Mike Wynn, @MikeWynn_CJ 11:54 p.m. EDT September 16, 2015
Above: Schwendau, assistant director of Highway Safety Programs.
Right now, officials are only testing the kits for accuracy and reliability, administering them to volunteers after an arrest is complete. If they prove reliable, lawmakers say they will consider legislation next year to expand their use as a common part of police work.
Schwendau says police might soon use the swab kits in the same way they rely on roadside breath tests to identify drunken drivers, adding one more step to “remove that question of doubt” during a traffic stop.
Defense attorneys are more skeptical, warning that the tests could lead to invasive searches or give officers false pretense for arrests.
“They are chipping away at our rights — I just don’t know how else to put it,” said Larry “The DUI Guy” Forman, an attorney in Louisville who specializes in impaired driving cases.
Damon Preston, deputy public advocate at the Department of Public Advocacy, cautions that the courts still need to determine the reliability of the kits and what circumstances warrant their use in the field.
“The ease or simplicity of a sobriety test should never infringe upon the rights of persons to be free from unwarranted or invasive searches of their bodies,” he said.
The side of safety
The swabs don’t show a person’s level of impairment — only that drugs are present in their system. Supporters say Kentucky law would not allow them as evidence in court, and to build a case, police would still rely on the same process they currently use in investigations.
That typically involves a field sobriety test followed by an evaluation from a drug recognition expert, who is trained to monitor the suspect’s behavior and physical condition to determine their level of intoxication. Police also collect blood samples, which are much more conclusive.
Schwendau said the roadside tests could help police narrow down which drugs to test for in a blood sample. He said the kits already have proved successful in other states, particularity in California where authorities have upped the ante with digital devices precise enough to provide court evidence. That has saved the state money in the long run because more suspects are pleading out cases, he said.
On his website, Forman advises people to refuse field sobriety tests and breathalyzers to improve their chances of a successful defense in court. If swabs become commonplace in Kentucky, Forman says, drivers should refuse them as well.
One problem, he argues, could occur when people use drugs earlier in the day but are pulled over after the effects have worn off. He cited concerns that the swab could still test positive even though a driver is no longer under the influence.
Forman also questions how variations in temperature or allowing kits to sit in a hot police car for long periods might affect the results.
“It just gets really, really hairy, really fast,” he said.
But Schwendau points out that drivers who are not impaired will be vindicated in later tests. He also worries that while most people know it’s wrong to get behind the wheel drunk, many still think it’s OK to take an extra prescription pill before driving.
“We are doing it to save lives and get risks off the road,” he said. For police, “the best decision I think always is to err on the side of safety.”
According to Kentucky State Police, authorities suspected that drugs were a factor in nearly 1,600 traffic collisions across the state last year, resulting in 939 injuries and 214 deaths.
In some areas struggling with epidemic drug abuse, high drivers are more common than drunken drivers, according to Van Ingram, head of the Office of Drug Control Policy. A lot of areas are having problems with drivers who are intoxicated on both drugs and alcohol, he said.
House Judiciary Chairman John Tilley, D-Hopkinsville, said lawmakers will want to look at the highway safety office’s pilot project before putting forth any legislation. Still, he reasons that the swabs also could help exclude drivers who might otherwise fall suspect because they swerved accidentally.
Officials have distributed 100 kits for the pilot tests, which they hope to wrap up in October.
Schwendau said he will bring the results to a state task force on impaired driving along with the Governor’s Executive Committee on Highway Safety.
Even if the kits are approved and adopted, police face a cost of $7 per unit.
Schwendau said local communities would have to choose whether to use them since the kits are too expensive for the state to provide. But departments could apply for federal grants, he said.
“It’s not our place to force it on them,” Schwendau said. “We just want to offer them a better tool.”
Reporter Mike Wynn can be reached at (502) 875-5136. Follow him on Twitter at @MikeWynn_CJ.