One local law enforcement agency is convinced that it has found the right tool to reduce the rising number of DUI-Drug cases in DuPage County.
Alcohol-impaired drivers still cause about twice as many traffic deaths in Illinois than marijuana-impaired drivers, but the gap is much narrower today than it was 10 years ago. Nationwide, the number of “drugged” drivers exceeds the number of “drunk” drivers, according to the Governor’s Highway Safety Association. So, Carol Stream police will soon use a mouth swab test kit that supposedly detects the type and amount of drugs in a person’s system. The manufacturer claims that the device is reliable, but not all studies support that conclusion. Nevertheless, if the test is approved, it would change the way DUI-drug cases are prosecuted. Currently, prosecutors must use circumstantial evidence unless officers obtain search warrants for blood draws.
One defense attorney scoffed at the development. He claimed that “They might just as well hand somebody a bag of nachos and see if he eats it,” because “That’s just as reliable.”
What Scientific Tests are Used in Illinois Criminal Cases?
While this issue sometimes comes up in synthetic marijuana cases and some other drug possession matters, most questions about chemical tests arise in DUI cases. Essentially, for the results to be conclusively admissible, the test must pass muster under the following inquiries:
- Reliable Method: Actually, the issue is not whether the test method is reliable, but whether or not a person in authority, usually the judge or the legislature, says that the method is inherently reliable.
- Reliable Results: The jury must be convinced, beyond a reasonable doubt, that no outside variables significantly affected the results, and that the device worked as it was intended to work.
- Good Working Order: The device itself must be well maintained and expertly calibrated. If the state cannot produce such evidence, it is almost impossible for the prosecutor to meet the burden of proof on this point.
- Well-Qualified Operators: The arresting officer must have sufficient training with the device to use it properly. Additionally, the chemist or technician who testifies in court must have sufficient credentials.
A Breathalyzer is a good example. The legislature has concluded that the overall process, which involves measuring breath alcohol and estimating Blood Alcohol Content based on that result, is generally reliable. But the results themselves can be challenged, based on things like mouth alcohol. If the defendant burps or belches, even a little bit, in the quarter hour before the test, the results may be off. Most police Breathalyzers are well-maintained, although there are always exceptions. Finally, with regard to the court testimony, most Chicagoland prosecutors call technicians instead of chemists to the stand, so defense attorneys sometimes partner with degreed chemists to challenge their conclusions.
Attorneys advocate for their clients in the statehouse in addition to the courthouse because if the Illinois legislature passes unfavorable laws about chemical tests, many defense strategies could be compromised. If the legislature does seek to approve drug swab tests, defense attorneys will be on hand to help ensure that lawmakers pass statutes that protect everyone’s interests, including both law enforcement and private citizens. One particular issue with marijuana field tests is the amount of THC that actually impairs driving, and that question must be firmly settled before the legislature takes any action.
Reach Out to Experienced Lawyers
Swab tests may one day change the face of DUI-Drug prosecutions. For a confidential consultation with an experienced criminal law attorney in Schaumburg, contact Glasgow & Olsson.
(image courtesy of Sawyer Bengston)