By Eric Ganci
Police have a new addition to try and fight the war on impaired driving: the Drager 5000. This device swabs the person’s mouth/cheek area to screen saliva for non-alcoholic intoxicating substances, including amphetamines, cocaine, marijuana and prescription drugs. This test is given before arrest, and acts as a field sobriety test. For attorneys who may provide guidance on this new device, there are a few important things to note, both scientifically and legally:
What Is It?
The Drager 5000 simply screens for the presence of certain types of drugs. Science refers to this as “presumptive” testing, and science also requires if you do a presumptive test and get a result, then you must do a second test as a confirmation. Also, as a presumptive test, it does not quantitate a certain amount. So, even if the device reports a number, it’s certainly not to say that number is a scientifically valid number by any means. The easiest way to think about this is a metal detector: While a metal detector may sense or detect some type of metal, it may not know (and probably does not know) the type or amount of metal.
Your Client May Not Need to Do This Test If You Wish to Refuse
This test is usually not required — and usually you can refuse this test. California law requires (per implied consent) that a driver submit to a chemical test after arrested on suspicion of driving under the influence (of either alcohol, drugs or both in combination). This Drager mouth swab test is not that implied consent chemical test, and is offered before arrest.
While there is no California Vehicle Code section exactly on point (yet) for this device, it’s akin to the same test given to test for the presence of alcohol before arrest.
This code section, California Vehicle Code 23612(i) mandates that if an officer decides to use this preliminary alcohol screening test, s/he must — is required to — advise the person they have the right to refuse this test. And a person refusing this preliminary field test cannot be used against the person or even admitted as evidence (see People v. Jackson (2010) 189 Cal. App. 1461, 1469). Now, certain groups of people cannot refuse this preliminary pre-arrest test (if you’re under 21 years old or on probation for a DUI/wet reckless), but you have the full right to refuse as long as you’re not in those classes.
Issues to Understand
In June 2014, in preparation for when this time would come, I attended a training for the Drager 5000. Rarely are machines perfect, and at that time there were issues … and those issues may still be present currently. For example, the device prompts when maintenance is needed, but the user can bypass this prompt. Same for the expiration dates for the sampling strips used: the machine prompts for when those strips are out of date, but the user can bypass that prompt too.
The machine has the ability to download the last 500 samples through a USB connection, but you need its software to do so.
These are interesting times, as the city has received grant money to prosecute drug impairment DUIs. The best thing you and your clients can do is educate yourselves on the law and science. Because this can affect and report people who are using, even if they’re taking their prescribed dosage of meds.
Eric Ganci is a solo practitioner.
This article originally appeared in the July/August 2017 issue of San Diego Lawyer.