Dave Silberman: Don’t politicize traffic safety

Editor’s note: This commentary is by Dave Silberman, an attorney and pro bono legalization advocate in Middlebury. This column does not represent the views of any client. You can find him on Twitter at @DaveSilberman.

Gov.-elect Phil Scott has consistently pointed to roadside safety as the top area of concern he has with cannabis legalization. To Mr. Scott’s credit, drugged driving is a serious issue, requiring serious people to put electoral politics aside and focus on effective solutions. However, as we learned in legislative testimony this fall from traffic safety experts at the Agency of Transportation, the Vermont State Police, and the Department of State’s Attorneys and Sheriffs, drugged driving is an existing issue that is both unrelated to the potential of legalization in the future, and much wider than cannabis alone.

The Joint Legislative Justice Oversight Committee first heard that message from Chris Cole, the secretary of transportation, on Oct. 24. Secretary Cole informed the committee that Vermont is seeing an increasing number of drivers impaired by various drugs, including prescription drugs. This, Mr. Cole said, has “nothing to do” with legalization (since that has not yet happened), but is instead reflective of much broader trends. He urged the committee to address the drugged driving problem whether or not it goes ahead with legalization. Noting that Vermont has a very high number of current users (over 100,000 Vermonters use cannabis at least once a year, according to the National Survey on Drug Use and Health), Mr. Cole testified that it is “unlikely” that legalization will cause these users to change their current driving behavior.

On Nov. 15, the committee took more testimony on drugged driving, this time from Lt. John Flannigan of the Vermont State Police, Greg Nagurney, the traffic safety prosecutor at the Department of State’s Attorneys, and Scott Davidson, the chief of the Governor’s Highway Safety Program and a 25-year veteran of the Burlington Police Department. All three of these dedicated public servants echoed the earlier testimony from Mr. Cole, saying that drugged driving must be addressed separately from legalization. They offered several specific proposals to do so:

• Provide intensive “Drug Recognition Expert” (DRE) training to 10 additional law enforcement officers statewide, to bring the total to 50;
• Provide “Advanced Roadside Impaired Driving Enforcement” (ARIDE) training, a 16-hour course lead by certified DREs, to as many as 50 percent of all law enforcement officers statewide; and
• Establish an in-state toxicology lab, to reduce prosecutorial hurdles currently created by sending DUI blood tests to a Pennsylvania lab.

Importantly, these traffic safety experts warned the committee not to set an “arbitrary” limit for the amount of THC present in a driver’s blood or saliva that would, by itself, constitute legal impairment. While positive THC test results are reliable indicators of past use of cannabis over the previous days or weeks, Mr. Cole testified, the presence of THC in a driver’s system does not necessarily indicate current impairment. Mr. Nagurney, the DUI prosecutor, added that “there is no scientific consensus” on what level of THC constitutes impairment (and thus a “per se” limit would be inappropriate), but went on to say that the presence of any level of THC can be presented to a jury alongside observational evidence from the DRE/ARIDE-trained officers to establish a compelling overall picture of active impairment.

While positive THC test results are reliable indicators of past use of cannabis over the previous days or weeks, Mr. Cole testified, the presence of THC in a driver’s system does not necessarily indicate current impairment.


This testimony is consistent with the picture painted by Colorado and Washington officials in testimony given during the legalization debate in early 2016. In those states, the number of positive THC tests (at limits well below those states’ arbitrary legal “impairment” limit) did increase following legalization, but the number of traffic accidents, injuries and fatalities did not. Indeed, it should not be surprising that positive results indicative of past use (but not current impairment) have inched up along with the moderate rise in responsible post-legalization adult use (notably, teen use has not increased) and the sharp rise in the number of police officers in those states trained to recognize, stop and test suspected drugged drivers.

Following the launch of an extensive public education campaign aimed at reducing drugged driving, DUI citations in Colorado began to decline in late 2015, indicating that a comprehensive solution requires educating the public about drugs and safety, not just scaring it about legalization. Meanwhile, recent analysis by Cowen & Co., a Wall Street investment management firm, reports that legal adult-use cannabis is “weighing on beer category trends” in Colorado, Oregon and Washington, suggesting a potential offsetting traffic safety benefit as consumers shift away from alcohol: drunk driving is responsible for nearly 10,000 traffic fatalities nationwide each year.

Gov.-elect Scott can demonstrate his seriousness on the issue, and that he is not politicizing drugged driving in order to quash legalization – all while sticking to his core campaign message of holding the line on spending – by prioritizing road safety within the existing law enforcement budget. As he plans his budget requests, Mr. Scott should provide law enforcement with the tools they need: DRE/ARIDE training and an in-state toxicology lab. But the incoming administration should go further, and fund a public education campaign on drugged driving, similar to what Vermont already does with respect to seat belt use. If legalization can provide revenues to help fund these priorities, all the better, but we should not falsely tie one to the other for political purposes. The public’s safety is too important to treat like a political punching bag.

