Columbus DUI Lawyer: Breath Analysis Device to Detect Drugs on Drivers Not Ready for Primetime, Columbus PD Should Reject Any Overture to Use

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Some companies are currently marketing devices to law enforcement that work like a Breathalyzer and to be used by police to detect drugs in the system of drivers for DUI prosecution. Columbus DUI attorney Brian Joslyn said that tests show the device is not ready to be used for evidentiary purposes, and called on the Columbus Police Department and other Ohio agencies to reject its usage.

These devices have been studied and have shown a high propensity for false positives. Using them would likely land many innocent people in jail.

There's a new product on the market for testing the breath of drivers for illegal drugs.Some companies have begun marketing devices to law enforcement agencies that work like Breathalyzers and are capable of detecting multiple narcotics. However, the devices are clearly not ready to meet evidentiary standards, and Columbus and Ohio law enforcement agencies should reject any overtures to being, said Columbus DUI attorney Brian Joslyn.

"These devices have been studied and have shown a high propensity for false positives," Joslyn said. "Using them would likely land many innocent people in jail."

The devices are able to detect amphetamines, methamphetamines, morphine, 6-AM (a metabolite in heroin), THC (a metabolite in marijuana), cocaine, diazepam (Xanax) and other narcotics in the breath of the subject. The devices test microparticles in the breath that contains every of narcotics in the system. Currently, the sample must be sent to a lab to analyze.

The device is being heralded in the press, as having the potential to eventually be carried by police officers . Smithsonian.com says that once a few scientific hurdles are cleared, "roadside tests could become a routine part of law enforcement protocol" ("Cops Could Soon Use Breathalyzers to Test for Illegal Drugs," April 26, 2013).

Some companies, though, are currently advertising the device as "legal defendable" if the sample is sent to an accredited lab.

Currently, Columbus prosecutors can only test for drugs in the urine or blood. Ohio has specific guidelines for DUI with drugs charges for amounts of drugs that can be in the urine or blood. If the person has at or above the following amounts of the specific controlled substance in their urine or blood, they may face OVI with :

  •     For amphetamines or meth, 500 nanograms in the urine or 100 nanograms in the blood;
  •     For cocaine, 150 nanograms in the urine or 50 nanograms in the blood;
  •     For heroin, 150 nanograms in the urine or 50 nanograms in the blood;
  •     For LSD, 25 nanograms in the urine or 10 nanograms in the blood; and
  •     For marijuana, 10 nanograms in the urine or two nanograms in the blood.

The guidelines are statutory. There is no current guideline for breath tests. However, these are the amounts for when a person is intoxicated per se, meaning he or she is assumed, under law, to be under the influence. The law also provides that any person "under the influence" can be charged, a much more subjective terminology, Joslyn said.

However, Columbus law enforcement should reject use of such devices due to current flaws, Joslyn said. In a study published in the Journal of Breath Research April 25, one of the devices was tested for accuracy, studying the device's results in 47 patients at a drug emergency clinic ("Detection of drugs of abuse in exhaled breath using a device for rapid collection: comparison with plasma, urine and self-reporting in 47 drug users," April 25, 2013) .

The device was able to detect drugs in the system of 40 of the patients — however, 23 percent of the time, it reported finding a narcotic the patient has not taken.

"That is a tremendous number of false positives," Joslyn said. "If police here were to start using the one of these devices, nearly one-quarter of those charged with Columbus drugged DUI may have plainly inaccurate evidence against them. There's no way any so-called scientific evidence so faulty should ever be admissible."

In addition to the specific problems with the device, there are general issues with breathalyzer tests, Joslyn said.

"Breath analysis tests have numerous faults, from human error in procedures, like proper cleaning, to mechanical errors in the specific devices," Joslyn said. "Ohio should not expand its breath test policy."

Brian Joslyn, of the Joslyn Law Firm, is a Columbus DUI defense lawyer who represents those charged with drunk driving and drugged driving throughout Central Ohio, including Columbus, Dublin, Westerville and other cities.

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