Drug Checking Lollipops in New York

If you were arrested in New York after taking a saliva-based drug test shaped like a lollipop, a New York drug crime lawyer can review how the test was used and whether the results can be excluded from your case. The device collects a saliva sample using a sponge attached to a plastic handle and delivers results within minutes. It is designed to detect substances such as amphetamines, methamphetamines, cocaine, opioids, and THC.

Law enforcement officers sometimes use this kind of rapid oral fluid screening during traffic stops when they suspect drug use. Some employers, schools, and correctional facilities also rely on them for drug screening. Although the process is quick, the reliability is questionable. False positives can occur, especially when a person has taken certain legal medications or used common over-the-counter products.

A positive result does not automatically mean a person committed a drug crime. In many cases, the result alone is not enough to support a conviction unless it is confirmed through more accurate laboratory testing. If you were charged with a drug offense based on one of these devices, speak with a New York drug crime lawyer to find out what legal arguments may be available in your defense.

Are These Lollipop Drug Tests Legal in New York?

There is no New York law that specifically bans the use of saliva drug tests, including lollipop-style devices. These devices began appearing on the market around 2021 and have started to be used by some law enforcement agencies in traffic stops and other investigations. Although they are marketed as quick screening tools, their legal status depends on how and when they are used.

In New York, any drug test conducted by police must comply with constitutional protections. During a suspected driving under the influence of drugs (DUID) stop, an officer must have reasonable suspicion to initiate the stop and probable cause to administer a search. Courts have generally treated saliva drug tests as searches under the Fourth Amendment, which means they must be properly justified. If not, the results may be excluded.

New York courts have not yet directly addressed the admissibility of lollipop-style saliva tests in a published opinion, but the underlying legal principles are clear. Under People v. Wesley, 83 N.Y.2d 417 (1994), scientific evidence must meet general acceptance within the relevant scientific community. We are closely monitoring the courts for any rulings that address this issue directly. A New York drug crime lawyer can assess whether a lollipop drug test was used legally and whether the results can be challenged.

What Are the Legal Concerns With Drug Checking Lollipops?

When a client comes to us after being arrested based on the result of a saliva drug test, we focus on several legal concerns:

• Probable cause: First, we would investigate to determine whether there was a lawful basis for both the stop and the drug test. In New York, police must have reasonable suspicion to initiate a traffic stop. To conduct a search, such as administering a saliva drug test, they must have probable cause or a valid exception to the warrant requirement, such as consent or exigent circumstances. If either the stop or the search lacked proper legal justification, we would argue that the test results are the product of an unlawful search and should be excluded from the case.
• Chain of custody: When defending a client charged with a drug crime based on a lollipop test, we would also investigate how the saliva sample was handled. We would check the chain of custody to determine whether the sample was properly collected, labeled, stored, and transferred. If there are gaps in documentation, evidence of contamination, or mishandling at any stage, we would challenge the reliability of the result and move to have it excluded from the case.
• Scientific reliability: We would investigate whether the test used meets the legal standard for scientific acceptance in New York. Under Frye v. United States, 293 F. 1013 (D.C. Cir. 1923), the method must be generally accepted by experts in the relevant scientific field. If the lollipop-style test lacks peer-reviewed research or independent validation, we would move to exclude the results from evidence.
• Right against self-incrimination: If the client made statements during the testing process, we would determine whether those statements were obtained in violation of Miranda v. Arizona, 384 U.S. 436 (1966). Saliva collection itself is considered physical evidence, but any verbal statements made without proper warnings may not be admissible.
• Consent: We would also assess whether the client gave valid and voluntary consent to the test. If there was no warrant, no court order, and no clear indication that the client agreed to the test freely and knowingly, we would argue that the results were obtained unlawfully and should be suppressed.

A knowledgeable New York drug crime lawyer will investigate each of these issues and build a defense strategy accordingly.

Can Drug Lollipop Test Results Be Used in Court?