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  • I appreciated this thoughtful commentary by David Silberman. However, I’m perplexed by the author’s focus on Governor-elect Phil Scott as the impediment to legalization when his own parties Attorney General-elect TJ Donovan has similar views as Governor-elect Phil Scott. Indeed, while the legislative testimony cited was enlightening it would be helpful if Mr. Silberman would first get his own parties players on the same page before aggressively targeting our soon to be new Governor.

    • Scott Pavek

      This doesn’t need to be a partisan issue and Scott’s leadership on this topic will be critical. He would veto relevant legislation, not TJ Donovan. Does Mr. Silberman work for the Vermont Democrats? There’s no reason his focus ought to be limited to any particular party. I think it is appropriate for voters to address their concerns to our Governor-elect.

      • Mr. Pavek: Mr. Silberman’s continual critique of Mr. Scott has historically been very partisan. This commentary relates to one issue but Mr. Silberman has been a fierce and loyal defender of the democratic mantra and banter on social media much of which resembles fiction. Nonetheless, Vermonters will accomplish more by prioritizing our urgent needs given the short legislative window while being honest that democrats also have expressed similar concerns as our Governor-elect on the issue of legalization as TJ Donovan has. Best wishes!

  • Karen Zucker

    Regular pot smoking does not impair you. I think you should just leave it alone. Anyone who smokes weed and is not comfortable with driving simply doesn’t do it!! People smoke weed on their way to work everyday!! Do they cause accidents? No. If you are driving and following the rules of the road, what is actually the problem? If you have never smoked weed your opinion is not valid.

    • David Cahill, Windsor Co State\’s Attorney

      A meta-analysis of 9 separate motor vehicle lethality studies from 1982-2007 was published in the British Medical Journal in 2012 (Asbridge, et al, BMJ 2012; 344: e536). That meta-analysis found that motorists with any detectable amount of active THC in their bloodstream were, on average, 1.9 times more likely to be the at-fault operator in a fatal collision as compared with drivers with no detectable amount of active THC in the bloodstream. Similar meta-analyses have been conducted for any detectable amount of alcohol (9.4 times as likely) and any detectable combination of active THC and alcohol (14.1 times as likely). The science indicates that our roads would be safer if motorists simply refrained from consuming alcohol, opiates, cannabis, or any combination thereof, during the hours before driving. Many prefer to ignore this conclusion because, frankly, it puts a damper on Friday night fun and requires that we acknowledge the selfish decisions we make when we get behind the wheel.

      • Dave Silberman

        This thread illustrates well the need for the state to engage in an effective (and evidence-based!) public education campaign on drugged driving, so that the nearly 15% of Vermonters who will consume cannabis in 2017, and the many many more who consumer other prescription and non-prescription drugs, are aware of the risks of getting behind the wheel. Mr. Cahill, I’ve seen the BMJ study, I would urge you to look at the 2016 meta-analysis by Rogeberg & Elvik published in Addiction, showing cannabis increases crash risk by about 30% rather than the Asbridge 92% figure — but, either way, we must recognize that this is an existing problem, and holding a solution hostage to the legalization debate, and vice versa, is playing politics, rather than advancing the cause of public safety. Kudos to the Dept of States Attorneys, the AoT and the VSP for recognizing that in their testimony to the Joint Justice Oversight Committee this fall. let’s come together to advance solutions.

        • Mr. Silberman: While this thread has been constructive and you have contributed to that constructive dialogue in this one instance, the historical record of your rhetoric on Twitter often targeting Governor-elect Phil Scott, his campaign staff and his supporters evidences why when speaking of playing politics its probably best to look in the mirror before casting blame on others.

          Mr. Cahill has been leading by example for sometime and has been earning respect from all corners of Vermont in his service to Vermont.

          • Scott Pavek

            Thomas, why is it necessary to bring this up now? What does this add to the discourse? If you agree with the point of the commentary, and if Dave has encouraged an ongoing, evidence-based dialogue with Mr. Cahill (the two seemingly have the same interests in mind), then what do your comments add to this discussion?

            You keep introducing Dave’s social media activity – how does this enrich our dialogue? What bearing does this have on the actual argument, here?

            The title of this op-ed encourages us not to politicize the issue at hand – so why did you introduce party labels in your initial comment?

            Best wishes.

    • Peter Liston

      “Anyone who smokes weed and is not comfortable with driving simply doesn’t do it!!”

      We’re talking about the people who smoke weed and DO feel comfortable driving. Nobody should ever feel comfortable driving while stoned.

    • “People smoke weed on their way to work everyday!!”

      WOW!!! What an astonishing statement. If this the case, those people had best not be employed in a manufacturing facility, in construction, or in any occupation working around dangerous equipment. If an accident occurs due to that employee being under the influence, that employee will be in deep dodo. And Karen, there is a reason why many employers now require a drug test before being offered employment.

      And for your own education, this is how long weed stays in your system.

