Michigan’s Roadside Drug Testing Law

NHTSA ROADSIDE SURVEY-RELEASED FEBRUARY 6, 2015

•  Alcohol use has declined dramatically. Only 1.5% of weekend nighttime drivers had BACs at or above .08.

•  However, 22.5% tested positive for drugs, an increase from 16.3% in 2007. 12.6% were positive for marijuana, compared to 8.6% in 2007.

February 2007

Michigan – 2014 •  876 Crash Fatalities

•  386 Alcohol and/or drug related fatalities (44%)

February 2007

Michigan – 2015 •  963 Crash Fatalities

•  482 Alcohol and/or drug related fatalities (50%)

MSP Laboratory- 3/2013 - 4/2014

Drugs % of Cases

•  THC 56 •  Alprazolam 38 •  Hydrocodone 29 •  Morphine 20 •  Nordiazepam 16 •  Diazepam 14 •  Codeine 13 •  Soma 13 •  Amphetamine 12 •  Clonazepam 9 •  Oxycodone 8 •  Methadone 8 •  Tramadol 7 •  Cocaine 3 •  Fentanyl 2

CHALLENGES: PERCEPTION OF RISK

•  Some people think that: •  Drugged driving is not a serious problem.

•  Drug use does not adversely affect driving and may improve it.

•  There are no laws prohibiting drugged driving (i.e., it is not illegal).

•  The likelihood of detection and apprehension for drugged driving is low.

DRIVER WHO KILLED 5 BICYCLISTS HAD TAKEN PAIN PILLS

•  A man accused of killing five people when he plowed his speeding pickup truck into a group of Michigan bicyclists had taken pain pills and muscle relaxers less than two hours earlier, according to police reports.

•  Charles Pickett Jr., 50, was initially charged with second-degree murder in the June 7 crash in Kalamazoo County. Charges of driving while intoxicated causing death were added later.

•  His girlfriend told investigators he took 16 to 20 muscle relaxers about an hour and a half before the crash, then took 10 painkillers. According to the report, Pickett told her: "I've taken this much before," and: "I'd be better off dead."

Teen pleads guilty in tow truck driver’s death

•  Defendant pled guilty in the death in the death of Preferred Towing’s Jason Schultz.

•  “By having THC in your body by the operation of that vehicle did cause the death of Jason Schultz, how do you plead?” Judge asked. “Guilty,” defendant said.

•  Defendant was southbound when he swerved to the right onto the shoulder to avoid the tow truck, striking Schultz, the tow cable and stuck vehicle.

•  Schultz is survived by his widow and three children younger than 10.

Court Upholds Murder Conviction In Drugged Driving Case

•  Back in 2013, Lisa Bergman was driving a Ford F-350 pickup truck in St. Clair County when she crossed the center line and crashed into a smaller pickup, killing 19-year-old Russell Ward and 20-year-old Koby Raymo.

•  St. Clair County Sheriff’s Deputy Nicholas Singleton said in his testimony that Bergman “was one of the most impaired people I have ever seen operating a vehicle.”

•  Bergman’s blood-alcohol level was below the legal limit, but she had also used prescription drugs OxyContin and Soma.

SWIFT FAMILY TRAGEDY •  The suspect in a deadly car crash has been found guilty on six

counts after a two day trial. •  The defendant was found guilty on two counts of driving with a

suspended or revoked license causing death, two counts of reckless driving causing death, and two counts of operating with the presence of THC in his system causing death.

•  The defendant struck a vehicle driven by 73–year–old Thomas Swift of Escanaba, who died at the scene. His wife, 73–year–old Barbara Swift, died several days later from injuries she sustained.

INTRODUCTION OF LEGISLATION •  After the crash, Brian Swift, the couple's son, said he contacted State

Senator Thomas Casperson to try to make a better way to catch drugged drivers. Casperson introduced legislation.

•  Swift testified the legislation is aimed at “stopping people who get behind the wheel of a vehicle and choose to put others lives at risk.”

•  “We want to make sure other families do not have to live with the nightmare we live with,” he testified at a House Judiciary Committee meeting early this year.

•  State Senator Rick Jones, who chairs the Senate Judiciary Committee, touted the hand-held device to check for drugs — much like a breathalyzer test for alcohol — as another tool for officers.

“Barbara J. and Thomas J. Swift” Law •  Public Act 243, effective, September 22, 2016, the law authorizes the

Michigan Department of State Police (MSP), to establish a one-year pilot program in five counties for roadside drug testing.

•  Requires the MSP to develop a written policy for the implementation of the pilot program and the administration of roadside drug testing.

•  Allows the MSP to promulgate rules to implement the pilot program. •  Requires the MSP to report on the pilot program to certain

committees of the Legislature within 90 days after the pilot program concludes.

•  Allows the MSP, subject to appropriation, to establish additional pilot programs in other counties for up to one year.

