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Breath Test to Detect Pot is Being Developed

Breath Test to Detect Pot is Being Developed

Posted by Robert J. Ault on Nov 30, 2014 | 0 Comments

I came across the following article in the Seattle Times this morning (such was, in fact, released on November 29, 2014).  The article explains how researchers at Washington State University are currently taking steps toward creating a Preliminary/Portable) Breath Test (PBT) device to assist law enforcement in determining whether or not a driver has active THC in their system.  I have mixed reactions toward the article & will explain such below.

http://seattletimes.com/html/localnews/2025131503_potbreathtestxml.html

A team at Washington State University is working to develop a breath test that could quickly determine whether a driver is under the influence of marijuana.

Law-enforcement officers already use preliminary breath tests in the field to estimate drivers' blood alcohol content. But no similar portable tool exists to test for marijuana impairment using a breath sample.

Stoned drivers have become an increasing concern since Washington voters legalized recreational use of marijuana in 2012. A quarter of blood samples taken from drivers in 2013, the first full year the initiative was in effect, came back positive for pot.

WSU chemistry Professor Herbert Hill said that existing technologies — including those already used by airport security and customs agents to detect drugs and explosives — can be re-purposed to test breath for THC, the psychoactive component of marijuana.

Hill said he and WSU doctoral student Jessica Tufariello are working on a handheld device that uses a technique called ion mobility spectrometry to detect THC in someone's breath.

Right now, officers and prosecutors rely on blood tests to determine how much active THC is present in a driver's blood. Those test results aren't immediately available to patrol officers who suspect someone is driving high.

Initiative 502 set 5 nanograms of active THC per milliliter of blood as the legal limit at which a driver is automatically determined to be impaired.

Initially, the marijuana breath test under development at WSU probably won't be able to pinpoint the level of THC in the body; it will only tell officers that some active THC is present, Hill said.

Still, Hill said such a tool could prove helpful to officers as they decide whether to arrest a suspected impaired driver.

“We believe at least initially that it would lower the false positives that an officer would have,” Hill said. “They would have a higher level of confidence in making an arrest.”

Law-enforcement agencies still would have to obtain follow-up-test results to use as evidence in court, just as they do after a positive preliminary breath test for alcohol impairment.

Hill said he and his research team plan to finish laboratory tests with a prototype marijuana breath test this year, then start testing human breath between January and June 2015.

After that, the researchers plan to test a version of the device out in the field, he said.

Some lawmakers at a Nov. 21 meeting of the Senate Law & Justice Committee appeared impressed by the research.

“WSU is going to be at the forefront, it seems to me, of supplying this kind of science and the technology that's based on it to police all over the country,” said Sen. Adam Kline, D-Seattle.

Bob Calkins, a spokesman for the Washington State Patrol, said the agency would “welcome anything that will help us get impaired drivers off the road.”

He said the State Patrol wouldn't want to use any new technology until it is fully developed, though.

“It needs to be rock solid before we'll adopt it,” Calkins said.

Some state officials have expressed concern about increasing numbers of drivers testing positive for marijuana impairment since the drug was legalized in Washington.

In 2012, 18.6 percent of blood samples taken from suspected impaired drivers in Washington tested positive for active THC, according to the Washington State Toxicology Laboratory.

That number rose to 25 percent of tested blood samples statewide in 2013, the first year I-502 was in effect.

*As mentioned above, my reaction to this article is mixed.  On the positive side, I certainly support the implementation of any tools that may assist law enforcement officers from wrongly arresting subjects.  As detailed in the article, there currently is no device available to assist an officer in determining whether a subject has "active THC" in their system.  Thus, a mere odor of marijuana coming from a vehicle will regularly cause an officer to believe they possess probable cause to make an arrest for DUI.  Obviously, a PBT (for active THC) could potentially prevent innocent drivers from being arrested when their vehicle merely has an odor of marijuana, but the driver, in fact, has not consumed THC. Obviously, a THC-PBT could potentially provide drivers the opportunity to demonstrate they had not consumed THC.

