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edition CAREERS special Page 12 O PINION June 20, 2018 Opinion articles do not necessarily represent the views of the Portland Observer. We welcome reader essays, photos and story ideas. Submit to news@portlandobserver.com. The Trouble with Roadside Saliva Tests: Proposals damage civil liberties C hloé W hite In the wake of marijuana le- galization, many states are looking for new ways to keep impaired drivers off the road. Unfortunately, some proposals would lead to problematic and possibly unconstitutional police practices. One such idea is war- rantless roadside saliva testing. During a roadside saliva test, a police officer takes a saliva sam- ple from a driver’s mouth and inserts the sample into a machine that at least theoretically can de- tect whether any amount of cer- tain controlled substances — legal by or illegal — is in the driver’s sys- tem. Yuck factor aside, there are several problems with this. First, at best, these tests merely detect the presence of drugs in a person’s system. Un- like breathalyzers, they say nothing about actual impair- ment at the time of testing. As such, the use of saliva tests could result in the de- tention of someone who has any detectable amount of sub- stance in their body — again, le- gal or illegal — even though this adds nothing to the determination of whether that person is an im- paired driver. Second, these tests pose seri- ous due process and equal protec- tion concerns. Roadside stops are considered seizures under the Fourth Amend- ment, and many factors contrib- ute to whether or not a given sei- zure is legitimate. Because these warrantless tests will be positive for commonly prescribed medi- cations, such as anti-depressants and pain management medicines, they will undoubtedly result in longer seizures and interroga- tions of drivers with disabilities who lawfully take the tested-for, doctor-prescribed medicines than those who do not. This is the essence of disparate and unequal treatment — people with any presence of those par- ticular drugs in their system are always going to be seized for a longer time, no matter their actu- al impairment. And from a racial justice standpoint, in a country where people of color are dis- proportionately stopped and searched by police, we can expect that they will also be subjected to this test more frequently than white drivers. Saliva testing also raises sub- stantial issues regarding personal dignity and privacy. A saliva test on the side of the road is much more invasive of privacy and bodily integrity than a breatha- lyzer test due to the physical re- moval of oral fluids and DNA. People’s privacy should not be invaded by a warrantless test that has no relation to actual impair- ment and road safety. Finally, and perhaps most im- portantly, according to the Na- tional Highway Traffic Safety Administration, it has not yet been clearly established that saliva test devices are even accurate or reli- able. States should not be relying on or investing money in technol- ogy that has not been absolutely proven to be accurate, especially when they jeopardize some of our most fundamental liberties. Early indications are that at least some lawmakers are aware of the problems with roadside sa- liva testing. Senators in Vermont recently defeated a bill that would have allowed police to conduct these warrantless oral fluids tests. Other states, however, are begin- ning or are considering pilot pro- grams of these tests on their roads and highways, including Califor- nia, Michigan, Colorado, Kansas, and Illinois. Improving road safety is an important goal, but these warrant- less tests do nothing to advance that goal while creating multiple civil liberties concerns. Drivers should not have to sacrifice their constitutional and civil rights for a roadside saliva test that is inva- sive, ineffective, and unreliable. And let’s face it, it’s also pretty gross. Chloé White is the policy direc- tor of the ACLU of Vermont. Challenging Trump’s Excesses in the Courtroom Long Live the Litigators M artha b urk Shortly after Donald Trump was awarded the presidency by our perverted and an- tiquated electoral system, I got des- perate calls from some normal- ly non-political family mem- bers and friends. They wanted to know what they could do to counter the governing debacle they knew would come. Most asked where they could give money. by I had only one answer: “Give to the litigators.” While think tanks and pol- icy shops are also a much-needed resource in a democracy, groups that directly challenge the government in court can sometimes stop the worst excesses — or at least slow them down until a re- gime change. My list was short, but in- cluded groups active in areas I thought were most threatened. I recommended the ACLU, Planned Parenthood, the Human Rights Campaign, Earth Justice, the Mexican American Legal Defense Fund (MALDEF), and the NAACP as some of the most likely to tackle the coming chal- lenges not only to established law, but to common sense and decency. Like most folks, I like to be right. But this time there was no joy when those challenges arrived like a barrage of incom- ing missiles from multiple direc- tions. The Trump administration’s move to block funding to glob- al groups that provide any sort of abortion counseling — often including contraception — came only three days after Trump’s in- auguration. Dismantling regulations on other fronts was no less drastic. In his first year alone, Trump overturned 33 environmental regulations ranging from deci- sions on the Keystone XL and Dakota Access pipelines to mi- gratory bird protections, and 24 more were on the chopping block. The Muslim travel ban, the ban on transgender individuals serving in the military, and end- ing DACA were just the most prominent of the dozens of other rollbacks that came almost daily and have never let up. But I was also right on anoth- er front, and on that I can take heart. Litigators quickly stepped up to delay — and maybe even- tually end — the abuses. Human rights and immigra- tion groups jumped in imme- diately when Trump issued his travel ban, even showing up at airports to aid stranded immi- grants. They were successful in stopping the worst excesses and delaying a much watered-down partial ban for several months. Even as the partial ban took ef- fect they pressed on, and if the Supreme Court ultimately over- turns it, it will be thanks to them. Environmental groups have so far stalled Trump’s planned pipeline building, and predict their lawsuits will delay it until he is out of office, and possibly forever. Similarly, advocates for gender justice quickly filed suit when Trump announced the transgender ban, and they be- lieve it will be overturned per- manently in the next few months. And DACA defenders including MALDEF, the NAACP, and attorneys general from sever- al states continue to block the Trump administration’s attempt to kill the program. The administration’s latest attack on reproductive rights comes in the realm of federal support for family planning ser- vices and other preventive health care for low-income, under-in- sured, and uninsured individu- als. New guidelines will support groups that advocate the risky “rhythm method” and the dis- credited “abstinence only” ed- ucation over more conventional and effective contraception. It’s widely seen as anoth- er backdoor attempt to defund Planned Parenthood, a major provider of sex education and birth control nationwide. So Planned Parenthood and the ACLU have filed suit to stop im- plementation. On balance, all of this is heart- ening progress given the consid- erable challenges of dealing with an unpredictable and malicious head of state. At least until vot- ers engineer a regime change. Martha Burk is the director of the Corporate Accountability Project for the National Coun- cil of Women’s Organizations (NCWO) and the author of the book Your Voice, Your Vote. Dis- tributed by OtherWords.org.