Vermont Lawmakers Weigh Roadside Spit Test to Detect Drugged Driving

Vermont is one of a growing number of states looking at following Colorado and Washington’s lead by legalizing marijuana, but there’s a problem. How can police identify those too stoned to drive?

The Vermont House Transportation Committee is considering a bill that would allow police to use newly developed machines that can test saliva for marijuana and six other drug classes, including opiates, cocaine, amphetamines, methamphetamines, methadone and benzodiazepines. Fourteen other states have such laws, and police would administer the test much as they do an alcohol breath test, Vermont officials said.

State Police statistics show that of the 44 traffic fatalities in Vermont last year, nine involved drivers impaired by marijuana and six involved drivers who were drunk.

“The tide has turned from alcohol-related fatalities to drugged-driving fatalities,” said state Rep. Patrick Brennan, a Colchester Republican who chairs the committee.

Critics of police efforts to charge people with driving while impaired by marijuana have long complained that blood tests could show evidence of use as much as 30 days before the driver is pulled over, meaning drivers who were not stoned but had smoked weeks before could end up charged.

Lt. Garry Scott of the State Police Crash Reconstruction Team said in an interview the new tests should put that concern to rest, because they test for only a short-acting component of marijuana and not the metabolites that stay in a person’s system for weeks.

Another concern with a drug test akin to what is used with drunken driving is that unlike the 0.08 percent blood-alcohol content standard used to prove drunken driving, there is no set level for other drugs at which one is deemed to be impaired.

Colorado uses a standard of 5 nanograms of marijuana’s active ingredient per milliliter of blood. But Lt. John Flannigan, head of the Vermont State Police barracks in St. Albans, told lawmakers recently that “those numbers are sort of arbitrary. There is no scientific evidence that says a certain level is causing impairment.”

The bill the committee is considering, House Bill 228, bans driving on a public highway “when the person has any detectable amount of any regulated drug.”

Both Scott and Flannigan said the focus should not be on the level of consumption, but on a totality of evidence. Officers are trained to look for and report the odor of intoxicants, slurred speech, bloodshot or watery eyes and other factors when determining if someone is impaired.

Allen Gilbert, executive director of the Vermont chapter of the American Civil Liberties Union, said the bill raises “some pretty serious constitutional questions … like search and seizure. You can’t just put a swab in somebody’s mouth and take something without a search warrant, generally speaking.”

Gregory Nagurney, the state’s traffic safety resource prosecutor, said the evidence-gathering parts of the process would parallel those used with drunken driving. If initial tests show a driver is impaired, the suspect is taken to the police office, where he or she is read constitutional rights, allowed to call a lawyer and then is asked to submit to an evidentiary collection of bodily fluids.