Starting at the end of 2013, the LAPD rolled out a new mouth-swab roadside drug testing kit for use at DUI checkpoints. Well, for 2014, patrol officers now carry these kits as part of their standard issued equipment, so we will undoubtedly see their use rise. Below is what you MUST know about these tests and your legal rights.
First, these kits test for seven different drugs, but will inevitably be used most on drivers suspected of driving while under the influence of marijuana. There is no legal requirement that a driver submit to such a test. Nowhere is it codified that a driver must submit to an oral-swab drug test if they are suspected of DUI for drugs. However, that will not stop officers from using intimidation, coercion, or outright misrepresentations to try and steer drivers to consent to these tests.
At this point, it’s critical to make an important distinction: oral roadside drug tests are different than the breath or blood sample you are required to give, post DUI arrest. Failure to give a breath or blood sample, post DUI arrest, can result in a one-year license suspension, under California’s implied consent law, in addition to potential DUI charges. However, with regard to these oral-swab drug tests, you have the right to refuse them and face no penalty, despite what officers in the field may threaten.
Given the rise in number of medical marijuana patients and collectives in the state, there are many drivers on the road who are medicated; it is only a matter of time until the legislature acts to address this trend and makes these roadside drug tests mandatory. However, for the time being, know your rights and recognize that you do have the right to refuse oral-swab roadside drug tests without consequence.