Whether a drug checking lollipop test result can be used in court depends on how and why it was obtained. Under New York law, evidence must meet standards of admissibility, including relevance, reliability, and fairness.

For example, in People v. Wesley, 83 N.Y.2d 417 (1994), the Court of Appeals reinforced that scientific evidence must meet general acceptance within the relevant field. If the drug lollipop test used has not been subject to independent scientific review or lacks proper validation studies, a court may reject the results as unreliable.

Even if the test is scientifically accepted, how the sample was collected and handled matters. If a police officer did not follow the proper steps, the defense can move to suppress the results under CPL § 710.20, which governs motions to suppress evidence obtained in violation of rights. In People v. Weaver, 12 N.Y.3d 433 (2009), the Court of Appeals reaffirmed that warrantless searches which violate an individual’s reasonable expectation of privacy are unconstitutional under the New York State Constitution, even if they might be allowed under federal law. This case strengthens the argument that improper collection or use of a saliva sample without proper legal justification could result in suppression.

If we were representing a client charged with a drug crime based on the results of a lollipop test, we would file pretrial motions to challenge the admissibility of the test, and, if necessary, bring in experts to evaluate the accuracy and scientific basis of the testing device.

What Should You Do If You Were Arrested After a Positive Saliva Test?

If you were arrested in New York after a drug checking lollipop test, you should:

1. Do not make statements: Exercise your right to remain silent. Statements made during or after arrest can be used against you.
2. Get a copy of the police report: This may provide information on what the arresting officer claims to have observed and why the test was used.
3. Contact an experienced New York drug crime lawyer: Early legal advice can make a major difference in your case.

If were we representing a client arrested based on a lollipop test, we would review the timeline, examine all test documentation, file appropriate suppression motions, and advocate for dismissal or reduction of charges where the evidence is weak.

Can These Tests Detect Legal Substances?

Lollipop tests can detect legal substances and may produce false positives as a result. Some products and medications contain ingredients that are chemically similar to controlled substances, which can trigger an incorrect result. For example:

• CBD products may lead to a positive THC result, even if the CBD was legally purchased and used.
• Prescription medications such as Adderall, which contains amphetamine, can show up as a positive for stimulants.
• Cross-reactivity can occur when the test reacts with a substance that shares similar properties with the drug being screened for.

New York courts have acknowledged the need for accuracy and reliability in drug testing. In People v. Mertz, 68 N.Y.2d 136 (1986), the court stressed that scientific testing must meet established standards. If a client came to us after receiving a false positive, we would obtain the full lab report, review any medications or supplements the client had recently used, and determine whether an independent toxicologist should be brought in to evaluate the result.

Are There Federal Regulations That Apply?

The Food and Drug Administration (FDA) regulates drug testing kits that are used for medical or screening purposes. Some saliva-based tests shaped like lollipops are cleared for professional use but are not intended for over-the-counter sale to the public.

The Substance Abuse and Mental Health Services Administration (SAMHSA) has also issued guidance on the proper use of oral fluid testing in workplace and legal settings. These guidelines are not mandatory unless the testing is part of a federally regulated program, such as Department of Transportation (DOT) drug screening.

In defending a client charged after a positive result on a lollipop drug test, we would review all applicable federal, state, and local laws and regulations to determine whether proper procedures were followed. We would also examine whether the test used had FDA clearance and whether any protocols established by SAMHSA or local agencies were ignored. If the test was administered with a device that lacked proper approval or was used in a way that violated official guidance, we would argue that the result is unreliable and should not be admitted. We would explore every relevant defense to protect the client’s rights.

What Penalties Could You Face in a Drug Case?

The penalties that you could face in a drug case in New York depend on several factors, including the type of charge, the substance involved, and your prior record. A drug crime attorney in New York can help you understand what sentencing ranges may apply and what legal options are available in your situation.

