Will Oral Swabs Become a New Standard for Roadside Drug Testing?

Oral swab test

Blood, breath, and urine tests for the presence of alcohol or drugs are all standard, but authorities in California are considering adding another way to test suspected persons for the presence of substances: oral swabs. Police in Sacramento, Bakersfield, Fullerton, and Los Angeles conducted a pilot program of the oral swab test in 2013 and 2014. Now, the first person in California to be found guilty of a crime where evidence of an oral swab test was used at trial is awaiting sentencing.

Bakersfield was chosen as one of the locations for the oral swab pilot program due to the high rate of drunken driving arrests, as well as the high percentage of methamphetamine users relative to other cities in California. As it happens, the first trial where oral swab evidence was introduced was that of Junior Salas, of Bakersfield. Salas was arrested at the scene of an accident that had left another driver dead and that driver’s passenger seriously injured. Salas underwent a breathalyzer test at the accident scene, followed by breath, blood, and oral swab tests at the police station. The oral swab test revealed the presence of both methamphetamine and marijuana in Salas’ blood, and the blood test revealed a blood alcohol level of .03. Salas was found guilty at trial of vehicular manslaughter while intoxicated, and driving under the influence of alcohol or drugs causing bodily injury to a separate person. He could face up to seven years in prison when he is sentenced later this week.

Oral swab tests, while new to the US, are not a new technology. Developed decades ago, the devices are more commonly used in Australia and Europe. Oral swab tests allow authorities to identify the presence of certain drugs which tend to metabolize quickly, making them difficult to detect in blood or urine tests. However, oral swab tests are unable to tell testers how much of a particular drug is in the tested person’s system. In California, there is as yet no blood concentration level of marijuana which is set by law as qualifying a driver as “intoxicated,” as there is with alcohol. As a result, evidence of the presence of marijuana or other drugs in any amount from an oral swab test could be enough to support an officer’s opinion that a suspect is impaired based on their behavior. While makers tout the tests as extremely reliable, authorities who used the devices in Sacramento had six false positives out of 34 drivers tested. Prosecutors in Orange County did not feel sufficiently confident in the test results to use them in court. California Assemblyman Tom Lackey, a strong proponent of the bill allowing swabs, believes oral swabs will soon become a regular component of an officer’s intoxication detection toolkit, so this may not be the last time a California DUI trial involves oral swab evidence.

If you have been arrested on suspicion of DUI or DWI, contact the skilled and knowledgeable Ventura criminal defense attorney Paul Tyler for a consultation on your case, at 805-981-3916.

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