Saliva Testing Round II: Second House panel weighs legal challenges

By Alan J. Keays, VTDigger.org

A second House panel started taking testimony Wednesday on a bill that would allow for saliva testing to detect the presence of drugs in motorists, hearing talk of legal challenges and suggested changes to safeguard the legislation.

“I’m confident it will be hotly litigated,” Vermont Public Safety Commissioner Thomas Anderson, a former federal prosecutor and backer of the saliva testing legislation, told members of the House Judiciary Committee.

“With Vermont being on the cusp of legalizing marijuana, it’s an opportune time to be discussing collectively what we can do to improve roadway safety,” he said. “Driving is a privilege, it’s not a right, and the state can legislatively put conditions on that right.”

The public safety commissioner added, “I think Vermonters rightfully expect as part of the legalization of marijuana that we are going to do all we can to stop people and arrest people that are driving impaired by alcohol, drugs or marijuana.”

In testimony earlier this session before the House Transportation Committee, both the American Civil Liberties Union of Vermont and the state Office of the Defender General have said they expect to challenge the legislation, should it become law.

The House Transportation Committee ultimately approved the bill, H.237, by a vote of 10-0-1. The full House by a voice vote last week referred the legislation to the House Judiciary Committee for further review. That panel is taking testimony this week.

Debate on the bill follows the passage last month of H.511, legalizing the possession of up to one ounce of pot and the cultivation of two mature and four immature marijuana plants. That bill becomes effective July 1.

On Wednesday, Rep. Tom Burditt, R-West Rutland, a House Judiciary Committee member, asked Chloé White, policy director at the American Civil Liberties Union of Vermont, if a change could be made to the bill that would lead to her organization’s support for the legislation.

Burditt suggested including a provision requiring an officer to obtain a warrant before saliva testing a motorist for drugs.

“I think it would ameliorate a lot of our concerns,” White responded.

Currently, the legislation does not include such a warrant provision. A warrant is required to obtain a blood sample from a motorist, but not for a breath test.

Anderson, the public safety commissioner, agreed Wednesday that the matter of whether a warrant should be needed by officers to obtain an evidentiary saliva sample from a motorist is an important issue.

“That determination should be done the by courts,” Anderson told the committee.

At this point in time, he said, the only way to test for the presence of drugs in a driver believed to be impaired is a blood test, a time-consuming process often administered well after a traffic stop. If a warrant were required for saliva testing, similar problems would arise, Anderson said.

In addition to determining whether a warrant would be needed to obtain an evidentiary salvia sample, it’s also expected that the admissibility of the results will ultimately need to be decided by a court, he said.

That court process could take a year or more before final rulings by the Vermont Supreme Court, he said.

Anderson also reiterated testimony he previously provided to the House Transportation Committee. He urged the panel to approve the legislation providing law enforcement officers the means to use saliva testing on drivers “reasonably suspected” of being drug-impaired.

Anderson told members of the House Judiciary Committee on Wednesday that a non-evidentiary roadside 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 roadside saliva test are positive for marijuana, or a series of other drugs, including opioids, an evidentiary saliva test would follow. That “confirming” test would be sent to the state laboratory for more detailed results.

Anderson told the committee that there is no scientific standard, or per se level, for determining impairment based on detectable levels of THC, the active ingredient in marijuana.

“I think the thinking that we have to have a per se level of marijuana is the wrong way to think about this,” Anderson said. “It’s a combination of all the evidence: the officer’s observations, a person’s speech, how they did on dexterity tests, and an evidentiary sample.”

Anderson, a member of the Governor’s Marijuana Advisory Commission and the Governor’s Opioid Coordination Council, said both panels advocate for the need for a saliva test to help detect drugged driving.

Opponents of the saliva testing bill argue that while the results show the presence of drugs, they don’t prove impairment.

White, of the ACLU, also told the House Judiciary Committee on Wednesday that the procedure to obtain saliva is more “bodily” invasive than a breath test used to detect alcohol levels for motorists.

“In an age of this creeping government and private sector intrusion we think we should reject the normalization of another bodily invasion test,” she said.

To address highway safety, White said the state already has effective tools to determine a motorist’s impairment. Those tools, she said, include field sobriety tests.

“It’s been used for decades to address impaired driving, it’s proven to be accurate and effective,” White said. “We think it’s an appropriate screening tool for individuals suspected to be under the influence of THC, with or without alcohol, and it focuses on actual impairment.”

Also, she said, while the legislation doesn’t establish a per se limit for marijuana, the results will still factor into whether a person is charged.

“The per se limit here is anything,” she said. “Any sort of THC then will lead to, and be part of leading to, an arrest and that’s really worrisome to us.”

The committee is expected to hear additional testimony on the legislation through the week.