Courts & Corrections

House panel explores roadside saliva testing

Vermont State Police
Law enforcement could take saliva samples from drivers to test for drugs under proposed legislation. Creative Commons photo by redjar
The House Transportation Committee is looking at legislation that would allow law enforcement to use roadside saliva testing to detect the presence of drugs in motorists.

The bill, H.228, would make saliva tests a part of roadside investigation for impairment. The proposal would amend the state law on breath testing for blood alcohol content.

“It’s all about giving law enforcement the tools that they need to keep our roads safe and at the same time making sure that it’s a reliable test,” said committee Chair Pat Brennan, R-Colchester, on Wednesday.

Brennan, also a co-sponsor of the bill, said his initial interest in the saliva testing technology was ignited in the context of the push to legalize recreational marijuana. However, he said, his thoughts on the need for the bill evolved as he learned the technology could be used to detect other substances, like opiates.

“I think it’s important that we’re able to test for those as well,” he said.

Critics of the bill raise concerns about the accuracy of the tests, as well as the more invasive nature of collecting a bodily fluid.

The bill proposes to expand Vermont’s DUI statute to stipulate that people are not permitted to drive when they have “any detectable amount of any regulated drug” in their body.

If the bill passes, police officers would be able to use the technology during traffic stops if they suspect a driver is under the influence of a drug. If the results come back positive, police would then call in a trained drug recognition expert.

Greg Nagurney, a prosecutor who specializes in roadside safety, said the effort to get saliva testers into use by Vermont law enforcement dates back several years. Officers could have the devices, which are roughly the size of a toaster, in their cars.

Nagurney said it would be useful for detecting marijuana but also for clamping down on driving under the influence of other substances like opiates. “Even if the marijuana bill didn’t exist this would be a very important bill to pass for highway safety,” he said.

The legislation would allow defendants to claim an exception for medications taken under a valid prescription.

Nagurney argued that drug impairment is different from impairment by alcohol. With alcohol, there is a “clear line in the sand” at which point a person is intoxicated. Current law marks that point at 0.08 percent blood alcohol content, though he noted there are recommendations to lower that level.

“It becomes more difficult with a random drug that somebody has used to say this is too much for that person,” Nagurney said.

However, the bill’s opponents say the technology is not accurate enough, and they raise concerns that the tests indicate the presence of drugs but not impairment.

Matt Valerio
Defender General Matt Valerio. File photo by Elizabeth Hewitt/VTDigger
Defender General Matt Valerio says that chemicals indicating marijuana use remain in the body long after the initial high wears off. Moreover, the amount of time that evidence remains in someone’s system varies greatly, he said.

Valerio said statistics show that highway fatalities have been on the decrease in recent years and that the decriminalization of marijuana in 2013 did not reverse that trend.

“We’re not addressing an existing problem,” Valerio said. “We’re kind of nipping around the edges as overall our traffic safety record and crime rate record in Vermont is very low.”

He also raised concerns that the bill would extend implied consent to saliva testing. Under Vermont statute, anybody who drives a vehicle is considered to have given consent to a breath test for alcohol.

But Valerio said the saliva testers are not like Breathalyzers but more like blood tests. Several court cases around the country are challenging the notion of implied consent.

The Vermont chapter of the American Civil Liberties Union also has questioned the use of the devices.

In written testimony to the House Transportation Committee, ACLU Vermont Executive Director Allen Gilbert had concerns that the bill could lead people to feel they must prove their innocence. He also raised concerns the saliva testing could morph into DNA testing, although the bill stipulates that the sample could be used only for determining the presence of a drug. Rules on retaining the samples would be the same as for blood samples taken for alcohol detection.

Brennan said if the committee opts to proceed with the bill, it will likely be as part of a miscellaneous bill pertaining to motor vehicle laws.

“We’ve heard both pros and cons, and I think it’s decision time,” Brennan said.

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  • John Jacobs

    A bill in search of a problem.

    How about fixing schools and taxes and then worrying about the small stuff?

    • John Greenberg

      John Jacobs:

      Thousands of people killed on our highways, thousands more injured and millions (if not billions) in economic losses from impaired driving is “small stuff?”

      • John Jacobs

        Yet there is no focus on enforcing the hands free cell phone bill which would no doubt save more lives and eliminate more accidents everyday.

  • Eric Davis

    On April 20, the US Supreme Court will hear oral argument in cases from North Dakota and Minnesota on the question, as put by the attorneys for one of the drivers involved, “Whether, in the absence of a warrant, a State may make it a crime for a driver to refuse to take a chemical test to detect the presence of alcohol in the driver’s blood.”

