A urine sample, right, at the Oregon State Police Forensic Laboratory. July 27, 2018 Beth Nakamura/Staff
One day in September, a car heading down the road in Jackson County caught the attention of a law enforcement officer. The officer pulled the car over and arrested the driver on suspicion of driving while high.
After providing a urine sample at the station, the driver was released with a citation and a court date 30 days later.
In May, eight months later, the driver was still on the road and was again arrested on suspicion of driving high and provided a second urine sample.
Neither sample has been tested, and the driver has yet to be formally charged in court. The samples sit in a refrigerator at an Oregon State Police crime lab along with 2,241 other samples that haven't been tested, part of a backlog that can delay toxicology results in Oregon by more than a year.
Marijuana has long been the leading substance, after alcohol, involved in Oregon cases of driving while intoxicated. But the number of people tested for marijuana-impaired driving has surged since the legalization of recreational cannabis in 2015, bogging down the system for analyzing drivers' urine.
Ashley Zelinski, a forensic scientist at the Oregon State Police Forensic Laboratory, prepares to place urine samples into a gas chromatography mass spectrometer, which will separate drugs from urine and identify the drugs by their fingerprint. July 27, 2018 Beth Nakamura/Staff
"Misdemeanors in Oregon have a statute of limitations of two years, and we are using half of it to wait for a urine result," said Bryan Brock, a Clackamas County deputy district attorney.
Brock is among many in the public safety and legal community who are fed up with the state's system for determining if drivers are impaired by drugs. And the ire comes from both sides of the courtroom.
Prosecutors say the backlog poses a significant threat to public safety, keeping drug-impaired drivers on the road while delaying opportunities for court-ordered treatment. Defense attorneys say their clients, stuck in a limbo for months on end while samples await testing, are being denied their constitutional right to a speedy trial.
Shanon Gray, a Portland defense attorney, called the delay in processing "very frustrating."
"I can't advise clients without crime lab results," he said.
Some experts believe the test causing this headache isn't even the most reliable way to determine if someone was impaired while driving.
Urine samples at the Oregon State Police Forensic Laboratory. July 27, 2018 Beth Nakamura/Staff
The importance of urine
Most people know that certain substances make people drive worse -- whether it's alcohol, cocaine or too much cold medicine. But detecting how much is too much is not always simple.
With alcohol, it's widely accepted that a concentration of .08 percent in the blood makes a person incapable of driving safely, and alcohol on your breath is an excellent predictor of what's in your blood. A failed breathalyzer test leads Oregon authorities to immediately suspend a driver's license and replace it with a permit that expires in 30 days, when these cases usually go to court.
For drugs ranging from cocaine to opioids, it's more complicated. Tests of bodily fluids such as blood, saliva or urine can be used to calculate a concentration in the body, but those results aren't as reliable for showing impairment as with alcohol. One driver can be more dangerous than another with the same concentration of cocaine, depending on metabolism and frequency of use.
Small amounts of diluted urine at the Oregon State Police Forensic Laboratory. July 27, 2018 Beth Nakamura/Staff
The same uncertainty exists for cannabis, only worse.
Marilyn Huestis, the former chief of chemistry and drug metabolism for the National Institute on Drug Abuse, said it is nearly impossible for fluid testing to accurately determine whether someone is impaired by tetrahydrocannabinol, the psychoactive compound in marijuana.
Adding to the problem, she said, is the fact that THC lingers in the body much longer than other drugs. Anyone high a week ago most likely still has the drug in his or her system.
Small amounts of diluted urine at the Oregon State Police Forensic Laboratory. July 27, 2018 Beth Nakamura/Staff
Huestis said the only true test of marijuana impairment is to watch behavior. In Oregon and elsewhere, any erratic driver who passes a breathalyzer will be put through a series of questions, physical measurements and coordination tests known as a drug recognition evaluation. Oregon has certified 225 officers to administer these tests, 46 of them on the Oregon State Police force.
Tests for drugs in bodily fluids are used only as a secondary check. The results can verify the specific type of substance causing impairment and reduce doubt about the officer's judgment in the eyes of a judge. Oregon uses urine, because it's easy to collect. But urine is less accurate than blood because it retains traces of drugs longer, particularly THC.
"Urine is the trash can of the body," said Sgt. Evan Sether, the state coordinator for the Oregon State Police Drug Evaluation and Classification Program.
A urine sample at the Oregon State Police Forensic Laboratory. July 27, 2018 Beth Nakamura/Staff
That's why most other states use blood instead.
Still, urine is essential in Oregon for moving a marijuana-impairment case forward.
Every cup of urine police collect must go through one of two crime labs that run toxicology tests for the Oregon State Police. Six toxicologists in Springfield and 17 in Portland test urine and blood samples -- not just for impaired driving cases, but as evidence in other crimes.
Ashley Zelinski, a forensic scientist at the Oregon State Police Forensic Laboratory, prepares to place urine samples into a gas chromatography mass spectrometer, which will separate drugs from urine and identify the drugs by their fingerprint. July 27, 2018 Beth Nakamura/Staff
The process was working with limited delays before marijuana legalization in July 2015. Over the next nine months, the number of Oregon drivers suspected of cannabis impairment at a traffic stop rose by about 60 percent.
Sether said the number of Oregon officers certified to test drivers increased during the period, but so has the number of requests for their services.
