Colorado State Trooper Ron Krasnisky shows the department's oral fluid drug screen testing device, which will be used during a pilot program to test the device effectiveness. The system uses a saliva collection device to test impaired drivers for marijuana use as well as other drugs. (Kathryn Scott Osler, The Denver Post)

Marijuana DUI devices given test drive by Colorado State Patrol

After getting arrested on suspicion of driving while high, some Colorado suspects are also being asked by select Colorado State Patrol troopers, “Would you like to be a volunteer in our DUI marijuana pilot program?”

“Sometimes people are glad to participate, and sometimes they want nothing to do with us,” said Major Steve Garcia, who is with the State Patrol training branch.

The State Patrol is testing technology that could more accurately determine whether someone was driving while high.

The program, which began in March, is trying out five devices from companies based around the country. The technology uses a driver’s saliva to determine whether there are drugs in his or her system and to measure the amount, Garcia said. The Colorado legislature has determined that the legal limit for impairment by marijuana is 5 nanograms of THC in the blood, although that limit is a presumption only and has been rejected in court.

“At least one of these devices is in every single (field office) across Colorado,” Garcia said.

The program, in which more than 125 troopers are trained in the new technology, was rolled out in an attempt to combat a potential rise in the number of high drivers since the legalization of recreational marijuana three years ago. The Colorado attorney general’s office kicked in $233,747 to help purchase the devices statewide, said her spokesman, Roger Hudson.

The data is not yet conclusive on whether legalization has increased impaired driving. Garcia said the pilot program’s goal is to gather better, more conclusive data.

“This is a new entity in the state of Colorado, and the attorney general is here to support and assist not only our citizens, but our law enforcement in making sure our roads are safe,” Hudson said.

The program was authorized and funded by the marijuana task force, which is made up of law enforcement and government officials across the state.

The devices range in capabilities, with some resembling a pregnancy test and others as big as a toaster, said Glenn Davis, Colorado State Patrol highway safety manager.

For now, the devices are a voluntary experiment put into action only after a suspect is arrested and blood is tested — the current standard procedure for testing THC in a driver’s bloodstream — and can’t be used to influence the officer’s decision to make an arrest.

But the results are discoverable by the defense in court, meaning they could come up in a suspect’s DUI case.

So far, none have, Garcia said, because DUI cases can take up to a year or more to process. None of the 82 volunteers who have agreed to participate in the marijuana testing from March to mid-December have had their court cases completed, Garcia said.

“I don’t know what the courts are going to say yet,” he said.

Garcia said it’s too early to tell whether the devices are performing well.

“I don’t want to make a judgment call on such a limited amount of data,” he said. “I think that it’s very successful in regard to researching and determining what we can do to stop impaired drivers on the roadway. We can tell, so far, they seem to be working as designed by the company, but whether or not the results are usable in a court of law is yet to be determined.”

The State Patrol expressed reservations about releasing specifics of the program.

Garcia would not disclose the companies or devices the troopers are using. He also declined to allow a trooper who uses the devices in the field to comment, saying he did not want information to be released prematurely while the study was going on.

“I’m confident that any trooper in the agency is always hoping the technology will be able to help them do their job in a more efficient manner,” he said.

Marijuana DUI devices get test drive from Colorado State Patrol
Colorado State Trooper Ron Krasnisky shows the department’s oral fluid drug screen testing device, which will be used during a pilot program. The system uses saliva to test impaired drivers for marijuana and other drugs. (Kathryn Scott Osler, The Denver Post)

Jay Tiftickjian, a prominent Denver DUI attorney, said the patrol’s reserve was not a surprise.

“Whenever there’s a new device they want to test, there’s a certification process it has to go through,” Tiftickjian said. “The more that us attorneys know about it, the easier it is to attack it.”

Tiftickjian thought the saliva-testing was the next logical step law enforcement would take in cracking down on high drivers.

“I think any time testing is accurate and can be transparent, that’s always a good thing,” he said. “Saliva, just like blood, is very accurate if done right.”

However, he wondered who would volunteer to be a part of the program. None of his clients have mentioned the optional test, he said.

“If anything is voluntary, and if it’s not something that could be in their favor, then why would they expose themselves to that?” he said. “If anybody asked me if they should, I would obviously tell them not to.”

The State Patrol wants to collect at least two years of data before picking the best device — or deciding none is up to snuff.

“I don’t know if we’re going to decide on one, three or none,” Garcia said.

Once a decision is made, CSP will make a formal recommendation to all Colorado law enforcement.

Troopers are judging the devices on ease of use, officer safety, accuracy, cost and other things.

The results of the study will be published so other law enforcement agencies can evaluate what might work for their departments.

Davis thinks the devices are a step in the right direction but worries the new equipment is not advanced enough to be reliable.

“I just don’t feel like they’re perfected enough to use all the time,” he said. “I think we have a responsibility to look at this technology, but I don’t want law enforcement relying on devices that take the place of old-fashioned investigative skills.”

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