      • michael olcott

        if VT’s factories all did a surprise drug test tomorrow and fired all who failed there would be many that were closing their doors. i worked in manufacturing for about 17 years,many different types of factories, every place i worked there were stoners. tbh i felt more in danger around the people who were hungover and over tired from drinking half the night before or out chasing skirts. companies require drug tests for eligibility for federal contracts and to cta on insurance, otherwise most employers care if you showed up (on time) and were competent at the job, not what you were taking.

        • “companies require drug tests for eligibility for federal contracts and to cta on insurance, otherwise most employers care if you showed up (on time) and were competent at the job, not what you were taking.”

          That’s not factual at all. The manufacturing facility I worked at for 30+ years had nothing to do with federal contracts. Employers require drug testing due to stricter government and employer safety requirements and increasing liability issues. If and employee become injured (or worst) on the job due to a fellow employee being under the influence….all hell breaks lose for that employer. Sure, employees come into work not in the best of shape at times. Those type of employees eventually get lead out the door if the issue persist. Employers today, can ill afford to keep around employees who are more likely to causes employers headaches that opens that employer to investigations, filling out tons of paperwork, and other unpleasantries.

  • Roger Bombardier Jr.

    Best way to commit a murder and get away with it in the USA. Kill the person with your car and claim it was an accident (insert excuse here). You’ll probably get away with it because of our love affair with the automobile. As was demonstrated recently you can even run into a mail man just because you’re distracted by yakking with your car mate and you’ll get away without consequences.

  • Mark Keefe

    One way to save some money is to scrap the new automated inspection program currently set to role out in March. This program will add 7 million dollars of cost to Vermonters. No savings at the state level. Force smaller shops to stop doing inspections because they need to buy over $1600 dollars of hardware, have internet access in their garage, and pay an additional two dollars plus per inspection. There is no data that supports this change. Half of the states have no inspection requirement and our accidents from malfunctioning equipment are “average” compared to the rest of states. This is bad policy in the making. Stop this change before it is too late.

    • Mark,
      I couldn’t agree more. At a time when only 19 states continue to require regular vehicle inspections and several of those 19 are considering getting rid of inspections, Vermont is requiring the purchase of expensive equipment by those who will continue to do inspections. This will, of course, raise the cost of getting a sticker. I couldn’t believe it when my car failed the inspection because my tire monitoring sensors didn’t work and I had to spend hundreds to get them fixed. What’s wrong with a tire gauge. What about a single mother who needs a car to get to work but can’t afford to repair the sensors, not because the tires are low, but because sensors are broken? The legislature needs a lesson in common sense.

  • rosemarie jackowski

    Suspend the drivers licenses from all who use cell phones while driving. Distracted driving kills. The roads belong to all of us. Those who cannot resist being distracted while driving should be kept off the roads. I was rear-ended by a speeding dump truck loaded with logs while I was stopped in a line of traffic. The truck was owned by the State of Vermont. My car was totaled. My back was broken. The driver hit others before and after he hit me. Nothing happened to him. My life was changed forever. Did you know that the State of Vermont has no insurance?

    Drunk drivers should lose their license for at least 25 years.

  • Pete Novick

    As of today, it is legal for adults to posses and to grow limited amounts of marijuana in Massachusetts, which joins Maine as one of the first two states east of the Mississippi River to legalize marijuana for recreational use.

    The citizens of Massachusetts made this decision themselves, voting for legalization on Question 4, a ballot initiative put before the voters on November 8, 2016.

    There is little doubt that, if Vermont had a ballot initiative, which would involve changing the Vermont Constitution, recreational use of marijuana would be legal here as well.

    “May I have permission to search your car?” said the Vermont State trooper to the driver he pulled over just north of the Massachusetts line.

  • Ed Wood

    To suggest that legalization of pot doesn’t increase drugged driving is a fairy tale. Unfortunately, solid proof of the contrary is lacking because neither Colorado nor Washington record drugged driving separately from drunk driving. More’s the shame, since the Governors Highway Safety Association strongly recommends all states take this obvious measure to gain real data on drugged driving, rather than relying on myths and fairy tales.

    But lacking solid proof, we ask officers and prosecutors what’s happening. Anecdotally, the evidence is strong that legalization sharply increases drugged driving, as expected.

    To believe that access to pot reduces drunk driving is a real stretch.

    Any society that legalizes an impairing substance without first having in hand a means to identify, measure and prosecute drugged driving is either irresponsible or criminal.

    • Dave Silberman

      Mr. Wood, this is factually inaccurate. Colorado and Washington do indeed break down drugged driving statistics by intoxicant. We have the data, and it is as I described it in the article.

      You may wish to ignore the data in favor of hand-selected anecdotes, but Vermont’s own traffic safety experts (prosecutors, police, etc.) aren’t — they see what’s going on today, while cannabis is still illegal, and are saying loud and clear that this problem needs to be addressed separately from the legalization question.