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Can I Refuse a Mouth Swab Test for a California DUI?

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Can I Refuse a Mouth Swab Test for a California DUI?

Most drivers are familiar with breath tests and DUI blood tests to determine blood alcohol concentration (BAC) for DUI charges. They may be surprised if a police officer asks them to take a mouth swab test (MST) at a DUI stop instead of a breathalyzer test. Knowing your rights regarding mouth swab tests can help you protect your rights if a law enforcement officer stops you for drunk driving in California. Call a Los Angeles DUI attorney for a free consultation if you are arrested for DUI.

“Mouth Swab Tests” in California DUI Cases

California’s DUI laws make it illegal to operate a motor vehicle under the influence of drugs, including marijuana. Law enforcement officers use MSTs at DUI stops to determine if a person is driving under the influence of drugs (DUID). The MST is a field sobriety test to help the officer establish probable cause for a DUI arrest. A mouth swab test is also known as a cheek swab test.

Why Is the MST Used Instead of a Breath Test at a DUI Stop?

Breath tests cannot detect the presence of marijuana or other drugs in a person’s system. A blood test is the only way to determine whether a person has marijuana or another drug in their system. Therefore, during a traffic stop, the police officer uses the MST instead of a breath test as a preliminary assessment to determine if the driver may have been using drugs before or while driving a motor vehicle.

What Is a Mouth Swab Test?

The MST requires the officer to take a sample of the person’s oral fluid to perform the test. First, a swab is used to rub along the person’s cheek to obtain the sample. Typically, the officer gives the person a mouth swab and directs the person to rub the swab along the inside of their mouth for a few minutes. Then, the police officer tests the swab for the presence of drugs.

Most law enforcement agencies in California use the Dräger Drug Test 5000 to analyze mouth swabs at a DUI stop for seven drugs. The officer places the sample inside the machine and adds a vial of the testing solution. Within several minutes, the device returns a positive or negative result.

What Does a Mouth Swab Test Specifically Detect?

A mouth swab test detects the presence of one of seven specific drugs in a driver’s system. However, the MST does not determine the level of drugs in the person’s system. The seven different drugs a mouth swab test detects are:

  • Marijuana;
  • Amphetamine;
  • Opiates;
  • Methadone;
  • Methamphetamine; and

Many drivers fear that if they used marijuana in the past few days, an MST at a traffic stop might result in a DUID arrest. However, the MST detects active THC or delta-9 THC in the person’s system. Active THC only remains in a person’s system for a few hours. The MST machine is not designed to detect inactive THC compounds in a driver’s system.

It is important to note that MSTs used by law enforcement agencies does not determine how much of the drugs are in your system. The cheek swab test only tells the officer that drugs are present in the driver’s system. Therefore, a person could have a small amount of drugs in their system and test positive, but the level of drugs might not impair their driving ability. An MST result can be used to arrest someone the police officer suspects of drunk driving, but might not have sufficient evidence for probable cause without the MST result.

It is crucial to contact a California DUI attorney for a free consultation as soon as possible after being arrested for drugged driving. A DUI lawyer can help you fight DUID charges. An experienced lawyer in Los Angeles analyzes DUI cases to determine the best defense strategy to use against DUID charges.

Can You Be Required to Take a Mouth Swab Test?

As with other types of preliminary alcohol assessment (PAS) tests, including a breath test, a driver over the age of 21 years and not on probation can refuse to take a mouth swab test after being stopped for DUI without penalty. The police officer cannot require you to take a check swab test as part of their DUI investigation.

What Happens if I Refuse a Mouth Swab Test?

If you are over the age of 21 years, there is no penalty for refusing a mouth swab test. However, suppose you are under 21 years old or currently on probation and refuse a cheek swab test. In that case, the California Department of Motor Vehicles (DMV) could administratively suspend your driver’s license. You have just 10 days to request an Administrative License Suspension (ALS) or DMV hearing. If you do not request a hearing, your driver’s license is suspended for refusing a test.

What Happens if There Is a Positive/Negative Result?

Generally, a police officer arrests drivers with positive results. The officer uses the positive result as evidence of probable cause for a DUID arrest. The police officer requires a blood test to confirm that you have drugs in your system. Refusing to provide a blood sample after a lawful DUI arrest violates California’s implied consent law (California Vehicle Code §23612). If you refuse a blood test after a DUI arrest, the DMV suspends your driver’s license. Also, the police officer can obtain a warrant for a forced blood draw.

