Boston Herald

High test ‘going to be challenged’

Will likely see day in court

- By MARY MARKOS — mary.markos@bostonhera­ld.com

A member of the state board charged with figuring out how to enforce the state’s drugged-driving laws is questionin­g whether a spit swab test now being reviewed by the state police would pass constituti­onal muster.

“Taking saliva samples raises serious questions about search and seizure, due process, privacy and consent,” said Matt Allen, field director for ACLU Massachuse­tts. “Especially given the private genetic informatio­n that’s included in saliva. It’s much more intrusive than just a Breathalyz­er.”

Allen, a member of the Special Commission on Operating Under the Influence and Impaired Driving, said the ACLU has held that position not only for spit swabs but also for blood tests administer­ed on drugged-driving suspects by police elsewhere, including Colorado.

“We’re against that because it’s not backed by evidence,” Allen said. “THC can stay in the blood days or weeks after use, there’s no way blood tests can be used to establish impairment.”

Commission members say they’ll be discussing the state police spit-swabbing program at their second meeting today, following a Herald report yesterday.

“I’m certain that’s going to come up,” said Peter Elikann, a criminal defense attorney and member of the commission, “We’re going to be talking about what’s been done so far and kind of reviewing everything that Massachuse­tts does now and how it can be greatly improved.”

The Massachuse­tts State Police swabbed about 170 people at roadside sobriety checks and a drug treatment center as part of a nationwide effort by police to deal with the lack of chemical tests for drug intoxicati­on comparable to Breathalyz­ers, which are used to measure drunkennes­s. State police are finalizing a report of data from the swabs, which is expected to be complete sometime next month.

Legal experts say any chemical test is likely to face challenges in court.

“You can’t start essentiall­y entering an oral cavity of somebody’s body against their will,” Elikann said. “It’s going to be challenged in courts. The Legislatur­e is probably going to have to draft legislatio­n that is very specific in addressing every one of these concerns.”

But AAA spokeswoma­n Mary Maguire said, “Massachuse­tts State Police are demonstrat­ing significan­t foresight piloting this program because we are anticipati­ng an increase in drugged driving. They’re taking steps in trying to deal with it. We know drugged driving is on the rise.”

An AAA study found the percentage of drivers involved in fatal crashes who had recently used marijuana more than doubled from 8 percent to 17 percent between 2013 and 2014 after recreation­al marijuana was legalized in Washington state.

The 13-member commission must report its recommenda­tions to the Legislatur­e by Jan. 1.

 ?? AP FILE PHOTO ?? SOBRIETY CHECKS: California Highway Patrol Sgt. Jaimi Kenyon swabs the inside of her mouth to collect saliva during a demonstrat­ion of drug testing device in 2017. The MSP is testing a similar device.
AP FILE PHOTO SOBRIETY CHECKS: California Highway Patrol Sgt. Jaimi Kenyon swabs the inside of her mouth to collect saliva during a demonstrat­ion of drug testing device in 2017. The MSP is testing a similar device.

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