State Leadership in Roadside Drug Detection

State Leadership in Roadside Drug Detection

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The limited amount of data on drug-impaired driving is directly tied to existing protocols in impaired driving investigations which often end with the administration of evidential breath tests. For years, my partner has stated that DUI remains the only crime where an investigation ends after minimal evidence is obtained due to the standard operating procedure of pursuing per se charges if the BAC is at or above the illegal limit (.08 in all states except Utah). Unfortunately, this practice can lead to unintended consequences. Historically, drug use among the impaired driving population has been underreported which has implications for the way these offenders are handled in the criminal justice system. For example, the failure to identify drivers with drug issues means that these individuals may not be adequately supervised, held accountable for continued substance use, or receive appropriate treatment referrals which minimizes the overall likelihood of long-term behavior change and places them at greater risk for recidivism.

Data from multiple states and sources has begun to paint an increasingly alarming picture regarding the prevalence of polysubstance-impaired driving. For example, according to FARS data, in 2016, 50.5% of fatally injured drug-positive drivers (with known drug test results) were positive for two or more drugs and 40.7% were found to have alcohol in their system (FARS as cited in Hedlund, 2018). Recent data from Washington State revealed that polydrug impairment was the most common type of impairment found among drivers involved in fatal crashes between 2008 and 2016; 44% of these individuals tested positive for two or more substances (Grondel et al., 2018). In Colorado, the Department of Public Safety reported a significant number of polydrug cases in 2017 with the majority (40.6%) involving a combination of alcohol and cannabis (Bui & Reed, 2019). Lastly, data from the Drug Recognition Expert (DRE) Section of the International Association of Chiefs of Police (IACP) revealed that in 2018, approximately 42% of all DRE enforcement evaluations (13,230 cases) included an opinion of poly-drug impairment. Of all the evaluations with available toxicology results, 36% were positive for multiple drugs (Hayes/IACP, 2019). These are merely a handful of examples that support the need for expanded testing in DUI cases.

Fortunately, technology exists to facilitate the identification of drivers who operate under the influence of drugs. Historically, states have relied on blood and urine testing in DUI cases. At present, most states rely on blood testing as this is deemed to be the ‘gold standard’ however, it is common for there to be significant delays in collecting blood samples which leads to a loss of chemical evidence through drug metabolization. Moreover, due to the invasive nature of blood draws and the costs associated with blood analysis, many jurisdictions do not pursue drug testing in cases where evidential breath test results exceed the illegal limit.

The availability of a cost-effective testing method that allows law enforcement to efficiently screen for drugs provides an opportunity to collect more data on the magnitude and characteristics of the drug and polysubstance-impaired driving problem. Currently, multiple jurisdictions have begun to explore the viability of oral fluid testing and its use in the field is increasing. Over the past decade, multiple pilots have been completed throughout the United States and many other nations have implemented full oral fluid roadside testing programs. Countries such as Australia and Spain have had active programs for years and more recently, Canada passed a law following the legalization of recreational cannabis that allows law enforcement to collect oral fluid samples from motorists to screen for drug use. The Canadian program is launching as law enforcement agencies throughout the country have begun to purchase instrumentation and train their officers to use the technology. Jurisdictions in the United States are encouraged to remain abreast of developments north of the border and learn from the Canadian experience.

Here in the United States, two states are currently leaders in the use of oral fluid technology: Michigan and Alabama. Michigan is commencing the first statewide pilot program and Alabama has transitioned from a successful pilot to a full and permanent oral fluid toxicology program.

Michigan became the first state to implement an oral fluid pilot as a result of state legislation (Public Act 243 now serves as a model that other states should consider replicating.

The Michigan State Police (MSP) was given the authority to develop written policy and promulgate administrative rules as necessary for the implementation of the state’s oral fluid program. The initial pilot was conducted in five counties (Berrien, Delta, Kent, St. Clair, and Washtenaw) and utilized DREs to administer the oral fluid test as part of their DUI investigation. Unlike previous pilots, the Michigan program is not voluntary as drivers are not given the opportunity to opt out of providing a sample. Legislators gave the law “teeth” by making refusal to submit to an oral fluid test a civil infraction.

In December 2018, the Michigan Legislature agreed to support the ongoing funding of the oral fluid pilot and the expansion of the program to additional interested, qualified counties around the state. An appropriation of $626,000 for the extension of the Oral Fluid Roadside Analysis Pilot Program was included in the supplemental funding bill that became Public Act 618.

