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Saliva testing, Is it legal, Saw this on news this morning,

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Saliva testing, Is it legal, Saw this on news this morning, Questions to this, is this collecting a DNA sample from you. Last I heard you have to have a court order to have this done. Second question is, we sign driver’s licenses agreement to concede to a breath or blood test, we did not sign anything conceding to saliva testing, and so if you do not give a saliva test, do you fall under the breath test rule? 90 days suspension. What about control drugs like doctor care? You do not have them on you, but you test positive, you tell officer he still rights you a DUI. Sounds like a catch 22.
Submitted: 1 year ago.
Category: Criminal Law
Expert:  MyraB replied 1 year ago.

Hello and thank you for your question.

Under the Fourth Amendment, the Constitution prohibits unreasonable searches and seizures. What is reasonable is still being defined. Just this year, the Supreme Court determined that forced blood testing, where there was no warrant and no consent, was unconstitutional. See Missouri v. McNeely http://www.supremecourt.gov/opinions/12pdf/11-1425_cb8e.pdf

The breathalyzer rules that govern breath tests in DUI cases are based on implied consent. Because having a driver's license and driving a vehicle is a privilege and not a right, the legislature can enact laws that provide penalties for the refusal to take a breathalyzer test. This is based on statute and not on anything a person signs when getting a license. It is a continuing condition of a license and the conditions can change according to the law. However, police cannot force you to take a breath test against your will, and thankfully now they can't force you to take a blood test, either. Even where there is a refusal to take a breath test, persons can usually challenge the penalty for a refusal if there was no probable cause for a DUI arrest and demand for the breath test.

Although I have not seen or heard the article you mention, from your description it appears that the suggestion has been made that would involve implied consent for a saliva test for suspected DUI drugs. At this time, most jurisdictions employ drug recognition experts who are on call and can evaluate someone who is suspected of DUI drugs. It is possible that someone may be advocating for a change in the law, but as you noted there are serious privacy issues concerned that would need to be addressed, such as limiting the use of the samples to the case and narrow purpose of testing for specific substances (so there would be no DNA collection) and there would need to be significant justification for such a rule. There would need to be a specific rule that applied to saliva testing and it would not fall under any existing breath test rule. And even if such a rule was enacted, as with the breath test, a suspect could refuse to provide the saliva and may be sanctioned. But, as the Supreme Court has ruled there can be no forced blood testing in those circumstances, and that would likely be true of saliva also.

As far as prescription drugs, as with a breath test result now, you would likely be able to challenge any penalty for refusal of any saliva test which may be based on testing positive for prescription drugs as well as any lack of probable cause argument. And you would also still have a defense to any criminal charge based on prescription medication, and other defenses.

Please feel free to ask any follow up questions.

Customer: replied 1 year ago.

 


Arkansas law enforcement may now test a person’s saliva to determine if they are under the influence of alcohol or drugs. The law was passed in March and went into effect July 17.


Lieutenant Allan Marx with the Sebastian County Sheriff’s Department was a driving force behind the changing law. He said before the Arkansas DWI law changed, officers could test a person’s blood, urine and breath.


Marx said while working a case last year, he learned about saliva testing and recognized a need for it in Arkansas.


“If there’s ever a new way, a new tool that we can use to help not only law enforcement but help the public and the safety of the people out there, it needs to be used,” said Marx. “I believe this product is going to save lives.”


Marx said a driver who fails a field sobriety test may be subjected to a saliva test. According to Marx, the test – which is 94-99% accurate – will detect intoxicants like alcohol, amphetamine, benzodiazepines, buprenorphine, cocaine, cotinine, EDDP, ketamine, marijuana, methadone, methamphetamine, opiates, oxycodone, phencyclidine and propoxyphene.


The results of the saliva tests are available within ten minutes and will determine whether an arrest should be made. A positive saliva test will serve as probable cause for an arrest, and blood or urine will be collected at the jail.


Due to the infancy of the new law, Marx said the admissibility of the tests have not yet been tried in court. However, he said the tests have been used for years in the hiring process.


“Obviously it’s a brand new law, and that will come into effect,” said Marx. “But there should not be any opposition whatsoever.”


The new law was supported by the Arkansas Prosecuting Attorneys Association, Sheriffs’ Association and Association of Chiefs of Police before passing through the state House and Senate with little resistance. Chief Percy Wilburn, President of the Association of Chiefs of Police, said the saliva test will be a beneficial tool for law enforcement officers.


“We feel like it will help reduce the amount of drivers that are on the highway that are under the influence of alcohol and other controlled substances,” said Wilburn.


The price for a single test starts at $11.95. Marx said law enforcement agencies may purchase the test kits with taxpayer money, funding from the Drug Task Force, money seized to fight the war on drugs or grants.


Marx said the saliva test kits will save thousands of dollars on training and overtime costs because any officer who completes the online training may administer a saliva test. He said the saliva tests are also more cost-effective than blood tests which can cost about $150 each.


The sheriff’s departments in both Sebastian and Scott counties will be putting the saliva test kits in patrol cards in the near future, according to Marx, and several other agencies are expected to follow.


Marx said he believes in the saliva test kits so much, he has become a distributor of the product. His website, gotchadwi.com, provides further details about the product and the history of the law change.


“I have basically spent my whole adult life fighting the war on drugs,” said Marx who has been a deputy with the Sebastian County Sheriff’s Department for 19 years and served as a task officer with the Drug Enforcement Administration for 10 years

Expert:  MyraB replied 1 year ago.
Thank you for the article. I have also reviewed the Bill which, in fact, amended the Arkansas laws, including the implied consent laws to cover saliva testing. The full text of the adopted Bill can be found here http://www.arkleg.state.ar.us/assembly/2013/2013R/Acts/Act361.pdf

Under the revised implied consent law a first offense refusal results in a 180 day license suspension.

The information in my original answer remains pertinent as saliva was incorporated into each aspect of the law governing driving while intoxicated including the implied consent law as another manner of testing. The inclusion of saliva testing would be legal as long as it was circumscribed to the situations where breath and urine testing have been deemed legal. It would not be legal under the statute to use saliva testing to collect DNA without a warrant as this is not allowed under the amendments.

I remain skeptical, however, of the efficacy of a saliva test in the field or even at the station and anticipate there will be legal challenges along the lines you mentioned in your question regarding the accuracy of the tests especially of quantitative analysis and concentration and whether the test results would be sufficiently scientifically based and reliable for admission in court. I note the law does require some regulation regarding training for testing and maintaining equipment, and I anticipate there will be challenges in this area as well.

I have always maintained that as society, including courts and prosecutors, look more frequently to science for evidence, it is correspondingly ever more important for justice to be vigilant and require that scientific instruments and tests, which in effect testify, are competent witnesses.
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Category: Criminal Law
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Experience: I have over 20 years experience in criminal law and civil litigation from pre-trial practice to appeal.
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