Just prior to the New Years weekend I saw a rash of articles talking about how DUI checkpoints in southern California were being set up not only with breathalyzer test machines but also cheek swab tests. Much of this is law enforcement’s response to the decriminalization and legalization of marijuana throughout the country. So I imagine that it is only a matter of time before the Massachusetts legislature approves similar tests. So what exactly are cheek swab tests and how do they work? These are portable machines that through your saliva can determine whether or not you have ingested alcohol or other drugs at some “recent” time. The inside of your cheek is swabbed. Then the swab is checked for the presence of listed substances including alcohol, marijuana, cocaine, ecstasy and certain prescription drugs. A positive test will likely result in an arrest and charge for OUI liquor or drugs depending on the test result.
How Will Cheek Swabs Be Used in Courts in Massachusetts?
Provided all other Massachusetts OUI laws remain the same I cannot see how these tests will initially have much effect in Massachusetts. OUI drug convictions in Massachusetts are rare. This is because local police are trained to recognize symptoms of alcohol intoxication only. As a matter of fact it is extremely uncommon to see anyone charged with OUI drugs in the Commonwealth. Sometimes these charges are brought where there is an accident and a toxicology report shows high levels of a drug. This is the exception however. I have seen cases dismissed where the police charge OUI drugs because the driver has some substance in his possession. However, since the officer cannot strap the defendant’s behavior to the use of that particular drug the case gets dismissed. Similarly, in Massachusetts drug recognition experts cannot offer an opinion on what another officer observed and conclude that someone was under the influence of some substance. Rather, the drug recognition expert must actually observe the defendant’s behavior before he can testify to his opinion that the person was under the influence of a particular substance. The same problem will frustrate Massachusetts law enforcement personnel if cheek swabbing is initiated here. Simply getting a positive test result does not permit testimony that the person was under the influence of that substance. The arresting officer will have to be trained in recognizing drug impairment symptoms before the test results become admissible. Moreover, the district attorney will have to show that the test is reliable. This will be difficult since cheek swabbing only shows the presence of drugs in the system, not when they were ingested. Some drugs stay in your system for days or weeks. Marijuana is known to remain in your blood for up to thirty days even though its effects wore days earlier. Also, as with breathalyzer tests and field sobriety tests, refusing to submit to the cheek swab will not admissible in court nor will it be a basis for determining probable cause to arrest you.
I do believe that these tests will be coming to Massachusetts soon. Remember, in Massachusetts your are under no obligation to take breathalyzer, blood or drug tests during or after a stop for OUI. If you are stopped and charged with DUI, call a lawyer. We can be reached at 617-263-6800.