    While the cases before the Supreme Court involve drivers suspected of being inebriated by alcohol, the issues involving saliva tests seem to raise the same legal questions.

    Vermont’s Attorney General Bill Sorrell signed a brief organized by New Jersey, and endorsed by 17 other states, supporting the current policy of “implied consent” to blood tests, saying that policy appropriately balances the states’ interest in highway safety against the drivers’ interest in privacy. The US Department of Justice also submitted a brief supporting the states’ policies, arguing that states may impose criminal penalties for refusing to take a breath or blood test, as long as there is probable cause (bloodshot eyes, erratic driving, uneven walking, etc.) that the driver was intoxicated.

    At least four Supreme Court Justices thought this case was worthy of being put on the Court’s agenda, even though a ruling for the drivers from North Dakota and Minnesota could require many states to change their “implied consent” laws. The Supreme Court will likely issue its ruling in this case by late June or early July, and we will find out at that time whether the ND and MN drivers’ position will be supported by at least five justices. (If the court were to split 4-4, the drivers’ convictions in the state courts would be upheld.)

    In any case, while a Supreme Court decision in favor of the drivers may be unlikely, it would probably be prudent for the Vermont Legislature to hold off on action on saliva tests until next year, after the Court will (if a majority of at least five justices can be assembled) presumably clarify the law on chemical tests for drivers suspected of being impaired.

  • Dave Bellini

    This bill will create more problems than it will solve. People will be forced to disclose their personal health information in many circumstances. If they are on a legit prescription that is legal why should they have to tell the criminal justice system?

    • Jamie Carter

      They don’t, they just wouldn’t be able to drive.

    • Bob Orleck

      Excellent point. Would definitely be a violation of HIPPA.

    • Pat McGarry

      Dave- they don’t have to tell the government anything. They may decline to drive, if they use certain prescriptions.

  • David White

    So just to be clear, as long as you have a prescription you can drive as much as you would like ? This makes absolutely no sense at all.

  • barry Kade

    Being able to discover “any detectable amount” can not be equated with discovering impaired driving. If the saliva testing device yields simple “yes” or “no” results, it is an impermissable invasioni of privacy. In many instances it would turn a cops reasonable suspicions into a conviction. Back to the drawing board, please.
    It would make a lot more sense to arm the police with a device that can actually tests a person’s reaction time. It is driving while impaired that should be the crime, whatever the cause.

  • Jason Wells

    Wow am I the only one who is starting to feel the boot of the govt. push harder and harder on my neck with each bill they pass? Any detectable amount? Can they not see the absurdity in that I mean really the obvious implications of such language were apparent in my first glance at the bill. Note to those who had a percacet after their root canal “you will be charged!”.

    • Jamie Carter

      “Note to those who had a percacet after their root canal “you will be charged!”.

      It states right in the article………. there is an exemption for a valid prescription so you will not be charged for a perc that was prescribed to you.

      • Jason Wells

        Umm ya sure you can “claim” an exemption. Good luck getting that figured out before your hauled of to the station, have your car towed and interrogated. These roadside test are not advanced enough to tell what type of opioid is in your system. Nor is there any reason for them whatsoever. If a police officer is incapable of determining if someone is unfit to drive via questioning and or passing a standard field test they should be free to go and we should be looking into failures at the police academy.

        • David White

          you forgot strip searched, your car impounded, you house searched, and maybe they will take your children away.

          • Pat McGarry

            strip searched? not for a misdemeanor. DUI

      • Rich LaRouche

        So now we have to carry our meds with us at all times risking theft or muggings. Great

  • Bob Orleck

    Quotes from the article “Nagurney argued that drug impairment is different from impairment by alcohol. With alcohol, there is a “clear line in the sand” at which point a person is intoxicated. Current law marks that point at 0.08 percent blood alcohol content, though he noted there are recommendations to lower that level. “It becomes more difficult with a random drug that somebody has used to say this is too much for that person,” Nagurney said.”

    “Defender General Matt Valerio says that chemicals indicating marijuana use remain in the body long after the initial high wears off. Moreover, the amount of time that evidence remains in someone’s system varies greatly, he said”

    What will be the purpose of such a test if you cannot pin a level where a charge can be made that a person is driving impaired? Sounds as if the only value if it is a value at all will be to know if anyone who has used marijuana in the last two weeks or whatever the detectable period is. What difference will that make if adult use is legal? There will be no sense to spend the money for detection equipment, training, legal challenges with no value to public safety being realized.

