Authorities are continually adapting technology to aid in the fight against drunken or drugged driving. To test for drugs in drivers' systems, mouth swab tests (MST) were introduced after police officers became concerned about the rise in incidents of drivers operating cars while under the influence of marijuana following the passage of Prop 64 in 2016. Today, arresting officers conduct MSTs when they suspect you are driving under the influence of drugs (DUID) at sobriety checkpoints or after traffic stops. The tests detect specific narcotics, like cannabis or cocaine, unlike breathalyzer tests.
Like the breathalyzer tests conducted on the field, if the MST comes out positive, the stopping officer will arrest you for DUID. Whether you are high on drugs or not, the question that will be in your mind is, “Can I decline the MST for DUI like I can with the breathalyzer test?” Yes, you can decline the test. However, before you do this, you must consult with a DUI attorney to understand your rights.
Current Technology for Drug Detection in Intoxicated Drivers
When a traffic officer reasonably believes you are operating a car while impaired by alcohol, they stop your vehicle for further investigation to find evidence for an arrest. After the stop, the officer asks you to provide a breath sample for preliminary alcohol screening. The devices used at this phase help detect alcohol in your deep lung air and calculate the blood alcohol mass.
In the past, the only method the police had to test for drugs during a traffic stop related to suspicions of drugged driving was to draw blood and send it to a government lab for examination. The process used to take weeks; hence, the police could not obtain the results immediately. However, technology has improved today, and officers can test for drug presence in your system and receive immediate results at the sobriety checkpoint with the help of an MST.
Understanding a Mouth or Cheek Swab Test for Drunk Driving Cases
Driving while under the influence of drugs, including marijuana, is prohibited by California's DUI laws. Police use MSTs to identify drivers who are impaired by drugs because standard field tests, such as breathalyzer tests, are unable to detect drugs in the bloodstream. MSTs are field sobriety tests (FSTs) that assist officers in finding probable cause or reliable evidence to arrest you for DUID. The machine detects drugs but does not indicate the specific levels of narcotics in your system. You will need a blood test to establish the degree of intoxication, although there is no designated limit for DUI drugs.
When administering an MST, a law enforcement staff member gives you the cheek swab and asks you to rub it in the mouth for some time. Doing so helps the swab collect a sample of your mouth fluid for testing. After taking the fluid sample, the officer returns the swab to the machine with a testing solution. After at least six minutes, the device prints out the results. MSTs are for the preliminary screen. When the tests are positive, the officer arrests you and asks you to provide a blood sample.
Taking an MST
Can a motorist decline a mouth or cheek swab test? Yes. You have a constitutional right to refuse the tests. Also, law enforcement should not force you to take the examination during the investigation. Therefore, when an officer wants you to conduct the tests and you are unwilling to, you can say “no” without violating the law. However, you must be 21 or older and not serving probation to decline this PAS test.
If you are an adult, there is no penalty for declining an MST. Nevertheless, you will still face arrest for suspicion of DUID. After arrest, you will have no option but to submit a blood sample for testing. The field investigator looks for the following indicators to conclude that you are operating a vehicle while impaired by drugs:
- Erratic driving.
- Unsafe driving.
- Marijuana or cannabis odor in the car.
- Bloodshot eyes.
- Lack of body coordination.
- Lack of focus.
- drug paraphernalia in the vehicle.
With these symptoms, even if you refuse to take an MST, the officer will call a drug recognition expert (DRE) at the scene for further investigation. These experts are trained to look for drug intoxication signs. If the specialist confirms that narcotics impair you, you will be arrested even if the MST results are negative.
Besides, the officer will obtain a warrant to let them take the sample, and after that, you will be arrested for refusal to submit to chemical testing. Refusal to submit blood samples for testing after arrest will result in additional charges of refusal to submit to chemical testing, which is punishable by mandatory jail incarceration.
If you are an underage driver or adult on probation and refuse to take an MST, you risk administrative driver’s license suspension by the Department of Motor Vehicles. You will have ten days to request an administrative hearing; otherwise, your driving privileges will be automatically suspended.
You must understand that the officer will have probable cause for the arrest if the results are positive. Once you are in their custody, they will administer a blood test, whose results will be used as evidence in court.
Specific Drugs Detected by a Cheek Swab Test
MSTs identify seven forms of drugs in your bloodstream. These drugs are:
- Cocaine.
- Amphetamine.
- Opiates.
- Benzodiazepines.
- Marijuana.
- Methamphetamine.
- Methadone.
When you have ingested marijuana recently, you will feel scared when the stopping officer produces an MST device instead of a breathalyzer test because you are afraid the THC will be detected, leading to DUID apprehension. However, there is no need to be scared because the device only detects THC when active, or delta-9 THC that only stays in your body for multiple hours. Therefore, if you had taken marijuana a day or two before the screening, the device would not detect the inactive THC.
While an MST identifies drugs in the body, it does not measure drug levels. Only your blood sample can determine the drug levels in your bloodstream or system. So, even when the results are positive, they cannot be used as evidence in court. They only provide proof for an arrest, after which the law requires you to submit a blood sample for chemical testing. The blood tests determine the drug levels in your system, and these are the results the prosecutor uses against you in court to prove you are guilty of DUID.
