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.