The MSP continues to oversee the pilot as law enforcement officers from around the state were trained to administer the oral fluid test this fall. More than 50 agencies and over 100 DREs are involved in the largescale pilot and the hope is that the larger statewide program will produce a significant amount of data over the course of 2019-2020. If the program again produces promising results, we hope the legislature and law enforcement agencies will transition from the pilot to a permanent program and the use of oral fluid onsite screening will become a standard component of DUI investigations in Michigan.

Meanwhile, a southern state has set a new benchmark for the expansion of drug testing in impaired driving investigations. Earlier this year, Alabama became the first state to establish a permanent oral fluid program utilizing devices in both a screening and evidentiary capacity. Alabama’s Oral Fluid Drug Testing Program was established under the leadership of Dr. Curt Harper at the Department of Forensic Sciences (ADFS). After piloting several devices including various oral fluid screeners as well as Quantisal evidential testing, Alabama transitioned to a full program. The protocol utilized in Alabama is similar to other jurisdictions. As part of the initial DUI investigation, officers administer an onsite test once there is suspicion that an individual may be impaired by drugs. This test indicates whether that person is positive or negative for the presence of the most common drugs and the results can be used to help establish probable cause and justify an arrest in combination. Once an arrest is made, an evidential toxicology sample must be collected for forensic laboratory testing. This is where Alabama’s approach differs from other jurisdictions. In the majority of states, officers collect blood samples in DUID cases to confirm the presence of an impairing substance(s) in the body. With the establishment of Alabama’s new program, officers can now collect an evidential oral fluid sample to submit for confirmation testing at the state lab. The collection procedure is similar to that of oral fluid screening with the only difference being that officers have to follow a specific protocol using an appropriate collection tube and maintain a documented chain of custody. Upon collection, the Quantisal sample is sent to the lab and analyzed. Currently, ADFS analyzes evidential oral fluid samples for in excess of 20 drugs that are commonly found in impaired driving cases. More information about Alabama’s program and evidential oral fluid testing can be found here. For his leadership in advancing the use of oral fluid testing in DUI cases and for establishing Alabama’s landmark program, Dr. Curt Harper will be recognized for his contributions to the fields of traffic safety and criminal justice next month. Be sure to follow social media and applaud Dr. Harper for his important and ongoing work!

Law & Order & Wellness?

For years, has partnered with the National Center for DWI Courts (NCDC) to promote the expansion of treatment courts. Research has consistently shown that these courts, which serve the high-risk/high needs impaired driver population, are effective in reducing recidivism while accruing significant cost-savings. Our Judicial Advisory Board is comprised of many of the nation’s leading DWI court judges and what sets these members of the judiciary apart is their ability to consistently identify opportunities to enhance their respective courts. Within these courts, the judges and their team members integrate new components that are aimed at achieving better outcomes among their clients. Treatment courts routinely serve as testing grounds for innovative practices which are subsequently adopted more broadly within the field.

Judge Mary Jane KniselyJudge Shaun Floerke, and Judge Robert Anchondo each serve on our Board and oversee DWI Academy Courts (these are courts that are designated as model programs due to their exemplary practice and are utilized in foundational trainings). While each court maintains fidelity to the 10 Guiding Principles, the judges have focused on adding new programming, technology, and approaches to address identified problems, improve efficiency, and/or target participant needs. The following is an overview of some of these practices:

The Sobriety, Treatment, Education, Excellence and Rehabilitation (STEER) Court is Judge Mary Jane Knisely’s Academy Court located in Billings, Montana. As many of the court’s participants reside in rural jurisdictions, the court has had to overcome barriers related to lack of access to transportation, community services, and treatment options. In September, Judge Knisely and I delivered training for the Louisiana Association of Drug and Specialty Courts (LADSC) and I had the opportunity to learn more about the progressive programs that she has implemented as either core components or adjunct interventions for her treatment courts. Judge Knisely’s court has opted to utilize technology to facilitate case management including a web-based tracking system, video teleconferencing/polycom appearances for court hearings, and tablet/smart phone applications to simplify monitoring and treatment. In rural states, the reliance on technology in the courtroom ensures that clients do not always have to travel lengthy distances and that each case is efficiently tracked to prevent gaps in accountability.

