Westmoreland describes new state law targeting reckless drivers
Milwaukee Alderman Lamont Westmoreland, flanked by Common Council colleagues and Milwaukee Police Department Assistant Chief Craig Sarnow, discusses a pending state law that will allow police to crack down on reckless drivers.
- A state law signed in March allows police to test a driver’s saliva for meth, cocaine, delta-9 THC and more if they suspect an OWI.
- No police departments appear to be adopting the test right away, but several expressed interest depending on funding and resources.
- Other states have similar programs, and the Dane and Manitowoc sheriff’s departments ran successful pilot programs in recent years.
A new state law allows police who suspect drugged driving to perform a rapid roadside test of the driver’s saliva to check for THC, opioids, meth and more, though police departments don’t appear ready to roll it out immediately.
State law already allows police to use breathalyzers to check blood-alcohol levels, but those devices don’t test for other intoxicating substances. The new law allows police to sample oral fluids – mainly saliva – when they suspect an OWI.
Law enforcement groups that advocated for the law change say drug impairment is more difficult to identify than alcohol intoxication. Plus, intoxication levels can decrease between the time police make a traffic stop and a blood sample is collected.
“Oral fluid screening would give officers an additional, objective tool to confirm the presence of drugs – much like a preliminary breath test does for alcohol – before making an arrest decision,” Dane County Sheriff Kalvin Barrett said at a December public hearing.
Wisconsin Act 99 became effective March 15, two days after Democratic Gov. Tony Evers signed it into law. The state Legislature passed it in February with bipartisan support.
Here’s what to know about the new law:
What does the law allow police to do when they suspect an impaired driver?
If police have probable cause to believe a driver is intoxicated, the officer can request a saliva or breath test, or both. That’s in addition to field sobriety tests.
The officer places a mouth swab inside the driver’s cheek or under the tongue and runs it through a handheld device, such as Abbott’s SoToxa or Alere DDS2.
The legislation was amended to allow the tests for suspected intoxicated operation of vehicles other than cars, such as boats, snowmobiles, ATVs, UTVs and more.
Are the oral drug tests admissible in court?
No. The test results aren’t admissible in court and must be destroyed or returned to the person after the test is completed.
The preliminary tests are used only to help police decide whether to make an arrest and pursue laboratory confirmation testing.
Have police in Wisconsin tried saliva drug tests before?
Yes. The Dane County and Manitowoc County sheriff’s offices piloted the program in 2016 and 2019, finding that oral fluid testing devices were accurate and consistent with blood tests.
Dane County conducted its study with the State Laboratory of Hygiene and published the results in an academic journal. The study found that 64% of participants arrested for an OWI also had one or more drugs in their blood, with THC the most common.
Manitowoc County worked with the State Laboratory of Hygiene and the Wisconsin State Patrol on its study, which collected 100 voluntary samples. Results showed 41% of OWI offenders were positive for THC, 20% for amphetamine and 14% for methamphetamine.
Which police agencies plan to use the new saliva drug test?
Wisconsin Chiefs of Police Association President Danny Thompson said he wasn’t aware of any agencies immediately using the test.
“Although this roadside test will be very beneficial to arresting dangerous, impaired drivers, we have not heard of any agencies ready to implement this kind of testing right away,” Thompson said in a statement to the Milwaukee Journal Sentinel.
A Milwaukee Police Department spokesperson said the department isn’t using the tests “at this time and are still looking into it.” A Milwaukee County Sheriff’s Office spokesperson didn’t respond to a request for comment.
The two departments that piloted the program also don’t plan to bring it back right away.
Manitowoc County Sheriff Daniel Hartwig said his office is monitoring guidance related to the new law but doesn’t have plans to implement it at this point. A Dane County Sheriff’s Office spokesperson said the county would use it “given the appropriate funding and resources.”
How much would the program cost?
Each SoToxa device appears to cost around $4,500 to $5,000, according to news reports on programs in North Dakota and San Diego.
Law enforcement groups said agencies in Wisconsin would likely pursue funding for the devices through federal grants.
Do other states use saliva screening?
Yes. A state-by-state analysis from the National Alliance to Stop Impaired Driving shows 10 states have statewide roadside oral fluid testing programs, and another eight have the program in some jurisdictions.
A 2021 report from the National Conference of State Legislatures found nearly half of states have the law, but few used it. One that does is Indiana, where over 200 handheld test devices are used across 110 law enforcement agencies.
Who authored and supported the law?
The bill was authored by Republicans, including Sen. Jesse James from Thorp and Rep. Barbara Dittrich from Oconomowoc. Several Democrats became cosponsors, including Rep. Lori Palmeri from Oshkosh and Rep. Ryan Spaude from Ashwaubenon.
Supporters of the bill included AAA Wisconsin, the Milwaukee Police Association, the Wisconsin Chiefs of Police Association and Mothers Against Drunk Driving. No groups registered in opposition to the bill.
What qualifies as operating while intoxicated in Wisconsin?
According to the Wisconsin Department of Transportation and state law, a driver is considered to be operating while intoxicated if:
- The driver is under the influence of an intoxicant, controlled substance or other drug that impairs their ability to safely operate a vehicle, even if the vehicle isn’t in motion at the time of the traffic stop.
- The driver has a detectable amount of a restricted controlled substance in their blood. That includes cocaine, heroin, meth, delta-9 THC (if at a concentration of one or more nanograms per milliliter in a person’s blood) and more.
- The driver has a BAC over what the law allows, such as above 0.08 for first-time offenders, 0.04 for commercial drivers or 0.02 for drivers with three or more prior OWIs.
Hope Karnopp can be reached at HKarnopp@usatodayco.com.
