Alabama Gov. Kay Ivey has signed into law a bill that law enforcement authorities say will help keep drug-impaired drivers off the road.
The new law gives oral fluid (saliva) tests for drugs the same “implied consent” legal standing as the breath and blood tests used to detect alcohol after an arrest. Drivers arrested for DUI will be required to submit to the saliva test or lose their driving privileges for three months.
Authorities say the oral fluid tests, which have been done in Alabama for about three years, are an important tool because the samples can be taken on the roadside after an arrest. Ideally, the oral fluid test results are used in conjunction with blood tests, which are often taken several hours after the arrest.
The bill, SB258 by Sen. Arthur Orr, R-Decatur, passed the House and Senate without a dissenting vote. It got final approval on the last day of the legislative session, May 17.
Officials with the Alabama Department of Forensic Sciences and the Alabama District Attorneys Association, who helped write the bill, say it will save lives.
“It will definitely help make Alabama roadways a safer place,” ADFS Director Angelo Della Manna said. Della Manna said the legislation is the result of several years of work.
DUI tests
When police stop a driver for suspicion of DUI, they can give a preliminary breath test to help determine probable cause. Drivers can refuse the test.
If the officer determines, based on his observations, field sobriety tests, or some combination of factors, that a driver is impaired and makes an arrest, a part of the DUI law called implied consent comes into play.
Implied consent means that anyone who drives a vehicle is deemed to have consented to a chemical test of breath, blood, or urine for alcohol after an arrest for DUI.
After the arrest, a driver is asked to take an official alcohol breath test, typically at the police station or jail.
Drivers can refuse to take the test. But under implied consent, they face an automatic 90-day license suspension even before a DUI conviction. For repeat offenders, the suspension is a year or longer.
The ADFS oversees and manages the state’s DUI breath alcohol testing program. It owns the approximately 236 Draeger breath testing machines at police agencies across the state.
Oral fluid tests
For several years, ADFS has also operated an oral fluid drug testing program. There are two main components.
The agency has approved three roadside oral fluid screening devices. They are used by some police departments to establish probable cause before an arrest, similar to the preliminary breath tests for alcohol.
SB258 does not change the use of those roadside oral fluid screening tests.
But the ADFS also oversees a more extensive program of post-arrest oral fluid tests. The tests are used to confirm the presence and level of drugs in the saliva. Police take a saliva sample at the roadside using a Quantisal collection device.
“That is collected and handled just like any other toxicological evidence,” said Bill Lindsey, traffic resource prosecutor for the state Office of Prosecution Services, who was involved with SB258. “It’s sealed and sent to Department of Forensic Sciences lab where it is tested. And they actually quantify it.”
ADFS has done the oral fluid lab tests since 2018.
Published studies have confirmed the reliability and validity of oral fluid tests for identifying drugs, according to the Society of Forensic Toxicologists.
Expanding implied consent
Before SB258, the oral fluid tests happened only with the driver’s consent or through a judge’s order.
But SB258 brings the saliva tests under implied consent. That means drivers who refuse the test after an arrest are subject to automatic drivers license suspension, just like those who refuse the post-arrest breath test.
SB258 also made a second change to implied consent, expanding it to cover all impairing substances, not just alcohol. Before SB258, implied consent applied to drugs only in cases with serious injuries or death.
“Previous to Senate Bill 258 there is implied consent for alcohol,” Della Manna said. “Which meant if the officer makes these observations and you fail the field sobriety test, there’s implied consent that you’ll come back to the station (after an arrest) and blow into our instrument to show what the blood alcohol level is. If there’s a refusal then there’s a penalty, suspended driver’s license. So, this now extends that and facilitates the collection of the saliva sample, oral fluid sample, for our DUI cases. So, now we have implied consent for alcohol and for drugs in Alabama.”
Lindsey said the information obtained from the roadside saliva collection can be valuable. For example, there are cases where the driver appears to be impaired but the breath test does not show alcohol.
Police can obtain a search warrant for a blood test to show what’s causing the impairment. But Lindsey said that generally takes about two hours.
“That time lapse allows for drugs to cycle out of the body or process out of the body,” Lindsey said. “So, you don’t get necessarily a clear picture of impairment all the time in every case.
“With collection of oral fluid after the arrest, this collection can occur immediately after the arrest on the roadside.”
Della Manna said it is important to have results of the saliva test to complement what blood tests show because of the time difference.
“Ideally, get the warrant for a blood sample as well, which is always the gold standard of collection samples, and then we’ll be able to have two different timepoints – at the roadside timepoint and then a blood sample downstream ideally as well,” Della Manna said.
Twenty-two states authorized oral fluid tests to detect drugs as of October, according to the American Automobile Association. Fourteen states included oral fluid tests under implied consent.
Growing problem
Officials said drug-impaired driving now rivals the problem of drunk driving.
Della Manna said the DUI lab tests performed by ADFS in 2019 showed marijuana in drivers’ systems more than any other drug, surpassing alcohol for the first time.
- Marijuana, 521 cases
- Alcohol 445 cases
- Methamphetamine 371 cases
- Alprazolam (Xanax) 229 cases
- Cocaine 111 cases
It’s common for tests results to show multiple drugs, Della Manna said.
“The timing is appropriate because we’ve seen these trends where more and more of the DUI cases that are submitted to the forensic laboratory have less and less alcohol and more and more drugs in Alabama,” Della Manna said.
The bill makes other changes in the DUI law. It authorizes paramedics and phlebotomists to draw drivers’ blood for tests. Previously, the law allowed doctors, nurses, and “other qualified persons.” Authorities say allowing paramedics to draw samples will be more efficient than taking suspects to a hospital to have blood drawn.
The law also says police can testify in court on the results of a horizontal gaze nystagmus test, a field sobriety test to detect involuntary jerking of the eyes, which can be a sign of impairment.
Rep. Rex Reynolds, R-Huntsville, former police chief in Huntsville, handled SB258 in the House. Reynolds said DUI detection is one of the most difficult tasks for law enforcement on patrol.
“Law enforcement must have the necessary tools to combat impaired drivers and prosecutors need the ability to use these tools in court,” Reynolds said in an email. “This bill expands what tools law enforcement can use after arrest and gives recognition to their training and experience.”
Alabama District Attorneys Association Executive Director Barry Matson said SB258 can be a “game changer.”
“Somebody is in a one-ton ball of steel going down the road at 75 miles an hour and you pass them going head on less than 13, 14 inches from them,” Matson said. “And all it takes is one slipup.
“So, the more drugged drivers we can remove from the roadways and make them safer, it’s better for us and our kids. This is a tremendous bill and it does a lot of good things.
“It doesn’t take away any right or any due process from anyone. It just layers into drugged driving the rules that we had in place for drunk driving.”
The new law takes effect in August.