Drug charges in New York range from misdemeanors to serious felonies:

• Criminal possession in the seventh degree under N.Y. Penal Law § 220.03 is a class A misdemeanor, punishable by up to one year in jail.
• Criminal possession in the fifth degree under N.Y. Penal Law § 220.06 is a class D felony, which can carry a sentence of up to seven years in prison.
• Criminal possession in the third, second, or first degree are class B or class A felonies with more severe penalties, including mandatory minimum sentences depending on the amount and intent.

In cases involving drugged driving, a conviction under N.Y. Veh. & Traf. Law § 1192(4) can result in license suspension, fines, and possible jail time.

Sentencing is affected by your criminal history, the substance and quantity involved, and whether you qualify for a diversion program. We would examine all sentencing options, including treatment, drug court, or dismissal where the evidence does not support the charge.

Frequently Asked Questions About Drug Lollipop Testing in New York

Q. Can police use a drug lollipop test without a warrant?

A. In most cases, police can administer a saliva drug test without a warrant if they have probable cause and exigent circumstances, such as in a traffic stop. If those conditions are not met, the test may be unlawful.

Q. Are these tests allowed in New York schools?

A. Public schools must follow constitutional limits, including the student’s Fourth Amendment rights. Random drug testing in schools has been upheld in certain circumstances, but widespread use of these lollipop kits without clear policy may raise legal questions.

Q. Can I refuse a saliva drug test?

A. You can refuse, but that refusal may carry consequences. In driving cases, refusal to submit to chemical testing can result in license suspension under VTL § 1194. Whether saliva testing qualifies depends on the context.

Q. Is a saliva test more reliable than a urine test?

A. Saliva tests are quicker and less invasive, but they generally detect recent drug use over a shorter window. Reliability depends on proper usage, storage, and quality control.

Q. Can employers use these tests in New York?

A. Yes, especially in safety-sensitive industries. However, employers must follow New York Labor Law § 201-d and may not take action based on legal off-duty use, such as marijuana.

Q. What should I do if I think the test was a false positive?

A. Contact an experienced New York drug crime lawyer immediately who can seek retesting, expert review, or suppression of the evidence.

Q. Are these tests used in family court or child welfare cases?

A. Yes, child protective agencies sometimes use oral drug tests to evaluate fitness or compliance. However, results must be documented and handled according to evidentiary rules.

Q. Could these tests be used during probation or parole supervision?

A. Yes. Saliva drug tests are sometimes used by probation departments as part of routine monitoring. However, they must still follow procedural safeguards. Inaccurate testing or improper interpretation could lead to sanctions, including revocation. If a client came to us under threat of probation violation based on a lollipop test, we would scrutinize the conditions of supervision, assess the reliability of the test, and advocate for independent lab confirmation.

Q. Are there time limits for challenging drug test results?

A. Yes. Under New York’s Criminal Procedure Law § 710.30, a defendant generally must notify the court of any intention to challenge scientific or technical evidence. There are also general deadlines for filing motions to suppress and for asserting speedy trial rights under CPL § 30.30. An experienced New York drug crime lawyer will make sure these deadlines are met and that your case is positioned for the best possible result.

Contact Stephen Bilkis & Associates

If you or a loved one was arrested based on a drug checking lollipop test, contact Stephen Bilkis & Associates today. These tests raise serious legal and scientific questions, especially when used by law enforcement without adequate safeguards. A positive saliva test should not automatically lead to conviction or punishment. Our experienced drug crime attorney serving New York will examine whether your Fourth Amendment rights were violated, investigate the test’s scientific reliability under Frye, challenge improper procedures and broken chains of custody, and take other appropriate steps to work to dismiss or reduce the charges whenever possible.

Call us today at 800.696.9529 to schedule a free, no-obligation consultation. We represent clients in Manhattan, Brooklyn, the Bronx, Queens, Staten Island, Nassau County, Suffolk County, Westchester County, and surrounding areas.