Even though rural jurisdictions do not always have a diverse range of treatment options available, the STEER court ensures that participants have access of both gender specific and culturally appropriate interventions which have shown to improve outcomes over generic programming. The court provides access to traditional ancillary services such as sober housing, vocational training, and parenting classes but has recently added yoga and art therapy. These classes are designed to provide a safe and supportive environment for both men and women (the programming is gender specific) to focus on their recovery and healing from past trauma that is directly tied to substance abuse. These activities are also designed to provide court participants with a creative outlet to explore various aspects of their recovery and a pro-social way to occupy leisure time and build relationships. Furthermore, engagement in yoga and art therapy was conceptualized as an opportunity to build self-esteem and relieve stress in a healthy manner. A more recent edition to both the STEER Court and Judge Knisely’s veteran’s treatment court is equine therapy. Post-traumatic stress disorder (PTSD) is extremely common among justice-involved veterans and it is also one of the most commonly identified mental health disorders among impaired drivers. The equine program requires participants to work with and train horses to cope with and manage PTSD symptoms. While a newer program, there is research to support equine therapy among veteran and prison populations. In fact, several correctional facilities throughout the country have horse training programs for inmates.

The South St. Louis DWI Court operates under the leadership of Judge Shaun Floerke. Long-time followers of my email are familiar with the work done in Duluth as Judge Floerke has been involved in several important research studies including a Screening, Brief Intervention, and Referral to Treatment (SBIRT) pilot. His probation department was also involved in our CARS implementation pilots in 2016 and his court has been nationally recognized for its success. The South St. Louis DWI Court is one of the few specialty courts that accepts DWI offenders at the pre-trial stage, ensuring that high-risk individuals are subject to interventions as early in the criminal justice process as possible (Judge Floerke’s court was one of several sites selected as case studies in the upcoming pretrial services technical report). Always one to push boundaries, Judge Floerke has been on the forefront of treatment courts embracing wellness as a core component in recovery.

Judge Floerke’s court was one of the first to incorporate yoga therapy to assist in addiction recovery. Participating in yoga requires individuals to be mindful and present and this can be an important skill for those who have difficulty coping with stressful situations. Through yoga classes, court participants develop skills that help them deal with daily functioning and stressors that trigger feelings of anxiety and the desire to use substances. In addition to yoga, court participants learn meditation, breath work, and relaxation techniques. The yoga classes are segregated by gender to create a safe environment and members of the court team, including Judge Floerke, often participate alongside their clients. Judge Floerke stresses the importance of compassion in working with clients who have substance use disorders and a history of trauma.

The El Paso DWI Court is overseen by Judge Robert Anchondo and was the first DWI Court established in the state of Texas. Like his colleagues, Judge Anchondo is constantly identifying ways to strengthen his court structure and integrate new services to improve client outcomes. In addition to establishing multiple partnerships with community agencies and academic institutions, Judge Anchondo has also been instrumental in enhancing the continuum of services available to impaired drivers within his county, including those offenders who do not qualify for his treatment court. Recently, Judge Anchondo led an effort to expand pretrial services with a focus on making more interventions available to impaired driving defendants. He brought in national experts to make the case to community leaders regarding how building up services at the pretrial phase could improve overall system outcomes.

Another area where Judge Anchondo has pushed for innovation is the development of services and resources available in Spanish. The city of El Paso and surrounding jurisdictions have a very large Hispanic population and he has taken it upon himself to tailor services to increase responsivity among this group which includes increasing culturally sensitive treatment approaches. An early adopter of the CARS assessment, Judge Anchondo recognized the importance of modifying the instrument for use among Spanish speakers. partnered with his court earlier this year to translate both the self and interviewer-administered versions of the CARS screener into Spanish. Cambridge Health Alliance is in the final stages of programming and will soon release Spanish versions for Judge Anchondo’s court to pilot, making his court the first within the criminal justice system to use a translated version CARS. Upon successful integration in the El Paso DWI Court, the Spanish versions of the screeners will be available to all interested agencies in early 2020.

The involvement of family members in the criminal justice and recovery process has been another area where Judge Anchondo has advocated for change. In order to facilitate long-term recovery, it is important to create a strong support network at home and within the community. While 12-step programs and other community resources are available, the support that is derived from immediate family can be particularly impactful. Judge Anchondo encourages family members to attend court and participate in activities to not only support participant recovery but to foster greater understanding regarding risk factors and ways to safeguard against relapse. Family members can be supportive of progress and promote accountability; by re-establishing family ties and relationships, the DWI court is simultaneously strengthening communities.

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