Jun 25
2024
A purchase by the sheriff with limited value
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Erie County Sheriff John Garcia. Photo by Garrett Looker.
The Erie County Sheriff’s Office plans to acquire equipment to detect whether motorists are under the influence of drugs, even though results aren’t admissible in court due to accuracy concerns.
The purchase of five SoToxa drug analyzers at a cost of $26,000 would be funded through a $2.9 million state grant approved unanimously last week by the county Legislature with no debate or discussion. The money also would pay for surveillance cameras, drones, license plate readers and mobile x-ray equipment designed to capture images of vehicles that would be deployed at all mass gatherings.
Civil libertarians have raised concerns about the x-ray equipment and other surveillance gear. Legislator Howard Johnson, who chairs the Legislature’s public safety committee, said he’s confident the sheriff’s office won’t break any laws with the new technology.
“I just think these are just tools that are going to enhance their tool chest and give them the ability to do some unique things that they probably have not had the opportunity to do before,” Johnson told Investigative Post after the Legislature approved the purchases.
Looking a bit like brick-style cell phones from the 1980s, SoToxa analyzers are designed to detect the presence of six types of drugs — amphetamines, methamphetamine, cocaine, marijuana, benzodiazepines and opioids — in saliva after a suspect has swished a disposable cartridge in his mouth.
Neither the sheriff’s office nor any other law enforcement agency has consulted with prosecutors about using roadside saliva tests to detect drugs, according to Kait Munro, spokeswoman for acting Erie County District Attorney Michael Keane.
New York State Police are experimenting with saliva tests, but not with roadside testing equipment such as SoToxa. Rather, samples are sent to a laboratory for testing, wrote Beau Duffy, state police spokesman, in an email.
Police in at least 10 states use SoToxa analyzers, but results aren’t admissible in any U.S. court due to accuracy concerns.
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In Michigan, researchers who compared SoToxa results with blood tests, which can be used in court, found that the devices’ results were wrong more than 23 percent of the time, according to a 2021 report to the Michigan state legislature.
False positives ranged from 65 percent of opiates flagged by SoToxa to 5 percent of marijuana positives. False negatives were also an issue. Thirty percent of cannabis samples deemed negative by SoToxa analyzers were found to be positive in blood tests.
Michigan State Police blamed problems on timing, according to media reports. By the time blood is drawn from a suspect who took a roadside saliva test, drugs might be gone from his system, police said, and drugs can break down and disappear from blood samples before testing.
Wisconsin researchers who took blood samples at the same time as SoToxa analyzers gathered saliva from 106 suspected drugged drivers reported accuracy rates above 90 percent for opioids, amphetamines, methamphetamine, benzodiazepines and cocaine, according to their 2022 research paper. Researchers wrote that SoToxa cannot detect fentanyl.
Wisconsin researchers cautioned that the number of motorists who participated in the study was a fraction of the number arrested on suspicion of drugged driving while also noting accuracy issues and inability to detect fentanyl. Still, they concluded that roadside saliva tests could have merit.
“Despite these limitations, the SoToxa instrument may be useful in assisting law enforcement with identifying individuals driving under the influence of drugs and establishing probable cause at roadside for making impaired driving arrests,” researchers wrote.
Police in Canada also use SoToxa analyzers, even though two of the devices, then called Alere DDS2 analyzers, registered only positive results, including when tests were performed on police officers, during an 11-week trial in 2016 and 2017.
SoToxa did not respond to a request for comment.
In an email, Christopher Horvatits, spokesman for Erie County Sheriff John Garcia, compared SoToxa devices to preliminary breath tests (PBTs) police have used for more than 20 years to detect alcohol.
PBT results aren’t admissible in court because they’re not considered sufficiently accurate. Police throughout the country nonetheless use them to help determine whether drivers are impaired.
Deputies will still need additional evidence beyond SoToxa results, such as citizen complaints, blood draws and performance on field sobriety tests, Horvatits wrote.
“Submission to these screening devices is voluntary, and there is no penalty for refusal,” Horvatits wrote.
Just say “no,” some defense attorneys say.
“Since the test should have no scientific value, there’s no reason to take the test,” Buffalo criminal defense attorney Herb Greenman wrote in an email. “However, officers will likely take a refusal as quasi-acknowledgment of drug use.”
