Police face an increasingly common challenge: how to tell if a driver is high.
As states legalize marijuana use, opioid abuse runs rampant, the methamphetamine crisis continues and new synthetic drugs hit the streets, law enforcement authorities say it’s more common than ever to encounter motorists who are under the influence.
In response, police are pioneering a new generation of chemical tests designed to detect drugs quickly in drivers’ bodies, eventually during a roadside stop. They’re like breath tests for alcohol, but they use mouth swabs to screen for at least a half dozen other drugs.
One west suburban department plans in the coming months to start testing suspect drivers for marijuana, cocaine, amphetamines, methamphetamines and opiates like heroin.
Carol Stream police, who are known for their aggressive enforcement of drunken-driving laws, say they’re expanding their attention to drugs because they see the effects on drivers but aren’t always sure which drug is involved. It’s believed to be the first agency in the state to try the new driver drug tests.
“If it’s going to be like a breath test, that’s a game-changer,” Sgt. Brian Cluever said. “If we can make our roads safer, we want to do that.”
Police in California, Colorado, Kansas and Michigan, as well as Australia and many European countries, are already using or testing such devices. But critics, like some marijuana proponents and civil rights advocates, question how well the tests work and whether they’ll be used properly.
Defense attorney Don Ramsell, for one, is skeptical. He says judges have yet to certify that the tests are accurate.
“They might just as well hand somebody a bag of nachos and see if he eats it,” said Ramsell, who specializes in driving under the influence law. “That’s just as valid.”
Ultimately, the debate over whether roadside drug tests can be used to help arrest drivers will probably end up in court.
Unprecedented rise in drugged driving
Alcohol has long been the leading mind-altering hazard on the road, involved in about 10,000 driving deaths each year. A lengthy public campaign to reduce drunken driving and increase the use of seat belts and air bags has cut the number of deaths by half since the early 1980s.
A variety of devices were invented to test drivers for alcohol, including the Drunkometer, Intoximeter and Breathalyzer. Police began widespread use of portable breath-testing devices in the 1980s.
But in 2015, for the first time, the number of drivers involved in fatal crashes nationwide who tested positive for drugs surpassed the number of drivers who had alcohol in their systems, according to a report by the Governors Highway Safety Association.
Some states that legalized marijuana use saw marked increases. After Colorado made cannabis legal for medical and recreational use, the number of drivers in fatal crashes who tested positive for marijuana more than doubled since 2013, according to published reports.
Those numbers do not prove the drivers involved were impaired, because remnants of marijuana can remain in the body for days or weeks after use. Only some of the drivers involved in crashes were tested, and the amount of drugs present might not have been enough to play a role.
But traffic officers say they increasingly see people on the road who appear to be on something — in many cases prescription drugs, which are also illegal if they impair driving.
Looking at fatal crashes in Illinois, it appears more people are driving with drugs in their systems. While the percentage of crashes involving alcohol dropped 30 percent from 2007 through last year, the number of drivers who tested positive for marijuana tripled in that same time, to almost 15 percent, according to Illinois Department of Transportation figures.
As a result, companies like Draeger, headquartered in Germany, and Alere, owned by north suburban Abbott Laboratories, are marketing testing devices to law enforcement.
The companies claim a high degree of accuracy. A 2015 study in the Journal of Analytical Toxicology found the Draeger DrugTest 5000 accurately predicted the presence of a drug 93 percent of the time. But other studies have found varying degrees of success, depending on the device.
In Michigan last month, state police started a one-year pilot program of saliva roadside testing in five counties. State lawmakers passed a law authorizing the program, with a fine for drivers who refuse the test, Michigan State Police First Lt. Jim Flegel said.
Police will compare the test results from the Alere DDS2 device with a second swab that will be tested at an independent laboratory, and with a blood draw, which if refused can lead to a license suspension. The program is off to a promising start, and if testing proves accurate after one year, it can be continued and expanded to other counties, and hopefully ultimately introduced as evidence in court, Flegel said.
A ‘game-changer’
Under current Illinois law, police may seek a blood, urine or breath sample if they suspect a driver is impaired by a controlled substance, and a driver can face a one-year license suspension for refusing. But such tests are cumbersome, expensive and time-consuming, often requiring a trip to the hospital, and often take an hour or two, by which time the body may have eliminated the drug.
In contrast, the new type of test is designed to be easy, quick and portable. And rather than simply giving a positive or negative result, as many current blood tests do, the device that Carol Stream police plan to test, called P.I.A.2 , gives measurements for the amount of drugs present.
