By Earl G. Penrod, Senior Judge | Indiana Judicial Outreach Liaison
Scenario: An Officer pulls over a vehicle for traveling 65 in a 55 mile per hour zone. The officer suspects the driver is impaired and administers field sobriety tests and a PBT, which results in a reading of .00. The officer then tells the driver that the next roadside test is an oral fluid test for drugs called SoToxa. When the driver says he has never heard of a roadside drug test, the officer replies that Indiana law enforcement now has about 70 saliva drug test instruments in the state.
Regardless of whether the driving public is aware of the utilization of oral fluid tests by law enforcement, it is important for judges and other stakeholders in the criminal justice system to be aware of the various law enforcement tools and techniques to address drugged driving. The procedures, protocols, and tools for detecting and prosecuting alcohol impaired driving are relatively consistent and drunk driving cases are not regularly litigated in most courts—assuming an officer complies with standard operating procedures.
However, the persistent increase in drugged driving cases has required law enforcement to adapt and modify its approach to detect and deter impaired driving caused by drugs other than alcohol. The SoToxa Mobile Test System is the latest tool being utilized by law enforcement to address the increasing problem of drugged driving, but it is not the only drug-impaired driving program law enforcement utilizes across the country.
Advanced Roadside Impaired Driving Enforcement (ARIDE)
One such initiative is a specialized law enforcement training program called the Advanced Roadside Impaired Driving Enforcement program, which trains officers to recognize signs and symptoms of impairment based on alcohol, drugs, or a combination of both. The ARIDE program is not designed to provide the officer the ability to categorize impairment with a specific drug category, but it assists officers who observe signs of impairment that are not fully explained through typical alcohol impairment detection protocols.
Drug Recognition Expert (DRE)
In addition to the ARIDE program, a number of jurisdictions now have a certified Drug Recognition Expert, which is a much more extensively trained law enforcement officer who utilizes a standardized twelve-step protocol called a Drug Influence Evaluation to determine which category of drugs is causing impairment in a driver. The DRE conducts an evaluation that builds on and greatly enhances the standard procedures utilized by law enforcement when alcohol impairment is suspected. The program has been in existence for a number of years, and a concerted effort is being made to increase the number of DREs. According to Robert Duckworth, Director of the Traffic Safety Division for the Indiana Criminal Justice Institute, there are 250 certified DREs in Indiana as of November 2020.
An excellent discussion of the admissibility of evidence from a Drug Recognition Expert may be found in Dycus v. State, 108 N.E.3d 301 (Ind. 2018) in which the Indiana Supreme Court held that a driver may validly consent to a drug influence evaluation without first receiving a ”Pirtle warning” (the right to consult an attorney prior to consent) under the Indiana Constitution. Also relevant to impaired driving enforcement, Dycus reminds us that no “Pirtle warning” is required for a pat-down for weapons, field sobriety tests, chemical breath tests, and blood draws for blood alcohol content.
The ARIDE program and the DRE program are designed to assist law enforcement in addressing drug-impaired driving, but the continuing increase in drugged drivers exacerbates the limited scope and availability of these programs. Also, while a well-trained and experienced DRE may provide important and relevant evidence, some DREs may be less effective and the objectivity and accuracy of the evaluation may be challenged. As a result, efforts have continued to develop devices and instruments that would supplement law enforcement’s efforts and be more widely available than DRE officers.
Roadside Oral Fluid Testing
Manufacturers of drug testing devices have been researching and developing screening tests that would be reliable, relatively easy to administer, and not overly intrusive to drivers. Attention has centered on roadside oral fluid testing instead of collecting a blood or urine sample—with the test being used in the same fashion and of the same purpose as a Portable Breath Test for alcohol. Specifically, the oral fluid drug test results would be one of the totality of circumstances used to support probable cause and the issuance of a warrant.
Mr. Duckworth at the ICJI notes that Indiana has deployed 70 roadside drug detection devices called the SoToxa Mobile Test System (formerly known as the DDS2 Mobile Test System), manufactured by Abbott and distributed by Intoximeters. It is a portable, handheld device that analyzes saliva for the presence of up to 6 drug categories, including: Amphetamine, Benzodiazepines, Cannabis (THC), Cocaine, Methamphetamine, and Opiates. The driver is given a collection device to swab the mouth; the indicator turns blue when a sufficient sample has been collected. A sample collection is expected to take 60 seconds or less, and the analysis takes about 5 minutes. Further, the officer can print the results roadside or later, from stored results.
The SoToxa Tests have been provided to agencies in larger communities that do not have sufficient numbers of DREs as well as agencies serving more rural areas where there are no DREs typically available. Officers who receive the SoToxa Test System must complete a training regimen that includes classroom training, written assessment, and the psychomotor skill of collecting an oral fluid sample. Qualified trainers are law enforcement officers who are Standard Field Sobriety Test instructors and also have completed either ARIDE or DRE training.
The State of Indiana will be collecting data from all tests conducted in the field and comparing them to blood results from samples submitted to the Indiana State Department of Toxicology to permit a program assessment and report within a year.
Utilizing a device for oral fluid analysis roadside is a recent initiative in Indiana, and other states also have begun using such devices. For example, SoToxa Tests have been reportedly utilized in Illinois, Oklahoma, and Alabama. The State of Michigan expanded their pilot program for roadside drug testing to include all counties in the State after a one-year pilot program in 5 counties late last year. Michigan has utilized the SoToxa Test System in their pilot program.
Nothing in this column is intended as an endorsement of the SoToxa Mobile Test System nor is it suggested that the results of a SoToxa test are admissible for probable cause or any other purpose. Instead, the goal is to inform judges and other criminal justice stakeholders that oral fluid testing devices are now being used in the field by law enforcement and judges should be prepared to address any issues that may arise due to their utilization.