DUI Tests and Saliva Swabs

You’ve gone out to a nice restaurant for a celebratory dinner with friends. As she seats your party, the first question the hostess asks is whether you’d like something to drink while you look over the menu. You order a glass of wine or, perhaps, a beer from the new microbrewery you heard was excellent.

During dinner, you have a second glass with your meal. And, because it’s a special occasion, you order an after-dinner drink to accompany the decadent dessert you and your spouse are sharing on this special evening.

After saying good-bye to your friends, you start the drive home feeling relaxed and content. It’s been a good night and you’re looking forward to the rest of the weekend.

And then you see the flashing red lights in your rearview mirror. As you pull over, you’re annoyed but not worried. You know you were obeying the speed limit and you know you weren’t doing anything illegal.

The police officer approaches your window and asks for your license, registration and insurance card. You notice the officer is leaning in very close to you and his flashlight is very close to your head.

And then the officer asks the inevitable question. “Have you been drinking?”

What you say and do next may impact your liberty in profound ways for months or years to come. So, what should you say and do?

In a recent video at Reason.tv, producer Tracy Oppenheimer spoke with criminal defense attorney Mark Gallagher about the constitutional rights you have when it comes to DUI traffic stops and the relatively new use of saliva swabs by police officers looking for people driving under the influence of marijuana or illegal drugs.

The video runs just seven minutes and I believe it is worth watching. It’s contained within the article, “How to Dodge a DUI Test and the Legality of New Saliva Swabs.” The video can also be found on YouTube.

I’ve worked alongside attorneys my entire career and Gallagher strikes me as reasonable and well-informed. While he is speaking mostly in the context of California law, where he practices, the advice and general recommendations he provides apply in most states.

Here are several important points Gallagher makes during the interview he conducted with Reason:

Concerning new saliva swab tests for marijuana or other drugs:“Toxicologists, the experts who study the effects of alcohol and drugs on our body, will tell us that marijuana in particular is a very difficult drug for them to determine whether or not someone is under the influence or can safely operate a motor vehicle. Even if they have a full lab of blood information, it’s difficult to tell how long it’s been since the user has smoked. It’s difficult to tell how it’s affecting their ability to drive.”

Concerning whether you should refuse tests of any kind prior to arrest: “Absolutely decline the test. Right now, under California law, if you are stopped at a checkpoint or any type of DUI situation, you are not required to give any test before arrest. You can refuse this swab. You can refuse a breathalyzer. You can refuse to participate in field sobriety tests. You can refuse to answer questions. Now, law enforcement doesn’t like this advice, but we do still have a constitution. And under the 4^th, 5^th and 6^thAmendments, you have a right to remain silent, you have a right to a lawyer, and you have a right against unreasonable search and seizure. So you have to be careful about, when you’re in this environment, to not feel coerced. You have to be conscious of where you are and remember your rights.” [Emphasis added]

Can they take your license away if you invoke your rights? “Yes.You can be punished if you do not give a breath, blood, or urine sample post-arrest. So, if you are stopped and arrested under suspicion of DUI, alcohol or drugs, once the arrest takes place you have to choose one of those tests. And if you don’t, you will face automatic penalties, you’ll lose your driver’s license.” [Emphasis added]

What about if you’re under the age of 21? “If you’re under 21 and you refuse the breathalyzer pre-arrest, you will face the penalties at the DMV (loss of driver’s license). You won’t have any problems in court, but you will have those problems at the DMV.”

While I believe Gallagher’s advice is good, I also recognize it’s one thing for a defense attorney to give his opinion on what your rights are and another for you to navigate the difficult choice of invoking those rights at 10:30 pm on the side of a road with a police officer shining a flashlight in your eyes during a traffic stop.

As Gallagher makes clear, if you refuse post-arrest tests you will lose your driver’s license. And, I’ll add, if you refuse roadside tests pre-arrest, you are increasing the chances that you will be arrested. At times, this may be a Hobson’s choice.

That’s why I recommend that all members of the Self-Reliance Institute think about how they will handle questions or demands for sobriety tests from a police officer during a traffic stop or checkpoint before the situation arises. I also recommend speaking with a competent attorney in your state who specializes in DUI cases about how to handle this type of police interaction.

But let me also say this. The best advice I can give you is the most obvious. Don’t drink alcohol – or use any substance that impacts your motor skills – before driving a motor vehicle.

Now I’d like to hear from you. Have you been pulled over and asked to perform a field sobriety test? How did you handle the interaction with the police officer? Have you spoken with an attorney about these types of situations? What advice did you receive?

I’d love to hear about your experience and, as always, I’ll protect your anonymity.

You can email me your story at [email protected]

Be safe and secure,

Rob Douglas