That’s important, because while Illinois used to define impairment as having any amount of cannabis or other controlled substance in the body, last year lawmakers raised that minimum threshold to 5 nanograms per milliliter in the blood, and 10 ng/mL in other bodily fluids.
But the Illinois State Police crime laboratory is not certified to give such precise measurements, and local police agencies say it can take months to process a request. Therefore, police sometimes send samples to private labs, which can be quicker but also costlier.
That’s where the new field test comes in. For drivers who submit to a blood draw, Carol Stream police plan to ask them also to volunteer for the mouth swab, not for use in court, but simply to compare its accuracy to the lab test. The department plans to conduct at least 100 comparisons over the next year, beginning around March.
Testing devices can cost $3,000 to $6,000, but the manufacturer of the unit in question, a German company called Protzek, will provide it for free to the village. Officials claim its accuracy is comparable to state-of-the-art laboratory techniques.
Len Jonker, president of Judicial Testing Systems, the distributor for Protzek here, said he is in talks about supplying the device to other law enforcement agencies in Illinois as well.
The tests have been challenged in some state courts but have been upheld as a preliminary step to establish probable cause to make an arrest, according to the National District Attorneys Association.
Still, the tests cannot yet be used as conclusive evidence in court, and still require a blood draw for confirmation, the prosecutors reported.
Dan Linn, executive director of the marijuana advocacy group Illinois NORML, said he welcomes the test for accuracy.
“We advocate for legalizing cannabis, but that does not mean we advocate people driving impaired by cannabis,” he said. “The bigger question is, who is driving impaired, and who just has cannabis in their systems.”
Illinois law has zero tolerance for driving on controlled substances other than marijuana, meaning any amount is enough to convict someone of DUI.
Yet unlike alcohol, which has been shown to cause impairment at a blood alcohol level of 0.08, no numeric levels have been established to show impairment from various drugs, because their effects vary so widely from person to person, depending in part on the user’s tolerance.
That’s why Linn believes it’s better to have trained police officers try to assess from direct observations whether a driver is impaired.
Police and prosecutors agree, and for that reason call for more training of officers as drug recognition experts, or DREs. While the standard field sobriety test — where drivers are asked to walk in a straight line and turn around, stand on one leg and close their eyes and touch their nose — was designed primarily to detect the influence of alcohol, the DRE test uses more subtle signs to try to detect drugs.
Dilated or constricted pupils, incomplete or repetitive speech, tremors in the eyelids or hands, odors, high pulse or body temperature, nervousness or lack of inhibition may all be considered signs of impairment from various drugs.
Processing a DUI arrest is time-consuming, and the new law that set the cannabis intoxication standard on driving under the influence states that police must take a blood sample within two hours. Police say that’s often impractical or impossible, especially in rural areas far from a hospital.
That’s why interest is so high in finding a quick technological fix.
‘If they can prove it … then bring it’
Police are free to try out drug-detecting devices, but to get them authorized for use as evidence, they typically have to be assessed by the Illinois Law Enforcement Training and Standards Board, then be approved as administrative rules changes by the Joint Commission on Administrative Rules, state police Master Sgt. Matthew Boerwinkle said. That process could take months or years.
In addition, to be accepted in court, any new type of scientific evidence in Illinois generally must pass a Frye test, a judicial hearing to establish whether the technique is generally accepted as reliable by the scientific community in that field.
But Ramsell, the DUI attorney, cautions that many types of prior forensics evidence, from shoe prints to bite marks to signs of arson, have been undermined, and any new test deserves rigorous research by scientists, not police.
“If they want to turn citizens into rhesus monkeys, I am not volunteering,” Ramsell said. “But I’m all for science. If they can prove it in court, then bring it.”
He also accused police of wanting to raise more money in court fines. Last year, Carol Stream, which prosecutes many DUI cases itself, reported collecting $261,000 in court fines from DUI cases, plus another $300,000 in towing fees and $363,000 in circuit court fines for a variety of offenses.
While suburban police do not have to fight the amount of violent crime seen in Chicago, Cluever said his officers prioritize aggressive traffic stops to save lives and prevent other crimes, not to raise revenue. Initially, the tests will be done at the police station, but eventually, officers hope to use them on the roadside.
“If you’re driving impaired,” Cluever said, “we’re doing everything we can to keep you off the road.”