A section of a quadruple time of flight mass spectrometer, which filters urine and screens and measures for both known and unknown drugs. July 27, 2018 Beth Nakamura/Staff
By 2016, the typical time it took to test urine samples for THC had grown significantly.
While the Oregon State Police couldn't provide historical numbers for the number of samples submitted annually, in 2016 it was about 2,800. That annual volume is bigger than today's total backlog of 2,241 samples.
Small amounts of diluted urine at the Oregon State Police Forensic Laboratory. July 27, 2018 Beth Nakamura/Staff
Diverting more employees to tackle the urine backlog would have repercussions. Although there are 146 crime lab employees across five labs statewide, many specialize in other important disciplines such as DNA analysis or firearms testing. Some are focused on whittling down another important backlog: unprocessed rape kits.
"Our people remain our most essential system component, and we don't have enough of them," Capt. Alex Gardner, director of the Oregon State Police forensics division, said in an email.
Small amounts of diluted urine at the Oregon State Police Forensic Laboratory. July 27, 2018 Beth Nakamura/Staff
Waiting for results
The Jackson County driver is one of many cases in Oregon where drivers have been able to stay on the road despite being arrested for driving under the influence.
The descriptions of these arrests came from the Oregon District Attorneys Association. The organization was reluctant to share details on the drivers since they've yet to become cases. A citation from an officer becomes a case when a district attorney charges the offender with a crime before a judge.
Small amounts of diluted urine at the Oregon State Police Forensic Laboratory. July 27, 2018 Beth Nakamura/Staff
A Lane County driver was pulled over for allegedly driving high in June, after a previous arrest for the same kind of citation in November. Two additional Jackson County residents were arrested twice for driving high. The first was arrested in February and again in May, while another was arrested twice in the span of 10 days, both for DUIIs.
Lab results are still pending for all of these cases.
Small amounts of diluted urine at the Oregon State Police Forensic Laboratory. July 27, 2018 Beth Nakamura/Staff
Oregon public safety officials and legal experts want to prevent more of these cases from occurring. They're also concerned offenders aren't getting the treatment they need for substance abuse.
In Oregon, drivers may have their misdemeanor charges dismissed by successfully completing a program known as "diversion." This entails undergoing drug rehabilitation, attending a victim impact session and paying any fines. Only people who are first-time offenders or were charged with a DUII more than 15 years ago can qualify.
Urine samples sit in a refrigerator at the Oregon State Police Forensic Laboratory. Forensic scientist Ashley Zelinski says the samples represent about two weeks worth of work. July 27, 2018 Beth Nakamura/Staff
A DUII suspect typically has only 30 days from arrest to decide whether or not to enter diversion. The urine backlog means many marijuana defendants don't know how strong the case against them is in time for the deadline.
"It really impacts the offender who isn't able to enter treatment right away, who has to wait a year to know if they are going to be charged with a crime or not," said Amanda Dalton, a lobbyist for the Oregon District Attorneys Association.
Gray, the defense attorney who focuses on DUII cases, said when clients are considering diversion, they'd like their toxicology results first.
A urine sample at the Oregon State Police Forensic Laboratory. July 27, 2018 Beth Nakamura/Staff
However, Gray said, the testing backlog means that if a client believes he or she was truly high, he will often recommend entering diversion before the results come in.
Olcott Thompson, the president of the board of directors for the Oregon Criminal Defense Lawyers Association, said the delay interferes with his ability to advise a potential client effectively.
"As a defense attorney, you want all the information possible before even deciding if you want to go to trial," Thompson said.
Ashley Zelinski, a forensic scientist at the Oregon State Police Forensic Laboratory, prepares to place urine samples into a gas chromatography mass spectrometer, which will separate drugs from urine and identify the drugs by their fingerprint. July 27, 2018 Beth Nakamura/Staff
Meanwhile, for state analysts, the backlog has rendered it impossible to accurately measure trends in the number of marijuana-impaired drivers in Oregon.
Oregon State Police data show that the number of positive urine tests fell off a cliff starting in late 2016.
An asterisk with the state data says that's when analysts quit using urine test results to measure the prevalence of impaired driving. People are still driving high, but the dramatic slowdown in processing has badly skewed the numbers.
Analysts who want a full picture of what's happening on the road are frustrated.
"It's like trying to see what the puzzle is with only 10 percent of the pieces," Sether said.
Amanda Goodwin, a forensic scientist at the Oregon State Police Forensic Laboratory, working with urine to prepare it to undergo testing. July 27, 2018 Beth Nakamura/Staff
Looking for answers
Dalton, with the Oregon District Attorneys Association, said her organization is in the process of drafting legislation that would address the backlog, one of her top priorities for the 2019 legislative session.
This issue is on the state's radar and lawmakers recognize that the backlog is a serious problem, Dalton said.
Small amounts of diluted urine at the Oregon State Police Forensic Laboratory. July 27, 2018 Beth Nakamura/Staff
At the beginning of the year, a new law came into effect allowing judges to extend the 30-day timeframe for which someone must enter diversion, for example, if a defendant is waiting on toxicology results, Dalton said.
Dalton said she'd like a bill that would send more money to Oregon State Police crime labs.
"At the end of the day," she said, "it's all about funding."
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Kaitlin Washburn
@kwashy12
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