Ohio bill would allow impaired driving test for marijuana, but does it work?

COLUMBUS, Ohio ( WCMH ) — Law enforcement could get a new test to check for high drivers with a pending Ohio bill, but challengers are raising questions about its accuracy.

Republican Reps. D.J. Swearingen and Cindy Abrams introduced House Bill 230 in June 2023. After slowly making its way through a committee, the bill passed in the House 79-13 in April. The bill includes several measures adding or increasing penalties for human and drug trafficking, focusing on methamphetamine and fentanyl.

Before the bill passed, however, it picked up an amendment that would add a tool for police investigating possible impaired driving. HB 230’s addition gives law enforcement officers the ability to conduct oral fluid tests on drivers suspected of being under the influence of “alcohol, drugs of abuse, or a combination of them.”

Movement on the bill comes as rollout of recreationa l marijuana sales looms in Ohio. Cannabis does fall under “drugs of abuse” as defined in the Ohio Revised Code, and Abrams told NBC4 that in this case, the bill applies.

“While our law enforcement will benefit from the use of oral fluid testing with recreational marijuana being legalized, it’s inclusion in this bill was not solely as a response to the passing of Issue 2 in November of 2023,” Abrams said.

Attorney Paula Savchenko, who works at licensing firm Cannacore Group and regulated substance specialist PS Law Group, saw a similar rollout of oral fluid tests in Canada after the country legalized marijuana.

“I know that in Ontario, they are using these types of breathalyzers to determine if drivers are under the influence of cannabis,” Savchenko said. “Some of the downfalls of this is they’re not completely exact yet. It’s just a yes, a pass or fail as to whether you have cannabis in your system or not. It’s not about how much cannabis, like how we would see with the blood alcohol content test.”

As of Wednesday, 33 states have also authorized their law enforcement to conduct oral fluid tests on drivers, according to Responsibility.org. And local agencies like the Ohio State Highway Patrol are willing to use them. Lt. Ray Santiago explained why the agency supports HB 230.

“The patrol has been working on oral fluid testing methodology for several years as drug impairment has outpaced alcohol impairment in Ohio fatal crashes since 2019,” Santiago said. “Oral fluid testing is advantageous because it does not require an officer of the same gender to collect urine samples and oral fluids can be collected near the same time that the suspected impaired driver was operating a vehicle.”

In an email to NBC4, Abrams also cited the other states’ usage and the methodology as evidence to support their use.

“Michigan’s pilot program concluded that oral fluid testing was accurate for purposes of preliminary roadside testing,” Abrams said. “Other states, who already authorize the use of oral fluid testing, use labs like Forensic Fluids. Forensic Fluids works in step with local law enforcement agencies to complete testing in their labs with 24-hour turnover rates while maintaining the chain of custody to test the parent genes or the “psychoactive element” within an individual’s system rather than a metabolite to test how high a person is.”

Abrams testified again in support of the technology in a June Senate Judiciary Committee hearing, as well as before the bill’s passage. But besides stressing the tests look “for the parent gene, not the metabolite,” she deferred senators to experts for more details on them.

Harm Reduction Ohio is a nonprofit that supports science-based drug policies and also brands itself as the state’s largest distributor of naloxone, a fentanyl and opioid overdose reversal drug. Its president, Dennis Cauchon, disputed that testing for a parent gene would help in accurate drug detection.

“It sounds good and in certain cases, it makes a difference,” Cauchon said. “But in marijuana oral fluid testing, one isn’t better than the other. None of them are very good.”

Savchenko and Cauchon independently raised concerns that the length of time marijuana stays in a person’s system after consumption could be an issue with the oral fluid tests.

“I think it’s going to be really difficult to use this as concrete evidence,” Savchenko said. “Just because someone smoked this morning and they’re driving at 6 p.m. doesn’t mean that they’re still high.”

A February article published in the Journal of Analytical Chemistry and Microbiology International backs Savchenko and Cauchon’s challenge to oral fluid tests. Researchers wrote that saliva, breath and other bodily fluids all retain the psychoactive ingredient in marijuana past the typical window a user could be impaired. The tests also risk giving false positives for drivers who also may have consumed hemp-derived CBD products .

“Recent studies have shown no direct relationship between impairment and Delta 9-tetra-hydrocannabinol (Delta 9-THC) concentrations in blood or saliva, making legal ‘per se’ Delta 9-THC limits scientifically unjustified,” the study’s abstract read.

NBC4 also reached out to the Ohio Department of Health for its perspective, but the agency deferred to the Ohio State Highway Patrol.

Santiago noted that in Ohio, 551 people died in “drug-related” traffic crashes in 2023. But Cauchon doesn’t think oral fluid tests are ready for action as a catch-all answer.

“These oral fluid tests make sense in certain situations,” Cauchon said. “For certain drugs, they’re less intrusive than urine testing, but it really requires fact-specific knowledge on when they work, how they work … It’s possible these tests will be improved, so I’m not saying it’s never possible.”

HB 230 did receive some bipartisan support when it came to a House vote in April. Democratic Rep. Cecil Thomas made public comments to back it and repeated the disputed claim that fentanyl was being found in marijuana . But besides Abrams’ mention of the oral fluid tests, no other members of the chamber addressed them before voting.

HB 230 was introduced in the Senate in May before being referred to a committee. The Ohio Legislature’s website showed Senate committee hearings scheduled for Tuesday and Wednesday, but the chamber won’t have a full session until Nov. 13.

Read the text of the bill as introduced in the Senate below:

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