Meeting addresses issue of medical marijuana and impaired driving


Photo by Frank Weir

By Frank Weir
Legal News

Just as Michigan’s Department of Licensing and Regulatory Affairs (LARA) gears up for new businesses to provide medical marijuana under changes to Michigan law, techniques to apprehend drivers impaired by drug use, including by marijuana, continue to be refined.

Washtenaw County Deputy Sheriff Douglas McMullen spoke to a March 9 WCBA section meeting, “Medical Marijuana and Impaired Driving: What You Need to Know,” hosted by Medical Marijuana Section co-chairs John Reiser and Ben Joffe. According to McMullen, a corporal with Ypsilanti Township Traffic Services, a roadside drug test pilot program began last fall in Berrien, Delta, Kent, St. Clair and Washtenaw counties.

Only a certified DRE officer can conduct a DRE investigation, and patrol officers can request a DRE officer if drug impairment in a driver is suspected. The program and certification grew out of the perception by law enforcement that specialized training was needed for officers to identify drivers who are impaired by the use of drugs.

Unlike the Preliminary Breath Test (PBT) for alcohol, there currently is no roadside chemically based test for the presence of drugs that have impaired a driver’s ability.  But efforts are well underway to develop roadside tests that will indicate the likely presence of drugs in a driver who appears to be impaired.

McMullen, one of 10 Drug Recognition Expert (DRE) officers in Washtenaw County, explained an essential part of the process is administering the Standardized Field Sobriety Tests (SFST) that have been in place for some time to evaluate possible driver impairment due to alcohol.

“I am looking for impairment,” he said. “Is it possible to take Valium and Vicodin pursuant to a prescription and drive OK? Of course. But impairment is the issue. If I think a driver is impaired, and from those substances, then there is a problem.” 

Growing out of efforts by the Los Angeles Police Department, there is a nationwide Drug Evaluation and Classification Program that allows trained officers to determine if a driver is likely under the influence of drugs to the point where he or she is impaired.  

The training is extensive and no officer is certified until he or she correctly identifies 12 subjects who are impaired due to drug use.

The training prepares an officer to: Establish the subject is impaired; rule out medical impairment; determine the category or categories of drugs involved including seven drug categories including central nervous system depressants; central nervous system stimulants; hallucinogens; dissociative anesthetics; narcotic analgesics; inhalants; and cannabis. 

“The DRE program is designed to be systematic and standardized,” McMullen said. “It is the same here as in California. An officer is able to apply the program in any state and come to the same conclusion. It is very stringent. You stick to the procedure and the program.” 

The core of the DRE examination comprises 12 evaluative steps:  Breath alcohol test; interview of arresting officer; preliminary examination including taking a pulse of the subject; eye examinations looking for such things as HGN, horizontal Gaze Nystagmus, involuntary eye movements, and “lack of convergence” or eye tracking problems; divided attentions tests including the modified Romberg balance test, the walk and turn, the one-legged stand and the finger-to-nose test; vital signs including a second pulse taking; dark room examinations involving balance tests, pupillary responses and more; muscle tone tests; checking for injection sites and a third pulse taking; statements under interrogation of the driver; opinion of the DRE officer as to the drug influence and category of drug involved causing the impairment based on the totality of the evaluation;  and toxicology reports, when the DRE obtains a urine and/or blood specimen from the suspect, to be analyzed by a lab.

McMullen showed a roadside chemical test pilot project involving mouth swabs that are inserted into a cartridge and then into a test device. It tests for five drug categories and indicates the presence of a substance from one of the categories above a threshold level, but not a quantitative measure of a drug.

He noted an arrest should be based on more than on a saliva response but the law allows an arrest solely on the device reading.

He added the law states a driver can be compelled to provide a swab sample when requested, although failure to comply results only in a $100 fine and no loss of driving privileges.

McMullen said officers ask for a second swab to be sent to a lab but drivers may refuse to provide that sample without punishment.