At DUI Checkpoints, Are Drug Swabs Legal? - FindLaw Blotter
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At DUI Checkpoints, Are Drug Swabs Legal?

To curb a rising tide of drugged driving, law enforcement officers are beginning to use drug swabs at DUI checkpoints to test for marijuana, cocaine, and other illicit substances.

In Los Angeles, City Attorney Mike Feuer is pushing this new drug detection technique as a way of "enforcing all impaired driving laws," reports the Los Angeles Times. LAPD officers will be using drug swabs at DUI checkpoints on New Year's Eve and New Year's Day.

But is it legal for officers to use these drug swabs at DUI checkpoints?

DUI Checkpoints Are Legal, Warrantless Searches

Typically, law enforcement officers are restricted by a driver's constitutional rights to be free of warrantless searches, and a driver generally cannot be pulled over without reasonable suspicion of some sort of criminal activity.

Drivers who violate traffic laws or appear to be driving impaired can legally be pulled over by officers, who can then investigate and interrogate a driver for evidence of intoxication.

However, in most states, even without any evidence of traffic violations or intoxicated driving, any driver can be legally stopped and investigated at a DUI checkpoint. The U.S. Supreme Court has held that these stops, although not based on any particular evidence about the driver, are legal because the need to prevent drunken-driving accidents outweighs the minimal intrusion to sober drivers.

Police officers have been authorized to use Breathalyzers at these legal DUI checkpoints to test for intoxication, so what is different about these swabs?

Testing for Recent Drug Use

The new drug swab is an 8-minute test that uses a driver's saliva to detect the presence of cocaine, methadone, THC (the active chemical in marijuana), methamphetamine, and even prescription drugs like Xanax, reports the Times. And yes, you can still get a DUI for driving under the influence of legal drugs like Xanax.

This new method doesn't seem much more intrusive to drivers than the old DUI checkpoint methods for detecting alcohol use. It's simply an oral swab versus a Breathalyzer.

Just like with a Breathalyzer, drivers stopped at these Los Angeles checkpoints do have the right to refuse the test, but it will mean an automatic suspension of the driver's license -- even if the driver is completely sober.

Critics argue that this test doesn't screen for intoxication, emphasizing that trace amounts of an intoxicating drug can remain in a person's system -- for example, up to three days for meth and ecstasy, reports Al Jazeera America.

Though it hasn't been tested much in the courts, drivers should assume for now that drug swabs at DUI checkpoints are legal. Contact an experienced DUI attorney near you to learn more about the laws where you live.

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