    This proposal sounds like a headline smokescreen to obfuscate the issue for those who don’t read the details that reveal that such testing will be of no value in reducing the marijuana impaired drivers on the road. We can make believe that we have the technology and put another worthless law on the books and pretend it does the job. Sounds like a chapter that Senator Benning could add to his next book of fiction.

    No matter what is done, the legalization of marijuana will only make the job of law enforcement more difficult. Just another good reason why to not pass this legislation and especially why not to establish stores to sell this drug.

  • “The bill proposes to expand Vermont’s DUI statute to stipulate that people are not permitted to drive when they have “any detectable amount of any regulated drug” in their body.”

    Any detectable amount? In that case, alcohol testing should be .00 not.08…what a double standard! Besides someone can have a detectable amount with out being impaired.

  • Jamie Carter

    If vermonters want marijuana to be legalized there has to be a roadside test of some sort. Here it is, get behind it or say good bye to legalization of marijuana.

    Not too mention the opiate portion. A cop pulls over a car with 3 children in the back, finds out mom’s system is full of opiates. Checks with the pharmacy and finds no prescriptions were issued to her. Now 3 children don’t have to live with an addict any longer and there’s one less addict on the road. Sounds like a good compromise for everyone. We have a test so we can legalize weed and another tool to fight the destruction of lives caused by opiods.

  • Rich Lachapelle

    This could get complicated with the number of opioid junkies in Vermont on legally approved “medication-assisted treatment” with some or many using illicit opioids on the side. Their saliva would be a real salad bar of opioids and of course they would get a pass from the courts because they have a “disease”. To have a zero tolerance policy for these substances would fill our court dockets to overflowing. Instead of the increased invasiveness of testing bodily fluids, we should go back to the basic field dexterity testing with body cameras for documentation. With too many drugs in common use, either legal or illicit, it is not clear whether they should be considered as a cause of impairment in small amounts and what level would be considered dangerous as this varies widely by individual. Basically, if you can walk toe-to-toe in a straight line and tilt your head back and touch your nose you should be good to go. At this point, drivers distracted by electronic devices seem to be a bigger threat to highway safety.

  • Homer Sulham

    Sounds like it will create very large DNA data base.

  • Rich LaRouche

    I hope the state has deep pockets because wrongly accused people will sue. You need a warrant to get people’s dna that’s the law.
    Keep harassing people and see how fast you get voted out

  • Don Peterson

    In practice it would go like this: the police pull you over for a broken taillight. You have a script for a regulated drug. They test you positive. A citation is issued. You have to call someone to drive you home and have your car towed. $$ You have to take a day off from work to attend court. $$. A lawyer is required. $$ In the end, you are innocent, but so what? You’ve spent the money, which is how justice operates now.

    I doubt this test is ready for prime time, but that’s Vermont!

  • Ruth Barton

    Just because a thing CAN be done doesn’t mean it SHOULD be done. This one SHOULD NOT be done!

  • During her testimony, the head of the Washington State Police Forensics lab said that she wishes her office had been consulted as she would NOT have recommended a per-say or numerical value for marijuana as part of their bill. When their police are saying that 5ng is a completely useless number and that right now there’s not a way to accurately quantify marijuana impairment…VT State police can–and do–already issue marijuana DUI in the state without a saliva test.

    • Pat McGarry

      Nevada uses 2 ng/ mL as a per se limit for THC and metabolites)- which is more reasonable that Colorado’s 5 mg/ mL limit.

  • Pat Brennan

    This is a classic case of an uninformed public ,most of the commenters have about one half of the information on the issue. It’s a complicated issue . It does not convict someone at roadside for any detectable amount ,it only determines that the presence is on board which may then require a DRE ( drug recognition expert ) to be called to the scene to determine if the person is impaired .if so then a trip to the station or hospital for further screening or a blood work is in order. No DNA is saved from a roadside test .keep in mind it is currently against the law to drive while under the influence of prescription drugs if impaired.Another stat for those who may think this is a non issue ! Half of traffic fatalities involving impairment ,were drug related last year alone.

    • Pat McGarry

      Pat- Vermont’s implied consent law does not apply to roadside tests (whether a chemical test, or a field sobriety test), simply to a test administered after arrest for DUI. See State v. Farrow 2016 VT 30 for a recent decision on point.

      If a defendant refuses all roadside tests, refuses to comply with a DRE, but consents to a blood and breath test, he’s complied with the implied consent law.

      Without any type of per se limit on blood levels of a drug, how is such a driver going to be convicted of DUI?