State senators Thursday struggled to agree on what the standard should be to convict someone of driving under the influence of drugs.
Senators have made it clear they do not want unsafe drivers on the roads, but they do not agree with the House version of H.501, which they view as a zero tolerance standard.
The Senate Judiciary Committee disagreed over how to adjust the drugged-driving bill and plan to consider a new draft Friday morning that will include a change proposed by Sen. Tim Ashe, D-Chittenden, to exempt people who are properly taking legally prescribed medicine.
Committee chairman Sen. Dick Sears, D-Bennington, said he believes Ashe’s proposal is headed in the right direction, but “at this point the committee is struggling with where the standard should be and I don’t have a definitive answer.”
Senators for several weeks have debated questions of civil liberties stemming from the proposed law.
They have heard from police, state’s attorneys, the American Civil Liberties Union, watched a training video about drug recognition exams and Thursday heard from a forensic chemist as well as the state’s defender general.
In addition to setting the impairment standard, Sears is concerned about when a roadside stop could lead to a driver being asked to take a 12-step drug recognition exam that could lead to a request for a blood test.
The committee heard prior testimony that drivers can be taken in handcuffs to a police station for testing. They heard from a man who was not on drugs but was asked to submit to the test. He was then released when he proved to be sober.
There is no penalty for refusing the drug recognition expert test, but there is for refusing a blood or breath test.
Sears said his worry is “that we not create a system where we’re going to have an overabundance of people who have proved that they are not intoxicated (by alcohol) now going through a drug test without signs that they’re impaired.”
The House version of the bill (which passed 138-2) lowered the drugged driving standard to align it with one of two standards for DUI alcohol: that a person is “under the influence.”
There is also a so-called per se standard for alcohol: a blood alcohol concentration of 0.08 or more. There is no per se limit in Vermont for drugs, although other states have set one.
The current standard for DUI drugs in Vermont is “under the influence … to a degree which renders the person incapable of driving safely.” Prosecutors say that standard is nearly impossible to prove and are pushing for this change to the alcohol standard.
However, the “under the influence” standard in the latest Senate draft means that a person’s “full mental or physical abilities are diminished or impaired to the slightest degree.”
Senators on Thursday worried this in effect creates a rigid standard for drugs, decoupling the fact that someone has a drug in their system from their ability to drive safely.
“You really are saying zero tolerance,” said Sen. Joe Benning, R-Caledonia.
Benning also argued that a defendant would have no way to defend himself if a prosecutor said he was under the influence. In the case of alcohol, the breathalyzer test results can refute, or confirm, that accusation.
Defender General Matthew Valero agreed, saying the “under the influence” standard creates a de facto zero tolerance standard.
Valerio also said drug recognition expert exams are a “very imprecise science” and their findings should only be considered when combined with observed impairment by the officer.
“It’s not just whether or not there’s some drug on board but whether or not that drug impairs their ability to operate safely,” Valerio said.
Valerio said it is acceptable to have two different standards for drugs and alcohol because all drugs affect the body differently.
Public Safety Commissioner Keith Flynn said “under the influence” is not the same as zero tolerance.
Impaired means diminished mental and physical capacities, a lesser ability to think and reason and use good judgment. he said. Police should not have to wait for drivers to be bumping into guardrails before pulling them over, he said.
“What you’re looking at is the effect that has on you, and it’s not always the effect of making sure that you keep it between the white lines, it’s what if the unexpected happens, what if a child darts out into the road, your reaction time is going to be impaired,” Flynn said.
Senators also discussed what would happen if a person was pulled over for a reason other than swerving, such as a burned-out tail light, then asked to submit to a test.
Two drug recognition experts, specially trained police officers, testified Thursday. Braedon Vail, of the Hartford Police Department, and Ron Hoague, of the St. Albans Police Department, explained that the exam is not done on the side of the road.
A roadside officer must have evidence of impairment then determine that the impairment is not due to alcohol, they said. After that, the officer calls a drug recognition expert, who conducts a brief phone interview with the officer to ensure he has enough evidence to merit a drug exam, then meets the officer at a nearby police station, the officers said.
“Are the officers in the field properly trained to make referrals to the drug recognition expert?” Sears wanted to know.
Vail and Hoague said every officer receives four hours of training at the police academy about drugged driving in addition to more extensive training on determining impairment.
The bill also calls for a report to the Legislature on the number of drug recognition experts needed to provide adequate coverage statewide.
The report must also include the number of motor vehicle stops by law enforcement in Vermont and accidents that occurred during that period in which the operator was suspected of driving under the influence of drugs.
It also asks for the number of times a driver who was involved in an accident or stopped by an officer was examined by a drug recognition expert and the number of times, after examination by the expert, that the operator was charged with DUI drugs or convicted of DUI drugs.
Sears said this bill is a priority this session, but it has taken up more time than expected and, as a result, the committee will not be able to consider several other House bills.
