Vermont Looks at Ways to Test for Drugged Drivers

By DAVE GRAM | October 20, 2015

It’s common knowledge that driving with blood alcohol content higher than .08 violates the law. But with marijuana, things are a lot more hazy.

As Vermont and other states consider following the lead of Colorado and Washington state in legalizing recreational use, lawmakers want assurances there will be a way for police to check for stoned drivers.

“It is an issue we have to resolve, from my perspective, as well as we possibly can before we pass that legislation” to legalize marijuana, Vermont House Speaker Shap Smith said in an interview this past week.

Smith, who announced his candidacy in mid-August for the 2016 Democratic gubernatorial nomination, made known about two weeks later that his position had evolved from undecided to in favor but with the caveat about impaired driving.

Both Vermont State Police Lt. John Flannigan, his agency’s point person for enforcement against drugged driving, and Glenn Davis, highway safety manager with the Colorado Department of Transportation, said law enforcement has tools to check for stoned driving, including a class of instruments that take a saliva sample and check it for the presence of drugs.

But they are not considered as tried-and-true as the breath-testing equipment used to check for alcohol impairment.

“We’re really good with alcohol; it’s been around a long time,” Davis said. But there’s much less certainty that a set amount of marijuana in the blood stream demonstrates impairment. When it comes to a scientific consensus on what counts as impairment, “We just don’t have that for marijuana,” Davis said. “I think we have things in place but I think there’s more work to do.”

Flannigan said his agency is set to announce the results next month of a pilot program that has tested two devices that use saliva samples to check for marijuana and several other commonly abused drugs.

On the overall state of the art, Flannigan said, “I think we’re very close” to being able to offer the sort of assurances Smith and other lawmakers are seeking. Preliminary results are showing “there’s some pretty good data coming back that there’s a high reliability for many of the drugs that it’s testing for.”

Flannigan and Davis said the tests are part of an evidence collection tool kit that also includes an officer’s observations of the driver. States including Vermont have been training some officers as “drug recognition experts,” who have special training designed them in part to make them more credible as witnesses in court.

Vermont Defender General Matthew Valerio said he is skeptical both of the testing equipment and the drug recognition experts. Of the latter, he said, “Every single time we have our experts lined up to challenge (the expert’s evidence), “the state folds and offers the defendant a plea deal he can’t reject or dismisses the charges,” Valerio said.

Allen Gilbert, chief of the Vermont chapter of the American Civil Liberties Union, said, “You do want to get somebody off the road who is impaired. The problem is this (saliva) test doesn’t even tell you if the person is impaired. It just tells you there’s a detectible level of one of the drugs for which the system can test.”

Others argued that being early in the development of tests and standards for using those tests should not be a reason to delay legalization. People already are driving stoned. Better to bring marijuana use out of the shadows, regulate it, tax it and use some of the money to help law enforcement improve detection tools, they say.

“In 1984, when I started practicing law, we didn’t have any such thing as a Datamaster test,” said Sen. Joe Benning, R-Caledonia, referring to the brand of alcohol breath tester used by police in Vermont. “And yet people were being prosecuted all the time for drunken driving.”

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