If the mouth swab test is negative, the police officer may still arrest you for driving under the influence of drugs. Police officers rely on various subjective signs that a person is under the influence of drugs. Some of those signs include:

  • The odor of marijuana or other drugs;
  • The presence of drug paraphernalia;
  • Engaging in unsafe driving behavior;
  • Bloodshot eyes;
  • Lack of coordination;
  • Inability to focus or concentrate; and
  • Statements made by the driver or witnesses.

A police officer may call for a drug recognition expert (DRE) to conduct the DUI investigation if the officer suspects the driver is impaired by drugs. A DRE has specialized training to help them recognize when a person is using drugs.

Even though the results of your MST were negative, the officer may arrest you for DUID if he has sufficient evidence to support probable cause or reasonable suspicion.

Can You Request a Breath or Blood Test Instead of MST in California?

Generally, when a police officer arrests a driver for DUI, the driver is given a choice between a breath or blood test. However, if the officer has a clear indication that you are under the influence of drugs, he can require a blood test instead of a breath test. A clear indication could be based on a positive MST, physical evidence of drug use, objective symptoms of drug intoxication, and the statements you made during your DUI stop. If you refuse to take a blood test, the officer can obtain a warrant for a blood draw.

Driving Under The Influence: How Your Blood Alcohol Concentration Affects Your Case

California Vehicle Code §23152 makes it illegal for a person to operate a motor vehicle with a blood alcohol concentration (BAC) above the legal limit. The limit for most drivers is .08% or higher. However, the BAC limit for operating a commercial motor vehicle or a vehicle with a passenger for hire is .04% or higher. In addition, drivers under the age of 21 years and drivers on probation cannot have any measurable amount of alcohol in their system while operating a motor vehicle.

Being arrested for DUI per se means you have a BAC level above the legal limit. However, you can be arrested for drunk driving even though your BAC is below the lawful limit. CVC §23152 also makes it illegal to drive while under the influence of alcohol. Being “under the influence” means that the alcohol in your system impairs your ability to operate a vehicle in a safe manner. Therefore, you could be convicted of DUI if the prosecutor can prove you were driving while impaired, even though your BAC was below the limit.

Does California Have a “Legal Limit” for Drugs and Driving?

There is no legal limit for drug-impaired driving or DUID. However, CVC §23152(c) makes it illegal to drive a vehicle while addicted to the use of drugs. The code also makes it illegal to drive while under the influence of any drug or a combination of drugs and alcohol.

Experts cannot agree upon the level of drugs in a person’s system that makes them too impaired to operate a motor vehicle. Therefore, California drugged driving laws merely state that it is illegal for someone to drive “under the influence” of drugs. That permits officers to arrest drivers who display signs of drug impairment and prosecutors to pursue convictions without proving the person had a specific amount of drugs in their system.

What Are the Penalties for Driving Under the Influence of Drugs?

DUID has serious consequences. The penalties are the same as the penalties for DUI in California. Typically, DUID is a misdemeanor offense. The penalties for a first-time misdemeanor DUID include:

  • Potential jail time;
  • Fines and assessments that could total more than $1,000;
  • Three to five years of DUI probation;
  • Driver’s license suspension;
  • Attending DUI school; and
  • Installation of an ignition interlock device (“IID”).

However, the prosecutor could charge a driver with felony DUID if the driver has a prior felony DUI conviction, three or more prior DUI convictions within 10 years, or the DUID caused injury or death. Felony DUID could result in three to four years in prison and fines up to $5,000. The penalties for DUID depend on the circumstances of your case and your prior criminal record.

Contact a Los Angeles DUI attorney to discuss ways you can fight charges of drugged driving. During a free consultation DUI attorney, you can learn about DUI defenses, plea bargains, and the best way to fight the DUID charges you face.

Talk To A DUI Defense Attorney

An experienced attorney can evaluate your case and discuss your options with you. A lawyer serving DUI clients will often offer a free no obligation consultation and everything discussed is protected by the attorney client relationship.

Schedule a free consultation with one of our expert California DUI attorneys here.

Interested in this topic, or other topics similar to it? Find more articles on our blog, updated regularly! 

Sources:

https://www.draeger.com/en-us_us/Products/DrugTest-5000

https://www.dmv.ca.gov/portal/driver-education-and-safety/dmv-safety-guidelines-actions/driving-under-the-influence/

https://leginfo.legislature.ca.gov/faces/codes_displaySection.xhtml?lawCode=VEH&sectionNum=23612 https://www.chp.ca.gov/programs-services/for-law-enforcement/drug-recognition-evaluator-program/schedule-of-classes/dre

https://leginfo.legislature.ca.gov/faces/codes_displaySection.xhtml?lawCode=VEH&sectionNum=23152.

https://www.nhtsa.gov/sites/nhtsa.gov/files/documents/811268.pdf

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