Vt. Saliva Drug Testing Bill Meets Demise

Published: 5/2/2018 11:50:56 PM
Modified: 5/2/2018 11:51:05 PM

Montpelier — A bill that would have allowed law enforcement to obtain saliva for testing from motorists suspected of drugged drive effectively has been shelved for this legislative session.

The legislation faced threats of legal challenges from the Vermont chapter of the American Civil Liberties Union and the state’s Defender General’s Office. They both contend that detecting a certain drug is in a person’s system does nothing to prove impairment behind the wheel.

The bill, H.237, passed the House in March with strong support from law enforcement, who argued it was needed for roadway safety, especially in light of the approval of legislation earlier this year that legalizes the recreational use of marijuana starting on July 1.

However, it now appears the saliva testing legislation won’t be moving any further.

The Senate Judiciary Committee voted, 4 to 1, on Wednesday morning in opposition to the measure.

The action by the Senate panel, according to Sen. Dick Sears, D-Bennington, the committee’s chairman, kills it for this year.

“As far as this committee goes, as far as this bill goes, it doesn’t go to the (Senate) floor,” Sears said, but then quickly added, “You can never say never in this building because it could surface somewhere else.”

Vermont Public Safety Commissioner Thomas Anderson testified before the Senate panel in favor of the legislation. He said after the vote he was disappointed with the result.

“I think this was a step toward roadway safety,” the commissioner said. “It’s unfortunate that it did not get out of committee.”

Committee members voting in opposition to saliva testing were Senate President Pro Tem Tim Ashe, D/P-Chittenden; Sen. Jeanette White, D-Windham; Sen, Joe Benning, R-Caledonia; and Sears. Sen. Alice Nitka, D-Windsor, cast the lone vote in support of the legislation.

Sears, in explaining his vote, agreed with the argument of opponents of the legislation that said there was no standard for linking the level of a drug in a person’s system and impairment.

He said he thought researchers and scientists would come up with an answer to that problem at some point in the future, but it’s not there now.

“I could support it if there was a standard that we knew somebody was impaired,” Sears said of the legislation. “I know these companies are working on it, particularly for marijuana, because they know this a moneymaker for them.”

Anderson, in urging the committee to adopt the legislation, said the only way to test now for the presence of drugs in a driver believed to be impaired is a blood test, which requires a warrant.

That process of obtaining a blood test is time-consuming, often leading to it being administered well after a traffic stop. A saliva test, he told the panel, could be administered immediately.

Anderson said a saliva test would be an added tool for officers to use in trying to determine if a motorist is impaired.

If the results of a non-evidentiary, or screening, roadside saliva test is positive for drugs, an evidentiary saliva test would follow. That “confirming” test would be sent to the state laboratory for results.

The legislation did not recommend establishing a “per se” limit in a person’s system of THC, the active ingredient in marijuana.

Anderson told the panel before performing a saliva test, other indicators of impairment will be taken into account, including an officer’s observation of a motorist’s driving to that person’s performance on a field sobriety test.

“It’s another piece of evidence,” he said of saliva test results. “It is good public policy that prosecutors and juries have as much evidence as possible.”

Ultimately, he said, the admissibility of such a test into evidence in a court case would be decided Vermont Supreme Court.

“The question is going to be whether you need a warrant or not,” Anderson said. “That’s why we have courts.”

“The Legislature could decide that,” Sears replied.

A saliva test would be able to detect different drugs including cannabis, cocaine, amphetamines, methamphetamine and certain opiates.

Chloe White, policy director at the American Civil Liberties Union of Vermont, also testified before the panel on Wednesday, reiterating the organization’s opposition.

She said the state already has effective tools to determine a motorist’s impairment, including field sobriety tests, such as walking a straight line, and Drug Recognition Experts, or DRE, specially trained officers in the detection of drivers impaired by drugs.

“Unlike a saliva test,” she added, “a field sobriety test focuses on actual impairment.”

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