Medical marijuana use poses new challenges for local police officers



by Frank Weir
Legal News

In an effort to combat the dangers of drugged driving, techniques to apprehend motorists impaired by drug use continue to be refined under a pilot program established by the Michigan State Police.

According to Washtenaw County Deputy Douglas McMullen, who spoke at a recent Washtenaw County Bar Association meeting hosted by Medical Marijuana Section Co-chairs John Reiser and Ben Joffe, a roadside drug test pilot program was unveiled last fall in Berrien, Delta, Kent, St. Clair, and Washtenaw counties.

The pilot program establishes policies for the administration of roadside drug testing to determine whether an individual is operating a vehicle while under the influence of a controlled substance in violation of Michigan law.

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

Unlike the Preliminary Breath Test (PBT) for alcohol, there currently is no roadside chemically based test of drivers for the presence of drugs. But McMullen said that efforts are 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 okay? 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, a nationwide Drug Evaluation and Classification Program 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 that the subject is impaired; rule out medical impairment; determine the category or categories of drugs involved 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.” 

At the March 9 meeting, McMullen demonstrated the use of a pilot project. It featured a roadside chemical test involving mouth swabs that are inserted into a cartridge and then into an examination 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.

McMullen noted that an arrest should be based on more than that saliva response, but the law allows an arrest solely on the device reading. He added that 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 fear of punishment.

According to state officials, over the last few years Michigan has seen a steady increase in fatal crashes involving drivers impaired by drugs. In 2016, there were 236 drug-involved traffic fatalities, which is an increase of 32 percent from the 179 recorded in 2015.

“Motorists under the influence of drugs pose a risk to themselves and others on the road,” said Col. Kriste Kibbey Etue, director of the State Police. “With drugged driving on the rise, law enforcement officers need an effective tool to assist in making these determinations during a traffic stop.”

The pilot counties, according to Etue, were chosen based on several criteria, including the number of impaired driving crashes, impaired drivers arrested, and the number of trained DREs in the county.