San Diego Defenders DUI lawyers, Dan Smith and Jon Pettis are questioning the San Diego Police Departments use of a new device used to test drivers to see if they under the influence of ANY drugs. Dan Smith says that “law enforcement has had trouble for years trying to come up with reliable tests to determine whether a driver is under the influence of a variety of drugs including marijuana, cocaine or xanex, commonly referred to as the drink without a stink. ”
Jon Pettis, says Dan Smith, “is San Diego’s best DUI defense lawyer and he is not at all convinced The Drager 5000 in the panacea SDPD has been looking for.” The San Diego Police Department has two of the Drager 5000's which tests a saliva sample for several different drugs including marijuana, methamphetamine, cocaine, opiates and some prescription drugs. The test can take up to 20 to 30 minutes depending on the drug at issue. Along with interrogations and field sobriety tests, SDPD will use the Drager 5000 drug test in addition, to decide if the person should be arrested for a drug DUI.
The Drager 5000 uses a technology called lateral flow immunoassay to determine if you have a drug in your system. It is the virtually the same testing method as a pregnancy test says Jon Pettis of San Diego Defenders.
A saliva sample is collected from your mouth. It is then pressed onto a test strip. The strip has a pad that the saliva is put on. That pad has a substance that combines with the sample and begins to move it down the strip through capillary action. Along the path of the strip are other substances that attach themselves to specific drugs and turn color. At the end of the strip is an absorbent pad that absorbs what is left of the liquid that has flowed through the strip to prevent back-flow.
The Drager 5000 was first used on St. Patrick’s Day and has been used at about 10 DUI checkpoints since. Drivers should be very wary about agreeing to take this test for several reasons. The device is not particularly accurate. According to an evaluation of the Drager 5000 by the National Institutes of Health, at its best, it is accurate 85% of the time when testing positive for marijuana. That means 15 out of 100 people arrested will be innocent. This is a huge problem to over-come say the lawyers at San Diego Defenders. The device’s accuracy appears to be even less for occasional marijuana users. The Drager 5000 only tests for the presence of marijuana, not an amount. So, it may lead to your arrest even if you are not high or impaired by marijuana consumed earlier. Attorneys Smith and Pettis believe that there will be a challenge in the appellate courts under the so-called Kelley-Frye court decision wherein the appellate courts ruled that tests have to be generally accepted scientific principle within the scientific community.
Evaluating whether or not someone is under the influence of marijuana or any drug for that matter, can be very difficult. Why take the chance of getting arrested by giving the police by giving them more evidence in the form of a test result to hold against you in court. San Diego Defenders lawyers Smith and Pettis believe that the Vehicle Code must be amended to include the Drager 5000 or it will be no different than politely declining to take the hand held PAS breathalizer in use today. Smith says that the problem will continue to be that law enforcement tends to try to trick a driver into believing that the PAS hand held breathalizer is the chemical test referred to under the implied consent law. And, Smith says, “it is not, pure and simple, you may decline to take a PAS test if you are over the age of 21 and you are not on probation from a previous offense.”
While police officers have a great deal of experience investigating alcohol related DUI’s under VC23152(a) or VC23152(b) and there is at least some empirical research concerning the effects of alcohol on driving and the evaluation of field sobriety tests, there is very little concerning drugs.
At San Diego Defenders, the lawyers say they have read hundreds if not thousands of drug DUI arrest reports over the course of their combined 48 years of defending DUI cases. The drug recognition evaluation is very imprecise and the police often conclude that a person is under the influence of one drug and a test shows they were completely wrong. For, Jon Pettis notes that as an example, it is not uncommon for the police to concluded someone is under the influence of a central nervous system depressant, when in fact, the blood test reveals the presence of a stimulant. I am certain, if the police have a device that tells them a drug is in your system, their observations in their arrest reports will match that drug says Mr. Pettis. “It doesn’t mean they are lying, however, suspicious people tend to see exactly what they want to see. And that never seems to change.”
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