New Ohio DUI/OVI Regulations Authorize Oral Fluid Testing


In November of 2022, an article in this blog reported the state of Ohio intends to use oral fluid testing in the future.  The future is here.  When NBC4 reported on the Traffic Safety Council’s recommendation of oral fluid testing for DUI cases (called ‘OVI’ in Ohio), the Ohio Department of Health had already passed new regulations which add oral fluid to the bodily substances which may be tested.  Those regulations became effective on January 23, 2023.

Ohio Regulations for Alcohol/Drug Tests
The Ohio regulations on testing bodily substances for alcohol and drugs are created by the Ohio Department of Health.  Those rules are found in Ohio Administrative Code (OAC) Chapter 3701-53.  Chapter 3701-53 regulates what bodily substances may be tested and how the tests are to be administered.  That chapter also provides regulations for laboratories, equipment, and personnel.

Oral Fluid in the New Regulations
The new regulations clear the way for oral fluid testing.  The rules now say tests for alcohol and drugs may be applied to blood, breath, urine, or “other bodily substances, including oral fluid.”  The new regulations also provide that test results may be expressed in terms of “the presence of a drug of abuse, controlled substance, or other impairing substance in oral fluid”.  With the regulations in place, we can expect law enforcement agencies will soon begin implementing oral fluid testing.

What to Expect with Oral Fluid Testing
When a law enforcement officer stops a driver and has probable cause to believe the driver is under the influence, the officer may ask the driver to provide an oral fluid sample.  If the driver consents, the officer obtains the sample by swabbing the driver’s mouth with a collection swab or sample strip.  The officer then inserts the collection swab or sample strip into a testing instrument.

The testing instrument uses an immunoassay testing method to analyze whether the oral fluid sample contains drugs or other impairing substances.  The results of the test may be used by the officer in making an arrest decision and may also be used in court as evidence the driver was under the influence.

Problems with Oral Fluid Testing-Generally
Oral fluid testing kits use immunoassay testing, and the forensic community generally agrees immunoassay tests are not reliable enough to be used in court.  In a 2017 Report to Congress, the National Highway Traffic Safety Administration said this about immunoassay testing:

However, a positive screening test cannot be taken as evidence that the drug is present in the specimen, as these tests lack high specificity, are subject to cross-reactivity, and may on occasion produce a false positive result.

Regarding oral fluid testing, the NHTSA report states:

The technology to rapidly, accurately and reliably collect oral fluid at the point of arrest is quickly evolving. Some companies market self-contained test kits that can be used by law enforcement; however, these point-of-arrest screening devices have not been shown to be completely accurate and reliable.

One year after the 2017 NHTSA report, oral fluid testing was the subject of a joint study conducted by the Oslo University Hospital and the Norwegian Mobile Police Service.  The study compared results of oral fluid testing to results of blood tests.  According to that study, the oral fluid testing produced false positive results for 65.9% of the samples identified to contain opiates and 87.1% for cocaine.

Problems with Oral Fluid Testing-THC
The drug most commonly involved in Ohio OVI cases is THC.  When it comes to testing for THC, oral fluid analysis is especially problematic.  When marijuana is smoked, THC is directly distributed to oral fluid in the oral cavity.  THC in a person’s oral fluid is not impairing the person:  the THC must be in the person’s blood to reach receptors in the brain and have an impairing effect.

Studies have proven the level of THC in a person’s oral fluid has no correlation with the level of THC in a person’s blood.  In addition, a driver may have THC in their oral fluid as a result of second-hand smoke.  Therefore, test results showing THC in a person’s oral fluid are irrelevant to whether a person is under the influence of THC.

Ineffective Strategy
By enacting the new regulations, the state of Ohio intended to improve enforcement of drugged driving laws.  Authorizing the use of oral fluid testing, however, was not the best strategy for carrying-out that intention.

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