Proposed Driving-Drugs Law for consent requirement that a California driver gives consent to new saliva swab testing for drugs

With all the drugs used in our society, California DUI cops wish they could to use reliable gadgets which identify California drivers having drugs in their systems and potentially under the influence of meth, marijuana, cocaine and other drugs, California DUI lawyers are told.

A major problem is reliability. California DUI cops use hand-held breath test gadgets used for Preliminary Alcohol Screening (PAS) Tests. Some work sometimes; others test positive for white bread alone, California DUI attorneys know. Others are plain unreliable.

Testing for presence of marijuana is a concern in California since there is no evidence that ingestion of marijuana impairs one’s ability to drive, according to the federal government. Cannabis driving is ok as long as one is driving fine in California (not DUI). It would be unfair to medial marijuana users, too.

We know that Zero Tolerance for all drugs is a stupid idea. The previous proposal was tossed out.

There are a lot of DUI screening gadgets out there, some more reliable than others. With California DUI screening breath tests, there are a number of possible problems, sources of error and operator/administrator flaws.

What about testing for energy drinks? Where does this end, driving under the influence of coffee?

Proposed California Assembly Bill 1356 would change California DUI law to implement an additional, new implied consent requirement that any person driving a motor vehicle has given their consent to chemical testing of his or her blood or oral fluids.

Under this newly proposed California DUI measure, law enforcement officers would be authorized to use a new gadget that purportedly can detect drugs in someone’s system using a swab of saliva.

An untested DDS 2 Mobile Test System was developed by Alere.


This untested system is reported to have a 90 percent accuracy rate, according to the company. This rate has not been independently confirmed and little supporting data is provided to corroborate. No scientific study supports the claimed accuracy of this system. Profits drive the idea. The idea is being pushed by a former California DUI cop.

The gadget allegedly screens the saliva sample and determines in a matter of minutes whether the driver has taken amphetamines, cocaine, marijuana, methamphetamines or opiates. Of course the company is going to say it works to sell it. That’s the problem with alot of these gadgets.

California Assemblyman Tom Lackey, R-Palmdale, a former California highway patrol officer, authored the measure. Of course a former California DUI cop is behind this. Why have lawyers and scientists get involved when you have unbiased cops. The former DUI cop told Government Technology he claims the legislation gives officers the ability to compile more data during a situation, in order to make more informed decisions on whether or not to arrest someone for driving erratically.

“The facts have proven that we’ve become effective in identifying and removing the drivers impaired by alcohol, but in the other issues that are impairing people, we have a ways to go,” Lackey said. “This is a tool that would allow the officers to have the same kind of ability to make objective calls, and be more accurate in their depiction of other intoxicants outside of alcohol.”

AB 1356 has serious doubters, however. Lackey knows California DUI defense attorneys have voiced concerns over how the test results from the device may be viewed in terms of evidentiary value and the final determination of someone’s blood level of intoxication.

Lackey, the former California DUI cop, claims those issues “premature,” and speculates that he believes the science behind the technology is strong. But he also stressed that the gadget is only going to be used as a screening tool, so DUI officers can make a more reasonable assessment of a person they’ve stopped.

“The technology is not setting new limits for drug intoxication,” he said.

California National Organization for the Reform of Marijuana Laws (Cal NORML), stands neutral on the bill. But Dale Gieringer, director of the nonprofit group, pointed out that while oral swabs are “roughly as sensitive” as blood tests for detecting use, there’s a lack of scientific data on the accuracy of the gadgets’ tests being proposed for use by cops in California.

Gieringer told Government Technology that oral swab testing doesn’t measure actual impairment, but rather past use by a person. That could lead to motorists who are medical marijuana users coming up positive without actually being impaired, and that’s a big problem.

Lackey hosted a demonstration of the DDS 2 device on April 20. A medical marijuana patient volunteered for the test and came up positive, at which point, Gieringer said Lackey noted the person would have likely been arrested for DUI had he or she previously been arrested for bad driving and taken a field sobriety test.

“We do not object to oral swab testing being used in such cases, so long as it’s understood they don’t constitute legal proof of impairment, just evidence of recent use,” Gieringer said. “We would strongly object if California police started administering oral swab tests at random road blocks or for minor non-driving related offenses like expired plates or a busted tail light.”

If AB 1356 becomes law, one of the roadblocks behind it being successful at helping curb drug-impaired driving could be money. That’s always a concern and that alone should defeat this hope-in-the-sky. There’s no financing mechanism in the bill, meaning the California Highway Patrol and local agencies would have to purchase the gadgets without additional funding. Pricing information is conveniently unavailable on the Alere website.

Lackey purportedly wasn’t overly concerned with the issue, however. It’s not coming out of his money. He said he was focused on getting the bill “accepted and authorized.” He added that federal grants and partnering with other agencies interested in traffic safety could be potential ways departments could come up with the money needed to get the technology in the hands of officers.

AB 1356 is currently in the Assembly Public Safety Committee. On May 5, the measure was considered by just three Assembly members, who voted in favor of it, 2-1. Since there wasn’t a quorum however, due to four members of the committee not voting, the bill failed, but was granted reconsideration. As of press time May 8, no hearing had been set for the re-vote. Hopefully folks will come to their senses.


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