On the other hand, I believe the the article demonstrates how easy it is for the media to convey intended messages by distorting facts, etc...  First, the article fails to highlight that current PBT devices (for alcohol) are not scientifically reliable.  While Alcohol-PBT's, unlike the proposed THC-PBT, do provide a breath test number (for alcohol), such has never been considered accurate (Washington Administrative Code 448-15 highlights the use & protocol for a valid PBT result).  There is a reason that only an evidential breath alcohol test (rather than a PBT) is admissible before a trier of fact or administrative tribunal: a PBT is not scientifically reliable.  Rather, such is only used (if properly administered) to assist an officer in determining if they have probable cause to make an arrest.  As a Washington State DUI Defense Attorney, I own two PBT devices, & will say with firsthand knowledge that these devices are incredibly inaccurate (even when administered properly).

Additional issues I have with the article include the following:

"A quarter of blood samples taken from drivers in 2013, the first full year the initiative was in effect, came back positive for pot." What does "positive for pot" mean?  Does this mean any amount of THC (even if minuscule) was detected?  If such is below 5.0 NG/L, what does it matter?  Furthermore, does the percentage include tests where Carboxy THC (i.e. an inactive/"not-impairing" metabolite) was detected?  If so, what does it matter?

"Right now, officers and prosecutors rely on blood tests to determine how much active THC is present in a driver's blood. Those test results aren't immediately available to patrol officers who suspect someone is driving high." And they will never be made immediately available to patrol officers who suspect someone may be driving high, as THC-PBT's would only indicate the "presence" of THC.

"Initially, the marijuana breath test under development at WSU probably won't be able to pinpoint the level of THC in the body; it will only tell officers that some active THC is present." "Probably" won't be able to pinpoint the level of THC?"  Let's be clear: researchers at WSU are NOT currently in the process of creating a THC-PBT device that will ever be capable of determining one's actual THC level.

"The State Patrol wouldn't want to use any new technology until it is fully developed, though.  It needs to be rock solid before we'll adopt it. Calkins said." Because it isn't like Washington State Patrol to use any DUI Detection tools unless they are 100% reliable?  Keep in mind that all breath test results in King County were deemed admissible  for several years pursuant to "the  work product of the Washington State Toxicology Laboratory (WSTL) having been so compromised by ethical lapses, systemic inaccuracy, negligence and violations of scientific principals... that the work product would not be helpful to {a} trier of fact."  State v. Ahmach Sanafim, #C00627921.  Furthermore, the WSTL continues to use a breath test device for which employees of the lab itself have described as "obsolete."

"Some state officials have expressed concern about increasing numbers of drivers testing positive for marijuana impairment since the drug was legalized in Washington. In 2012, 18.6 percent of blood samples taken from suspected impaired drivers in Washington tested positive for active THC, according to the Washington State Toxicology Laboratory.That number rose to 25 percent of tested blood samples statewide in 2013, the first year I-502 was in effect." Let's keep in mind that only an extremely small portion of those arrested for DUI in Washington State ever provide a blood sample.  Thus, both the 18.6% and 25% calculations are less than one-fourth of an already minute number of people arrested for DUI in Washington State.  Furthermore, the reader is again told that these people had "tested positive for active THC."  So what?  Unless one is, in fact, at or above the legal limit OR their ability to drive has been affected by an appreciable degree, such is irrelevant.

If we are to believe the writers of the Seattle Times, Marijuana DUIs in Washington State are on the rise. The attorneys at Veitch Ault & Associates have been successfully fighting all types of DUI charges for over 28 years combined.  If you or someone you know has been arrested for DUI, contact Veitch Ault & Associates (425-452-1600) immediately to ensure that one is given the best chance possible to defend themselves.

About the Author

Robert J. Ault

Rob's status as one of the premier DUI defense lawyers in the state includes being repeatedly recognized as a Super Lawyer Rising Star.

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