The race is on. Who can develop the most reliable and accurate breath test machine for marijuana (THC)? And, who can do it the fastest?
Some companies tote they already did it. Dräger claims to already have such a machine. Its machine, can test up to seven different drugs, including methamphetamine and cocaine. Cannabix Technologies also states it has a device here. Cannabix is currently working to make its technology medical grade and legally acceptable. All methods of testing garner intense scrutiny in court, especially new technologies.
Why even bother developing breath test machines for drugs? Three reasons seem to be at play: (1) legalization of marijuana in various states; (2) recent constitutional scrutiny of blood and urine testing; (3) and money.
As more states start to legalize marijuana, especially for recreational use, law enforcement desires a testing mechanism that can provide instant results. Without a breath test machine for drugs, officers are most commonly left with blood and urine testing to determine what substances are actually in a person’s body. When cops arrest someone on suspicion for driving under the influence of drugs, they often transport the driver to a hospital for a blood draw or have them submit to a urine test. In either event, the sample is sent to the state’s crime lab for testing. Results generally take four to eight weeks to get back to the officer. But it some cases, it can take much longer. Having a reliable an accurate breath test for drugs can provide instantaneous results and expedite the legal process. Saving time and resources at the crime lab.
Blood and urine testing are constantly under attack by defense lawyers. The constitutional challenges to these testing mechanisms increased exponentially since the United States Supreme Court decided Missouri v. McNeely in 2013. Since McNeely, every state’s DWI laws are undergoing challenges about whether a warrant is needed for blood and urine tests. Now, with SCOTUS granting review in Bernard v. Minnesota, the challenges will continue to mount. Breath testing seems to be least invasive of the methods available and having a reliable and accurate breath test machine is desirable in most jurisdictions. Some prosecutors instruct law enforcement officials to only request a breath test in alcohol-related DWI cases, especially in Minnesota where cops are not required to offer an alternative test if a breath test is refused.
Testing saliva by a cheek swab is an additional method coming to the forefront since the United States Supreme Court decided Maryland v. King in 2013. Any scientific methods of testing that pass constitutional scrutiny and can make people money in the private sector will be promoted heavily to state agencies.
If people can make money from a product, they will push it. Testing for THC and other drugs with instantaneous results is a new frontier. Those companies that can prove the reliability and accuracy of their technology will be in line to profit, if they can get to the finish line first and successfully lobby the right agencies.
Robert H. Ambrose is a criminal defense attorney in Minnesota. He is a member of the National College for DUI / DWI Defense and has a Lead Counsel Rating in Drunk Driving Defense. For a free consultation, please call 612-547-3199 or email firstname.lastname@example.org.
 In McNeely, the Court determined the natural metabolization of alcohol does not present a per se exigency as an exception to obtaining a warrant under the Fourth Amendment for nonconsensual blood tests in drunk-driving cases.
 In King, the Court ruled that taking a DNA sample by using a cheek swab was not an unreasonable search under the Fourth Amendment because the search occurred as a part of the normal booking process.