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Vt. House rejects warrantless saliva tests, defying Scott’s terms for legal pot market

  • Rep. Lynn Dickinson, R-St. Albans Town, left, is interrogated by Rep. Nader Hashim, D-Dummerston, after Dickinson proposed a saliva testing amendment to a cannabis tax and regulation bill at the Statehouse in Montpelier on Thursday. Photo by Glenn Russell/VTDigger

VtDigger
Published: 2/28/2020 10:33:25 PM
Modified: 2/28/2020 10:33:20 PM

MONTPELIER — The Vermont House voted overwhelmingly on Thursday against allowing police officers to conduct warrantless roadside saliva tests on suspected marijuana-impaired drivers, setting up a showdown with Gov. Phil Scott.

Scott has stated he would not support legislation to legalize cannabis sales in Vermont if warrants are required to conduct the roadside testing — a proposal that has raised civil liberties concerns from many lawmakers.

On vote of 117-27, the House rejected a bid to amend the legislation to meet the governor’s terms. The chamber later gave final approval to the bill, moving it one step closer to Scott’s desk.

The saliva testing provision has emerged as the biggest sticking point in the debate over the legislation, SB 54, and could alone determine whether the governor will support or veto the legislation.

“Providing a warrant, it precludes someone from any roadside test because it would have to be done somewhere else,” Scott told reporters Thursday afternoon. “I want to remind everyone, I was pretty clear in the three conditions I had to support this bill. And one of them was roadside testing, saliva testing in particular.”

However, before the legislation reaches the governor’s desk, and Scott makes a decision, the House and Senate still need to reach a compromise in conference committee.

The House’s bill to legalize pot sales in Vermont would allow police to administer saliva tests the same way they currently use blood tests to assess drivers for drug use. They would first need a court order, and then must administer the test on police premises.

The governor, who has said that policymakers need to boost roadway safety measures to earn his support on the marijuana bill, has insisted that police should be able to use the tests at the roadside, in the same way they can use breathalyzers, which do not require a warrant.

“My concern is that they’re not able to use this as they would a breathalyzer right on the roadside to determine right then if there’s an issue or not,” Scott said.

“It might preclude someone, who is suspected to be impaired, it might clear them of that as well and they can be on their way. Otherwise they might have to spend three or four hours at some facility waiting for some warrant,” Scott said.

The saliva testing method is controversial because there is currently no saliva test that can determine whether a person is impaired at the time it is administered.

The test can only determine whether cannabis or other drugs are in someone’s system when it is given. But cannabis can be detectable in a user’s saliva for weeks after it is smoked or consumed.

For this reason, Democrats in the Senate have vigorously opposed the testing on the grounds of civil liberties concerns.

As a compromise, in an attempt to assuage both the Senate and the governor, the House had made it a requirement for police to obtain a warrant before using saliva tests.

On Thursday, the Republican-backed amendment proposed by Rep. Lynn Dickinson, R-St. Albans, came under fire from Democrats.

Rep. George Till, D-Jericho, said the amendment was a “spectacularly bad idea,” because current saliva tests have been proven to be only partially effective. He said he doesn’t support a test that would hold some Vermonters accountable and let others walk free.

Rep. Nader Hashim, D-Dummerston, a former Vermont state trooper, also opposed the amendment out of test-accuracy concerns. He pointed out that the National Highway Traffic Safety Administration has not yet approved saliva testing as a viable form of marijuana detection because of their lack of reliability.

“Vermonters aren’t guinea pigs to try out new tools that have not been accepted by the wider scientific community,” Hashim said.

It also received opposition from a small number of Republicans, including Rep. Tom Burditt, R-Rutland.

“To me it’s a pretty serious intrusion to go inside somebody’s body and take something without a warrant,” he said.

“Even the tests, there’s nothing accurate about the test as far as impairment goes,” he said.

House Minority Leader Pattie McCoy, R-Poultney, backed the amendment. In an interview Wednesday, she reiterated the governor’s stance: She believes police should be able to administer saliva tests in the same way they use breathalyzers.

“Let’s make it the same thing: ‘This is what you do for liquor and this is what you do for cannabis,’ ” she said.

“It’s affecting your judgments and your abilities, so I don’t understand what the difference is,” McCoy said.

Grace Elletson and John Walters contributed reporting.




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