Editor’s note: This commentary is by Allen Gilbert, who is the executive director of the American Civil Liberties Union of Vermont.
[T]here are two things you need to know about the saliva drug test proposal passed by the Vermont House last week.
The first is that the proposal was detoured around the committees that would normally deal with drug issues (the House’s Health Care or Human Services committees) and constitutional issues (Judiciary for the search and seizure aspects of drug testing). Instead, the proposal was sent to the House Transportation Committee, which normally deals with driver’s licenses, road construction, and bike and rail projects.
The second thing you need to know is that the proposal’s passage was akin to a hobo hopping on a freight train for a free ride. It was tacked onto a “must-pass” bill, the annual Department of Motor Vehicles bill.
These procedural oddities matter because the proposal hasn’t gotten the scrutiny most bills do – especially those venturing into new areas of specialized scientific knowledge, complicated law, and newly developed technical devices. “Go slow” is the usual advice given legislators facing such bills. That advice was ignored last week.
The ACLU raised concerns last year when the proposal was first floated as H.228. To its credit, the House Transportation Committee decided that the bill wasn’t ready for prime-time legislative review and that law enforcement needed to address a range of concerns.
Let the spit proposal rest for awhile, gather more ideas in public hearings, and bring back a new bill that’s more firmly rooted in science and effectiveness.
Law enforcement officials returned to the committee this year and said they had proof the saliva systems were accurate and efficient. Their report was based on a study conducted of 58 individuals – nine of them motorists who, suspected of impaired driving, were “voluntarily” asked to take part in the saliva test, and 49 subjects enrolled in a court-ordered substance abuse treatment program.
The saliva of these 58 persons was first analyzed by OF (oral fluid) machines for the presence of eight to 12 different “families” of drugs, including the psychoactive substance, THC, found in marijuana. The results, plus blood samples from the test subjects, were then shipped to a private for-profit Pennsylvania drug-testing company, NMS Labs, for analysis. The company concluded the spit tests were accurate.
The NMS Labs report contains several important caveats, however. “There is currently no Federally approved list of devices for use in law enforcement OF (oral fluid) drug testing as there is for breath alcohol testing devices,” the report states. Another caveat: “A limitation of OF is that drug concentrations cannot be related to a specific degree of impairment in the driver, nor can they be used to predict blood drug concentrations.”
Running tests to see if someone has any of a number of drugs in their system to get results that don’t necessarily relate to impairment just doesn’t make sense.
Everyone agrees Vermont’s highways could be made safer. But greater success could likely be achieved by better enforcement of the texting-while-driving ban or adjusting the state’s alcohol impairment level.
There’s also the issue of the privacy of the results. Usually the drugs you’re taking is information protected by federal medical records privacy laws; will police afford the same privacy to the drug records they collect?
After stories appeared last week on the saliva drug testing proposal, readers offered an array of ideas on how better to spend a quarter million dollars (the cost of the machines for all Vermont departments). A crowd-sourcing approach to the problem of road safety is not a bad idea. Let the spit proposal rest for awhile, gather more ideas in public hearings, and bring back a new bill that’s more firmly rooted in science and effectiveness.
If saliva drug testing is implemented, one thing is certain. Litigation around every aspect of drug testing will be filed. And we’ll all need a tutorial on how to respond if asked by a police officer to spit into a cup.
A final note: The U.S. Supreme Court held arguments last week on two challenges to the “implied consent” approach used by many states, including Vermont, to compel drivers to take drug tests or lose their licenses. The possibility Vermont will have to do a substantial rewrite of its drugged-driving laws would normally be reason enough to let things around drug-testing alone.
