug Court Professionals and to Judges, Specialty Court Conferences, and Safety Highway Offices in the States of Arizona, Arkansas, Colorado, Florida, Georgia, Illinois, Kansas, Pennsylvania, Massachusetts, Michigan, Nebraska, Nevada, New Mexico, North Carolina, North Dakota, Oklahoma, Texas, Utah, Washington, Wyoming and in Canada.
For many years blood and urine testing for alcohol and drug detection has been the gold standard in the workplace, with law enforcement, and, in the courts. Blood and urine testing typically utilizes gas chromatography–mass spectrometry (GC–MS) in either a lab setting or on site and the results has been found to be scientifically admissible in a court of law. There are newly developing alternative testing devises that use oral fluid and drug breathalyzers. Several factors are contributing to the development and use of these alternatives.
The obvious factor is that blood and urine testing are more invasive techniques than oral fluid and breathalyzers. Another may be the length of time it takes to conduct the test or to send and get the results of the testing from an outside lab. Yet another factor is specifically related to law enforcement. Law enforcement has seized blood to check for driving impairment for alcohol and other drugs routinely without a warrant until recent U.S. Supreme Court cases[i] mandated a warrant first. The issuance of a warrant requires a review and execution by a judicial officer or judge. Because alcohol and drugs remain in the bloodstream for a somewhat short timeframe, with active THC leaving the blood within hours,[ii] this new mandate has made it difficult for law enforcement to speedily retrieve the blood. Blood retrieval requires licensed phlebotomist or medical personnel in a setting other than at the roadside. Some states have resorted to training law enforcement as phlebotomist to accelerate the process.[iii] This challenge has resulted in several states creating expedited warrant systems[iv] and prompted oral fluid testing pilots.[v] Roadside oral fluid testing is already in place in the UK, Australia, Canada and parts of Europe.[vi]
In the workplace context, urine testing is still premier, however there is growing usage of oral fluid testing so much so that the Substance Abuse and Mental Health Services Administration (SAMHSA) “has established scientific and technical guidelines for the inclusion of oral fluid specimens in the Mandatory Guidelines for Federal Workplace Drug Testing Programs. It will allow federal executive branch agencies to collect and test an oral fluid specimen as part of their drug testing programs.”[vii]
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Oral fluid testing although growing in popularity[viii] is not without some stated issues. “Oral ﬂuid collection is easy and noninvasive and is therefore a valuable alternative to blood in DUID cases. However, unlike blood, the composition of oral ﬂuid varies widely both intra-and inter-individually and the determined drug concentration depends on the way the oral ﬂuid is collected.”[ix] “One study of 301 drivers in Norway found that one of these oral fluid devices had a 14% false positive rate for marijuana, and 87% false positives for cocaine, compared with blood tests.”[x] Another study found the devices “frequently failed to detect high concentrations of THC with false negative rates of 9% and 16% respectively, When saliva THC concentrations were very low or negligible, with false positive rates of 5% and 10%”[xi] Even a legal challenge has been brought against the results of one of these devices.[xii] There may also be relatively hefty price tags for these machines[xiii] and no court scientific admissibility as of yet.
Alcohol breathalyzers have been used at the roadside by law enforcement for many years. These devices typically use infrared (IR) spectroscopy[xiv] and are admissible in court. The U.S. National Highway Traffic Safety Administration (NHTSA) maintains a conforming products list of breath alcohol devices approved for evidentiary use.[xv] Drug Breathalyzers are being heralded as the drug testing panacea as they are the least intrusive form of testing device. It is starting to make a showing with many companies jockeying for position in the marketplace. One company is currently involved in a law enforcement roadside pilot.[xvi] Another is postured to release their devise and has a pending patent for a marijuana car interlock.[xvii] Some of these devices test for a variety drugs while others test for marijuana[xviii] or marijuana and alcohol. With the exception of one devise being developed at the University of Pittsburgh who claims that they can accurately detect THC levels from breath,[xix] these devices cannot quantify the amount of the drug present although one company proports to be able to determine that marijuana was used within the last three hours.[xx]
These devices are also not without issues. Should the Pittsburgh devise come to fruition it could assist law enforcement in those states that set per se marijuana driving laws but per se levels aren’t always indicative of impairment.[xxi] “Even though a few states have enacted laws that attempt to put a limit on how much THC causes impairment, no consensus has been reached on what level is unsafe for driving.”[xxii] Also detecting that someone has used marijuana within the last three hours does not necessarily equate to driving while impaired or being impaired at the workplace. All of this just opens the door to toxicological arguments in the courts. If the objective is for law enforcement to establish probable cause for further roadside investigation or arrest swiftly, it would probably be cheaper to use saliva testing strips that are typically used as a screen in the courts and workplace.[xxiii] The strips do not quantify and merely identify a positive presence of a drug or alcohol. [xxiv]
Additionally, if the devise renders an actual THC level or does indeed determine that use occurred within the last three hours, it may be helpful to the workplace setting if any level is detected or if the three-hour timeframe unfolds during working hours, and, most importantly, it is a zero tolerance workplace. But again, like law enforcement challenges with breathalyzer results, arguments related to recent use could end up in the courts on the issue of impairment. There is also the caveat that there may be protections for the medical marijuana user/employee under local or state laws or appellate caselaw. For example, some states by statute or appellate decisions protect an employee who uses medical marijuana in hiring, discipline, testing and termination.[xxv] In this instance, the use may be legally acceptable which leaves the employer having to prove impairment. There is also the fact that these devices have not been found to be scientifically admissible in a court and may have a relatively hefty price tag.
Intelligent Fingerprinting technology that utilizes antibody nanoparticle science and sweat is not to be ignored.[xxvi] This device is optimally the least intrusive approach in that it only requires placing a finger on a pad and does not require any human secretion other than the antibodies and sweat. It meets the objective of identifying a positive use of a drug and does not proclaim to provide any specific levels or determine timeframes of drug use. For law enforcement and zero tolerance workplace environments, this may be incorporated for the purpose of establishing probable cause for arrest, further testing that is admissible in court, or potential workplace determinations like reasonable suspicion.
Whatever the devise or approach to drug testing, the old GC/MS science and technology should be respected primarily due to its admissibility in the courts where impairment issues are addressed and resolved. Unless these newly developing devices can establish that the underlying science and technology can meet the legal standards under case law for admissibility,[xxvii] which could happen with the right arguments and skills, they may only serve as good screening tools.