Law enforcement officials said the bill, H.501, simply lowers the standard of proof for drugged driving convictions to align it with that for DUI-alcohol.
The House passed the bill earlier this month. Rep. Dave Potter, D-North Clarendon, is the sponsor.
Vermont law has two standards for charging someone with driving under the influence of alcohol. There is a single, higher standard for DUI-drugs.
The DUI-alcohol standard is a .08 or higher blood alcohol concentration (or .02 for driving a school bus), or that a driver is “impaired to the slightest degree,” a standard set by the courts.
To convict a person of drugged driving, however, a prosecutor must prove a person was “incapable of driving safely.”
Prosecutors say DUI-drug cases are rarely won because that standard is nearly impossible to prove. As a result, many are pleaded down to a charge of negligent operation, which carries fewer penalties.
A defense attorney can say a client was on drugs and driving unsafely but unless a prosecutor can prove the person was incapable of driving safely, they can’t win a judgment, prosecutors say.
As Greg Nagurney, an attorney with the Department of State’s Attorneys and Sheriffs, explained the bill to the Senate Judiciary Committee on Friday, senators worried passing it could lead to more, perhaps uncalled for, drug tests for drivers.
“I think there’s a great deal of concern about what this bill might do to the average Vermonter who is not using any drug but is suspected of using drugs,” said Sen. Dick Sears, D-Bennington.
When a person is accused of drugged driving, he or she is often taken, handcuffed, in the back of a police car to a police station for evaluation, Nagurney said. The person is not necessarily given a blood test, but could be.
All officers have special training in detecting drug and alcohol use, Nagurney said, and clues in DUI-drugs cases are usually very straightforward.
“I don’t think there’s going to be many people who are fishing around for something in their purse and wind up getting a DUI-drug,” he said.
If an officer has evidence of impairment he can’t attribute to alcohol, he calls a drug recognition expert, Nagurney said.
First, the expert attempts to rule out other reasons for impairment, such as a medical condition.
Sears asked whether it could be held against a person if he or she refused a blood test as part of the evaluation by the drug recognition expert. Nagurney said he believed it could but the Vermont Supreme Court has not ruled on it.
“I guess what’s troubling is, we passed the alcohol test and then now we have to go through another test,” Sears said.
“I think, frankly, that’s reasonable if the suspicion is that you’re impaired by drugs, not alcohol,” Nagurney said.
Vermont State Police Lt. John Flannigan said that officers deal with someone who admits to taking prescription medication in the same way as someone who admits to having had a beer or two.
“That doesn’t mean that they’re under the influence,” he said.
The officer looks for red flags such as paraphernalia or drug containers in the vehicle. Other dead giveaways? A driver who vomits or hands the officer a credit card instead of a license.
“It’s the totality of the circumstances,” Flannigan said.
Sen. Jeanette White, D-Windham, worries that people could be charged unnecessarily.
“I think we’re creating a police state,” White said.
One in 10 drug recognition expert evaluations results in a determination of no impairment or uncovers a medical condition, Flannigan said.
The committee plans to take more testimony on the bill, from Defender General Matthew Valerio, among others.
Sears asked to see a video of the roadside stop and drug recognition expert evaluation process. He also said the effective date should be contingent on an increase in the number of drug recognition experts, suggesting it be 25 percent of all officers.