You should reach out to a DUI defense attorney when the MST results turn out positive. The tests can detect even small amounts of drugs in the system, even when the drugs are not sufficient to impair your mental and physical capabilities. If you partner with an attorney early in the case, they will conduct independent investigations and obtain the evidence necessary to fight the DUID counts and bring about a positive outcome.
California Drugged Driving Designated Limit
California statutes do not have a designated limit for DUI drugs, unlike DUI cases whose blood alcohol content (BAC) limit is 0.08% for motorists and 0.04% for commercial drivers.
Because experts cannot determine the precise amount of drugs that will impair a driver's ability to drive, there is no legal limit on drug-related DUIs. Therefore, the law forbids individuals from operating an automobile while impaired by narcotics, intoxicated by a blend of alcohol and substances, or addicted to substances under Vehicle Code (VC) 23152(c). The statute does not state the legal limit for a driver to be deemed to be driving while impaired by drugs.
Therefore, law enforcement can arrest you for DUID when they observe drug intoxication signs. Also, during prosecution, the prosecutor is not required to prove the specific level of drugs in your bloodstream to obtain a conviction. They only demonstrate that there were particular narcotics in your system at the time you were driving.
California DUID Penalties
VC 23152(f) and VC 23152(g) are the statutes that outline DUID. The offense is a misdemeanor and attracts the same penalties as a DUI. The punishments for a first misdemeanor DUI offense are:
- Possible jail incarceration.
- 36 to 60 months of probation.
- Mandatory enrollment in DUI school.
- Suspension of driving privileges.
- Court-imposed monetary fines of at most $1,800.
A violation of VC 23152(f) and 23152(g) is chargeable as a felony if you have at least four prior DUIs, a single prior DUI guilty verdict, or a drinking and driving offense causing injuries. The penalties for a felony DUID offense are:
- At most, 36 months of jail incarceration or 48 months if another party suffers injuries.
- Court financial fines of no more than $1,000 or $5,000 when someone sustains injuries.
The penalties you will face for DUID vary significantly based on your case’s unique circumstances. The aspects the judge takes into account when imposing the punishments are:
- Your criminal record.
- Exceptional circumstances in your offense.
- Whether a third party suffered injuries.
- Whether a drug treatment program would be beneficial.
Legal Defenses for California DUID
The penalties for DUI involving controlled substances are life-changing. Therefore, you should hire an attorney immediately after the arrest to gather evidence, evaluate the prosecutor’s evidence, and craft defense strategies to prevent a conviction for DUID. The attorney can present general DUI defenses or defenses specific to the offense. General defenses against the charges are:
- Arguing that the apprehending officer lacked probable cause or proof to make the arrest.
- Your attorney claims that the officer who apprehended you did not read the Miranda rights before conducting interrogations.
- The investigating officers did not adhere to Title 17 procedures like gathering, storing, and evaluating blood or urine samples.
Particular defenses are specific to VC 23152(f) and (g) violations. One of these crucial defenses is asserting that even though the MST detected narcotics in the bloodstream, the level or degree of drugs was not sufficient to meet the intoxication or under-the-influence threshold.
So far, no study has shown a correlation between drug levels in the system and a driver’s intoxication. The effects of drugs on individuals vary, with some developing tolerance to substances, hence having little impact on their mental and physical abilities while driving. Others become impaired with minimal amounts of drugs in the system. Therefore, drugs can be in your system without giving you a high while driving.
Detection Window for Drugs during a Mouth Swab Test
The detection window is the period for controlled substances to be identified in your bloodstream. The window is usually longer than the duration you are high, which makes it possible for an MST to detect drugs even when you are not high or intoxicated. Several aspects affect the detection window, including metabolism, tolerance, height, drug ingestion method, weight, and drug usage record.
The Intoxication Symptoms had Other Causes
When you decline to take an MST, the officer calls a DRE to the site to observe you for intoxication signs before making an arrest. These experts have special training to identify a person intoxicated by narcotics. Unfortunately, few counties have these experts, so one does not have to come to be available for your case. The screening by a DRE officer happens in a police station, after which they form an opinion about you. If your evaluation occurred on the roadside, like that of a DUI, your attorney can challenge the expert's argument, saying the observation should have happened at the station.
Also, if the officer forces you to answer the questions or perform FSTs, your attorney can claim they violated your constitutional rights.
You can contest your arrest and the evidence obtained by claiming that there was no DRE officer at the scene and that the apprehending officer lacked property training to identify signs of drug intoxication. Even if the officer declared you impaired, made an arrest, and conducted a blood test, the results will be inadmissible in court even if they are positive because they were not qualified to perform the examination. Your attorney will file a motion to suppress the evidence obtained illegally. Also, the officer’s testimony about your drug intoxication will not be accepted, leaving the prosecutor with a weak case or insufficient evidence. That way, the DUID charges will be reduced to a lesser crime or dismissed.
Contact a Competent DUI Defense Attorney Near Me
The outcome will be positive or negative when you agree to an MST. If they are positive, you will face a DUID apprehension. Even if they are negative, the officer could still use signs of drug impairment to arrest you for DUID. There is no actual benefit to taking the test. If you are under arrest or face DUID charges, you need a drinking and driving attorney to defend you. Call the Jonathan Franklin DUI Attorney today at 323-464-6700 for a no-obligation case discussion in Los Angeles, CA.
