Police push saliva test for drugged drivers; ACLU threatens to sue

By Alan J. Keays, VTDigger.org

Vermont’s public safety commissioner told lawmakers that legislation allowing police to use saliva drug testing is the most important measure they could pass this session.

A representative of the Vermont American Civil Liberties Union told the same panel that if saliva testing becomes law the organization will sue.

The House Transportation Committee is considering a bill, H.237, that would allow law enforcement to use saliva testing of drivers who are “reasonably suspected” to be drug-impaired.

The committee took no action Wednesday, and plans to take more testimony and look at making amendments to the legislation.

Thomas Anderson, commissioner of the Vermont Department of Public Safety, told committee members the saliva testing bill should be the committee’s highest priority.

“We’re on the cusp of (marijuana) legalization, for all of Vermonters’ sake we should be doing all we can to prevent people from driving impaired,” Anderson said.

Testimony on the bill follows the enactment last month of H.511, which legalizes the possession of up to one ounce of pot and the cultivation of two mature and four immature marijuana plants. The bill becomes effective July 1.

Anderson told the committee that the Governor’s Marijuana Advisory Commission and the Governor’s Opioid Coordination Council, both of which he sits on, advocate for the need for a saliva test to help detect drugged driving.

He said he expected to see an increase in both fatal and non-fatal crashes as a result of the legalization of marijuana.

Right now, the only way to test for the presence of drugs in a suspected impaired driver is a blood test, the public safety commissioner said. That process is time-consuming and often administered well after a traffic stop. A saliva test, Anderson said, can be administered immediately.

There is no scientific standard for determining impairment based on detectable levels of THC, the active ingredient in marijuana. As a result, Anderson said, he is not recommending establishing such a “per se” limit of THC at this time. The legal limit for blood-alcohol content is 0.08 percent for driving in Vermont.

Anderson said non-evidentiary roadside saliva tests would be one more tool for officers to determine whether a motorist is impaired and would be similar to field sobriety tests.

If the results of a roadside saliva test is positive for drugs, an evidentiary saliva test would follow and it would be sent to the state laboratory for results.

Whether that evidentiary sample ever makes its way into evidence inside a courtroom remains an open question. Anderson said the admissibility of tests will be for the state trial courts and the Vermont Supreme Court to decide.

“That’s going to take a year or two before ultimately it’s decided in court that it’s admissible or not admissible,” he said.

Anderson said saliva tests are approved in 14 states. But, how they are used in each state was not clear from testimony Wednesday.

Opponents of the bill said saliva tests overly invasive and expressed concerns that the tests show the presence of drugs, but not impairment.

Chloé White, policy director at the American Civil Liberties Union of Vermont, told the panel that the organization would sue if the legislation is enacted.

“As many policymakers, scientific and civil liberties advocates already said repeatedly in the past, there are multiple fundamental problems with roadside saliva testing,” she said. “Some studies have shown that THC can remain in a subject’s saliva up to eight days after their last exposure to cannabis.”

The procedure to obtain saliva “bodily” is invasive, she said. “A saliva test on the side of the road is much more invasive of privacy and bodily integrity than a breathing test, due to the physical removal of oral fluids and therefore DNA,” White said. “Even though the bill forbids the extraction of DNA, the removal is obviously accompanied by the removal of DNA.”

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

“The recently passed cannabis law is rather modest, with no taxed and regulated market,” White added. “There is no evidence or reason to think that this incremental bill will lead to increased incidence of impaired driving.”

Vermont State Police Lt. John Flannigan, commander of the Vermont State Police’s safety programs, walked the committee through a typical stop involving a suspected impaired driver and what it would look like if saliva testing were permissible.

“I think there are lot of folks that are hung up that these tests are showing impairment,” Flannigan said. “It’s not, it’s confirming impairment.”

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. A Drug Recognition Expert would also be called in to assist if impairment due to drugs is suspected, Flannigan said.

A saliva test, Flannigan added, can also detect substances other than cannabis, like opiates.

Pat Brennan, R-Colchester, chair of the House Transportation Committee, said Wednesday after the hearing that he expected the panel to approve legislation allowing for some version of saliva testing.

“It won’t look quite the same,” he said of the current bill.

Saliva testing legislation passed the House two years ago, but died in the Senate.