House endorses bill allowing saliva test for drugged driving

By Xander Landen, VTDigger.org

The House gave its preliminary approval Thursday for a bill that would allow law enforcement officers to use saliva tests to screen drivers for marijuana and six other drugs.

Supporters of H.237 say the legislation would improve roadway safety, and is particularly important with the legalization of recreational marijuana set to take effect this July.

Opponents have called saliva testing intrusive and the methods inaccurate: while the tests can show the presence of drugs in a driver’s system, they don’t prove impairment.

In presenting his proposal, Rep. Patrick Brennan R-Colchester, argued the need for the saliva test is pressing.

“We have an opioid crisis, we have a drug crisis, we just legalized marijuana…we have no roadside test for drug impairment,” he said.

H.237 would allow police officers to request a saliva sample from drivers who they believe to be under the influence for a “preliminary” drug test during traffic stops.

The results of this initial test would be non-evidentiary, meaning its results would be inadmissible in court. However, if the results of a roadside saliva test is positive, an evidentiary saliva test would follow. That “confirming” test would be sent to the state laboratory for results.

The saliva test will be able to detect seven drugs including cannabis, cocaine, amphetamines, methamphetamine and certain opiates, sponsors of the legislation said. However, it will not be able to determine how much of a drug is in someone’s system at the time it’s administered.

Rep. Barbara Rachelson, D-Burlington, said that the test was not an effective way of determining whether someone was driving under the influence, because it could also detect drugs that stay in a user’s system long after their effects wear off. Marijuana for example, can stay in the body between seven and thirty days, she said.

Rachelson said the test would also detect prescription drugs, including amphetamines that some people take to treat attention disorders. “They’re going to have the blue strip go off when they’re tested,” she said, referring to the signal of a positive test.

Anne Donohue, R-Northfield, said she doesn’t believe the saliva test is reliable enough for officers to use in deciding whether to make arrests.

“I can’t support this bill because I think we’re using something of extremely limited value to make a decision that is significant in terms of our rights as citizens,” she said.

The American Civil Liberties Union and Office of the Defender General agree, and have said they will challenge the legislation in court if it becomes law.

The roadside saliva test would be no more accurate than the blood test currently administered for the same purpose, Public Safety Commissioner Thomas Anderson said during testimony on the bill. However, administering the blood test requires a warrant, while the saliva test could be given immediately.

Supporters of the bill stressed that the saliva test would not be the only factor that an officer would use in determining whether to place a driver under arrest. Police would also conduct a roadside sobriety test and rely on the analysis of a drug recognition expert.

“The key in this whole process is you have to have a series of observations of impairment all the way down the line and this new technology is just adding further evidence to help an officer decide if impairment is there,” said Rep. David Potter, D-Clarendon, a sponsor of the bill.

H.237 came before the full House Thursday after being approved by the House Committee on Transportation and the House Judiciary Committee. If the bill passes in a second vote on the House floor, it will move to the Senate.

Sen. Dick Sears, D-Bennington, chair of the Senate Judiciary Committee, previously said that if H.237 passed the House, he expects it to be sent to his committee or to the Senate Transportation Committee for review.

He said that while he was willing to take a “good hard look” at the proposal, he’s not inclined to support it.

“Someday I’m sure that there will be a test that determines a level of impairment due to the use of marijuana,” Sears said. “We’re not at that time.”