PUBLIC ACT 242, EFFECTIVE 9/22/16 •  Effective, September 22, 2016, the law authorizes a peace officer who is

certified as a drug recognition expert in a county participating in the pilot program authorized under Public Act 243 to require a person to submit to a preliminary oral fluid analysis under certain conditions.

•  Authorizes an officer to arrest a person based on the results of a preliminary oral fluid analysis; and to make those results admissible in a criminal prosecution for limited purposes and/or administrative hearing.

•  Requires an officer to use the results of an oral fluid analysis to determine whether to order a commercial motor vehicle (CMV) driver out of service, and requires an officer to order out of service a CMV driver who refuses to submit to a preliminary oral fluid analysis.

•  Provides that a person who refuses to submit to a preliminary oral analysis is responsible for a civil infraction.

•  Committee comprised of subject matter experts to assist in making the pilot program successful. Members are from the following areas: •  Prosecuting Attorneys Association of Michigan •  Traffic Services Section •  Alcohol Enforcement Unit •  Impaired Driving Unit •  DRE Coordinator from OHSP •  Forensic Science Division •  Legislative Liaison Unit •  Legal Resources Section

COMMITTEE AND MEMBERS

COUNTIES SELECTED •  The counties for the Oral Fluid Roadside Analysis will be

selected on the following criteria: •  Number of serious injury and fatal impaired driving

crashes •  Number of impaired driving arrests •  Number of DREs in the county •  Number of DRE prosecutors in the county and their

knowledge of the program •  Geographic diversity around the State of Michigan

FIVE COUNTIES WILL BE SELECTED

CONTACT WITH LAW ENFORCEMENT AGENCIES AND DRES

•  All law enforcement agencies will be represented in this pilot program: State, Local, Township and County Law Enforcement

•  Several Law Enforcement agencies will be participating •  Only DREs will be conducting the Oral Fluid Roadside

Analysis Pilot program •  Contact will be made with both the DREs and the

administrators of the law enforcement agencies

•  The Pilot Program Committee researched several vendors of Oral Fluid Roadside Analysis Testing instruments.

•  Manufacturers of the instruments were given an opportunity to give a presentation and demonstration of their product to the committee members

•  Seven different oral fluid testing manufacturers gave presentations and were evaluated by committee members

SELECTION OF ORAL FLUID TEST INSTRUMENT

•  All products had positive and negative aspects •  Decision will be difficult due to the amount of very

capable products •  The Committee members came up with specifications

that will meet the needs of the pilot program

SELECTION OF ORAL FLUID TEST INSTRUMENT

•  Compact and portable •  Easy to use •  Results within five minutes •  Easy to read positive or negative results •  Can store up to 10,000 tests and comes with a

printer

TEST INSTRUMENT

•  At a minimum, the test instrument needs to tests for the following:

•  Amphetamines •  Benzodiazepines •  Cannabis (THC) •  Cocaine Metabolite •  Methamphetamine •  Opiates

TEST INSTRUMENT

•  MSP is responsible for developing policies and procedures for the Oral Fluid Roadside Analysis Pilot program.

•  May promulgate Administrative Rules for the pilot program if necessary.

•  Process could take several weeks to go through the approval process to take affect

POLICIES AND PROCEDURES

•  When the DRE completes the Oral Fluid Roadside Analysis, two saliva samples will be taken. One for the test instrument, the other for an independent lab for confirmation testing.

•  This testing will rule out any false positive or false negative results.

•  This will ensure and demonstrate the reliability and accuracy of the test instrument.

INDEPENDENT LAB

•  The committee came up with a timeline of events to ensure the pilot program stays on track and items are completed in a timely manner.

•  Timeline is SMART (Specific, Measurable, Attainable, Realistic and Timely)

TIMELINE OF EVENTS

•  After the one year Oral Fluid Roadside Analysis Pilot program is completed, the Committee has 90 days to report findings:

•  How the participating counties were selected •  The different law enforcement agencies that

participated in the Pilot program •  The number and type of convictions resulting from the

Oral Fluid Roadside Analysis Pilot program

REPORTING ON THE ORAL FLUID ROADSIDE ANALYSIS PILOT

•  On-site screening •  Easy rapid collection •  Immediate result •  Non-invasive, observed •  Investigative tool •  Probable cause tool •  Forensic laboratory confirmation

WHY ORAL FLUID?

•  Michigan is making great strides toward the Oral Fluid Roadside Analysis Pilot Program, but it still has a long way to go.

•  With the ever increasing impaired drivers and States legalizing marijuana, it’s a great time for the Pilot program

•  The Michigan State Police and members of the Committee are very proud of the accomplishments thus far with the Oral Fluid Pilot program.

•  We look forward to assisting other Law Enforcement agencies with impaired driving initiatives.

CONCLUSION

•  “We have worked hard over the past year to turn the horror of losing our mom and dad into saving others.”

•  “Our pain never goes away, but we know my parents would want to help others and we think it is worth the fight.”

QUOTES FROM BRIAN SWIFT