Michigan’s intoxicated driving laws cover intoxication by alcohol and all impairing drugs. Reliably detecting intoxication by drugs is more challenging for law enforcement than detecting intoxication caused by alcohol. One reason for this is that there is no roadside drug test that can help officers in the field determine the cause of impairment, and to distinguish drug-induced impairment from that caused from more benign causes such as sleep deprivation or certain medical conditions.
It is well-established for example, that alcohol can cause nystagmus, which is a jerking of the eye as it moves across a horizontal plane. Because of this correlation, the horizontal gaze nystagmus test, which looks for this jerking in the eye, is one of the three standardized field sobriety tests. This alcohol inducted jerking is easy to detect, and police officers around the country can testify in court about their observations during the HGN provided it the test is properly administered. The HGN is also part of the 12-step drug recognition protocol because some drugs other than alcohol can also cause nystagmus. However, a limitation for both prosecutors and defense attorneys is that police patrol vehicle video recording equipment is not able to record the nystagmus that officers ostensibly observe.
A novel solution to this need for a reliable roadside test for drugs, and the limitations of no HGN recording, has been developed and involves recording and analyzing the movement of a person’s eyes. This technology is currently undergoing a new round of funding and Michigan drivers may be subjected to it in the near future. As of the date of this article this technology is being used in Colorado, California, and Tennessee.
The company behind this technology was founded by a retired police Sargent who was also involved in the development of the Drug Recognition Program (DRE) in the early 1970s. Much has been written previously about the dangers and problems with the DRE program, which has been subjected to much criticism from defense attorneys.
Aside from the general issues with the reliability relative to the limited science behind the HGN and the DRE, there will also be the issue of admissibility. In Michigan, for example, the roadside breath test is not typically admissible at trial. If the technology makes it to Michigan, admissibility of the technology is likely to be the first battle, and it remains to be seen if the technology will eventually become a ubiquitous part of the intoxicated driving investigation.