edition
CAREERS special
Page 12
O PINION
June 20, 2018
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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.