Suffolk police using saliva-testing kits to check drivers for marijuana and other drugs

Suffolk County police are using a new drug-testing kit to determine whether drivers may be impaired by cannabis and other drugs.

Police are using three of the saliva-testing kits, known as SoToxa, in a pilot program to test drivers with a swab to determine the recent use of marijuana, opioids, cocaine, methamphetamine and opiates.

"It's everywhere around the roads. ... I think that makes people nervous, and it should, because that means that there are people out there in their cars smoking marijuana, and therefore, very likely impaired," Suffolk Police Commissioner Kevin Catalina said on Wednesday. "Our ability to determine that is hampered by the fact that there is no legal level of marijuana intoxication or impairment, so until that's established, it's very difficult for police in general to make an arrest in case like that."

Suffolk County is one of the first downstate departments to use the technology.

The police department has been training its highway officers to use the swab kits, which can give an indication of "recent use" of certain drugs within about 10 minutes. Police can then call a trained drug recognition expert to determine if a driver is impaired in order to make an arrest.

Police said the test  is voluntary, and unlike a drunken-driving arrest, rejecting a test without a warrant does not lead to an automatic driver’s license suspension.

Law enforcement, including Suffolk County officials and district attorney officials, gathered on Wednesday at the Gershow metal recycling plant in Medford to demonstrate the seizure of vehicles of impaired drivers by crushing a 2004 BMW that was involved in a police pursuit.

Catalina and district attorney officials said the new saliva test would help identify impaired drivers and the department would explore buying more testing kits.

Nassau County police said they were testing the saliva kits, but they were not deployed with officers.

Defense attorneys have argued against the saliva tests, contending the roadside tests are not admissible in court until they are confirmed by a lab or with a blood test.

Garden City attorney Steven Epstein said the swab testing could lead to false positive and false negatives and may not give an accurate reading of drugs in a person’s system or how recently they may have used drugs such as THC in marijuana.

He said testing immediately after marijuana use may not show levels of THC in saliva when a person is high, but could appear several hours later after the impaired effect wears off.

"if you look at all of the research studies that have been done, there's no nexus, there's no connection between the quantity of marijuana in the person's system and what's measured by a device, and the impairment of their ability to drive," Epstein said.

Epstein argued impaired driving should be judged based on someone’s driving at slow speeds and interaction with police, including responsiveness and the smell of marijuana.

The Suffolk district attorney’s office called on state legislators to pass a provision in the state budget known as the Deadly Driving Bill. It would expand the number of drugs that could be prosecuted under impaired driving laws.

Catalina said there is  no standard to determine the level of impairment with marijauna, such as the 0.08% blood alcohol content limit for alcohol. The issue has increased since cannabis was legalized recreationally, he said.

"There is no determination as to what legal impairment would be with marijuana," Catalina said. "It is all subjective and based on a drug recognition expert's testimony as to the level of impairment in that individual. Blood tests can determine more specifically how much or what level of intoxication somebody is, but those tests are extremely intrusive and require warrants."