THC, DNA and The Use of Oral Swabs

The swabbing of the oral tissues is currently voluntary

The DUI checkpoints that have long been used by southern California law enforcement agencies have added a new technology in their efforts to detect drivers suspected of being under the influence. In this case, under the influence of THC, the active ingredient in marijuana. Utilizing a portable drug test that will detect THC, as well as other street and prescription drugs, drivers stopped and suspected of being are under the influence of drugs will be asked to voluntarily consent to a swab of their cheek and gum line. Because the swabbing of the oral tissues is currently voluntary, the legal implications of this testing have yet to be determined.

Currently, this testing is financed by a state grant of $520,000 that was considered justified because of a generally recognized increase in the use of medical marijuana. This line of reasoning was evident when Los Angeles City Attorney Mike Feuer suggested, "There's a growing recognition that driving under the influence of drugs is something we need to be clamping down on more effectively."

This new found ability of law enforcement to collect saliva for purportedly determining drug use would appear to be the perfect pretext for gathering DNA samples for any other purpose that may be of interest to law enforcement.

The Supreme Court's stamp of approval

A narrowly divided Supreme Court has already sanctioned this practice by ruling that police officers can take DNA swabs after arrests. Justice Anthony Kennedy likened the use of oral swabs to be, "like fingerprinting and photographing, a legitimate police booking procedure that is reasonable under the Fourth Amendment." It well may be that the now voluntary oral swabs being implemented at DUI checkpoints may just be the start of mandatory DNA testing in the near future, having received the Supreme Court's stamp of approval.

Public radio (KPCC) reports that limited distribution of oral swab drug test kits have been made to some LAPD DUI checkpoints as well as a few police stations.

City prosecutors have not used results from the test as evidence in any case even though they have used the test multiple times. According to the city attorney's office, none of the swab results have been introduced in court because the defendants pled out before the cases went to trial.

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