Saliva testing to determine narcotic influence


FORT SMITH — A new state law will go into effect this summer allowing Arkansas law enforcement agencies to use saliva testing to determine narcotic influence.

The Legislature approved the measure in March, not long after the practice originated in Sebastian County.

Saliva testing is popular in Europe and growing in acceptance in the United States. Oklahoma, Missouri, Colorado, New York, Michigan, Vermont, California and North Dakota all have passed bills enabling the use of saliva testing, according to Sen. Jake Files, R-Fort Smith, who sponsored Arkansas’ new law.

“Approximately a year ago, I was working on a case in reference to synthetic marijuana,” Lt. Allan Marx of the Sebastian County Sheriff’s Office said. “During this investigation, I (learned about) this new way to test for drugs.”

The method, which was not in effect in Arkansas, involved testing a saliva sample from a suspect.

The testing method is popular in Europe and has been accepted into in law in some U.S. states, Marx said.

State Sen. Jake Files, R-Fort Smith, who sponsored the bill in the Arkansas Legislature, said Oklahoma, Missouri, Colorado, New York, Michigan, Vermont, California and North Dakota all have passed bills enabling the use of saliva testing. He also said some other states have laws stating that body fluids can be tested to determine whether a suspect is under the influence of narcotics.

“Lt. Marx contacted me back in November or December about something that he had discovered,” Sebastian County Prosecuting Attorney Daniel Shue said. “That there was this new technology and current law in Arkansas didn’t provide for it.”

If a test with a saliva-testing kit determines that a suspect is under the influence of a narcotic, an officer can make a probable cause arrest. Following the probable cause arrest, blood and urine tests can be used to determine with certainty whether the suspect is inhibited by a narcotic or intoxicant.

“This is basically a portable drug test,” Marx said.

Shue drafted a bill to permit additional chemical tests, including saliva testing, for driving while intoxicated. The bill also allows additional chemical tests for operating a motorboat while intoxicated, operating or navigating an aircraft while intoxicated and underage driving under the influence.

“It gives probable cause for law enforcements officers to believe that someone is violating Arkansas law,” Shue said. “It’s one more item that can be added, and judges and juries can look at and determine if reasonable suspicion was found for a stop.”

Files introduced the 11-page bill to the Arkansas Senate on Feb. 18.

“I’m of the firm opinion and belief that any tool we can get for law enforcement that can make us safer is good,” Files said. “It gives law enforcement a tool in the field to check for sobriety and drugs, and it’s a quick barometer of what’s going on with (an intoxicated driver).”

The bill received support from the Arkansas Prosecuting Attorneys Association, the Arkansas Sheriffs’ Association and the Arkansas Association of Chiefs of Police, Files said.

Files said the bill passed the Senate and House with little resistance.

“It had good support from law enforcement,” Files said. “When you have something that is supported by those (associations), it’s going to be hard for someone to stand up against it and still say that they are going to be tough on crime.”

Gov. Mike Beebe signed it into law as Act 361 on March 14. The new additions to the law will go into effect July 19, Marx said.

Marx has become a distributor of an oral saliva drug test called OralTox, created by Premier Biotech. Marx created a website, www.gotchadwi.com, to the sell the test kit.

Marx said OralTox can test for up to 12 different narcotics/intoxicants at the same time, including: Alcohol, amphetamines, barbiturates, buprenophines, cocaine, cotinine, metabolite, ketamine, methamphetamine, methadone, opiates, oxycodone, PCP, propoxyphene and marijuana.

“I started researching it and believed I located the best in the business for law enforcement,” he said. “Depending on the drug, it’s between 95 and 99 percent accurate.”

If a suspect who is pulled over fails a field sobriety test, an officer can use the kit to get a saliva sample. The test requires a 10-minute observation period to yield results. The test contains 12 strips, each that represents a certain narcotic or intoxicant.

“(An officer) puts the saliva test kit in (the suspect’s) mouth for approximately four minutes or until the saturation indicator strip changes colors,” Marx said. “Negative results can be read at two minutes and positive results can be read at 10 minutes. It’s a lot like a pregnancy test is the way Sen. Files explained it.”

A suspect, Marx said, cannot get around the results of a saliva test.

“The only thing that’s out there right now is a mouthwash, which will dry your mouth out for a 10-minute period, but the 10-minute observation period will defeat that,” Marx said.

Files said he does know of some law enforcement agencies that are interested in using saliva testing.

How the court system regards test results will determine the viability of saliva testing, according to Shue.

“We’ll get some guidance on how accepted it based on the court system,” Shue said. “There’s a whole series of Supreme Court cases and Arkansas court cases dealing with the acceptance of new scientific testing. It will have to be accepted by the legal community to confirm it is a good and effective test.”

— Hicham Raache writes for the Times Record in Fort Smith