Drug testing bill would treat ‘people as guinea pigs,’ Michigan attorney says

February 25, 2016:

A bill designed to help catch more people driving under the influence of drugs would treat people like “guinea pigs,” an attorney opposed to the legislation says.

The bill, which passed the Michigan Senate last month, would allow the Michigan State Police to run a pilot program in five counties to conduct roadside saliva drug testing for cocaine, marijuana, heroin and other drugs.

Bill sponsor Sen. Tom Casperson, whose district covers much of the Upper Peninsula, said the legislation’s intent is to allow the state to come up with “a reasonable standard” for drug testing, like it has in place for alcohol testing.

“There’s no way to judge the amount that’s in their system and what’s enough to be impaired,” Casperson said.

Drug testing procedures are in place, but currently not carried out during traffic stops. Police can seek a warrant to force someone to submit to testing, which can take place at a hospital.

Casperson noted that police already arrest people for driving impaired now, without roadside testing.

“It could take a while to get there,” he said, to create a good way to test “on scene” for drugs.

The Michigan State Police would be tasked with creating a written policy for the program and instructed to submit a report upon the completion of the pilot program to the legislature.

“We’ve got to start somewhere,” Casperson said, adding, “We’ve got to come up with a good way to do it right.”

If the bill becomes law, it will be named ”Barbara J. and Thomas J. Swift Law,” after the couple killed in a March 20, 2013, crash in Escanaba, when a tractor-trailer ran a red light and careened into their Chevrolet Malibu.

Tractor-trailer driver Harley Davidson Durocher was convicted of charges including operating while intoxicated causing death, and sentenced to a minimum of five years and five months in prison for the crash.

Current Delta County Prosecuting Attorney Philip L. Strom said his predecessor prosecuted the Swift case, and declined to comment on how the proposed legislation would have applied to the case.

He said Durocher’s blood was draw at a hospital following the crash showed THC, an ingredient of marijuana, leading to the charges.

The legislation would provide a way to get the sample faster.

“Any sort of additional tools from the legislative or scientific community to help us determine what drugs are present more immediately, it’s going to be helpful prevention, criminal prosecution and for conviction by a jury,” he said.

Additional tools would hopefully help “catch and prosecute successfully” more people who drive under the influence, he said, and the proposed bill could act as a deterrent to stop people before they make the “very scary and terrible decision to use drugs and drive an automobile.”

‘A dangerous precedent’

Attorney Neil Rockind, founder of Southfield-based criminal defense law firm Rockind Law, said he opposes the bill and calls the proposed testing “bad science.”

“The criminal justice system wants to take science and turn it into a fast, easy utility,” he said. “Science is neither fast nor easy.”

Rockind said the legislation would set a “dangerous precedent” for Michigan.

“A pilot program is a test program and, in this case, treats people as guinea pigs to be studied,” he said.

“People are not guinea pigs. No citizen should be the subject of a test program when their liberty and way of life are on the line.”

Casperson’s bill, S.B. 434, is accompanied by another bill, Senate Bill 207.

The Senate Fiscal Agency report on S.B. 207 states it would authorize officers who are certified as drug recognition experts to require a person to submit to “a preliminary oral fluid analysis,” if the officer had reasonable cause to believe that the person had any amount of a “Schedule 1″ controlled substances including ecstasy, heroin, marijuana, and LSD in his or her body.

There are currently 84 drug recognition experts working in police agencies across the state, the report says.

Under the proposed pilot program, a drug recognition expert armed with a swab-based drug detection kit could be called to a traffic stop to administer the roadside test.

“The officer could arrest the person based in whole or in part upon the results of a preliminary oral fluid analysis. Results of the analysis would be admissible in a criminal prosecution or administrative hearing,” the fiscal agency reports.

Refusing to submit oral fluid would result in a civil infraction.

Rockind questioned who would own the saliva samples obtained through the pilot program.

“This issue absolutely must be addressed before any pilot program or formal program is introduced,” he said.

The program would cost local and state law enforcement agencies a combined total between $20,000 and $30,000, the fiscal report states, and a major cost would be the purchase of the swab tests, “which can range in price from $250 to $700.”

The bill is currently in the Michigan House Judiciary Committee.

Brad Devereaux is a reporter for MLive.com. Follow him on Facebook and Twitter.

By Brad Devereaux | bdeverea@mlive.com

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on February 25, 2016 at 8:45 AM, updated February 25, 2016 at 8:46 AM

Original post: http://tinyurl.com/znkrf68

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