[A]s Gov. Phil Scott said he wouldn’t sign tax and regulate marijuana legislation without a provision allowing for saliva testing for motorists, a House panel got its first look a proposal that would permit that to happen.
The Republican governor said for the first time Thursday that he would only support a bill to legalize and regulate marijuana sales, if lawmakers also legalized roadside saliva testing.
For months, the governor has said that he would only support the legislation if lawmakers also invested in initiatives to bolster safety and law enforcement on the state’s roads.
In addition to legalizing saliva tests, which are opposed by many civil rights groups, lawmakers have mulled investing in additional drug recognition experts — law enforcement experts trained to detect impairment.
But on Thursday, Scott told reporters that additional DREs wouldn’t be enough to earn his signature on a tax and regulate bill.
“I’m not sure that DREs alone would do it from my perspective,” Scott said. “I think we need some sort of a saliva test, at least to detect THC.”
The House Judiciary Committee on Thursday looked at a draft proposal for language regarding saliva testing that could be inserted in S.54, a bill that passed the Senate earlier this session that sets up a system for tax and regulating marijuana in Vermont.
That tax and regulate legislation is currently being debated in the House Government Operations Committee.
However, that panel has referred a saliva testing provision to the House Judiciary Committee for review. The requirement was not included in the version that passed the Senate.
“This is not part of the bill, but Government Operations is interested in having our input on highway safety,” Rep. Maxine Grad, D-Moretown, the House Judiciary Committee chair, said as the panel began its review of the draft proposal Thursday.
The House last session passed a saliva testing bill, however, it failed to make it out of the Senate Judiciary Committee.
Earlier last session the Legislature passed and Scott signed a bill that legalizes the possession of up to one ounce of pot and the cultivation of two mature and four immature marijuana plants. That bill became effective July 1, 2018.
Supporters of saliva testing say it is necessary to keep drug-impaired drivers off the road. Opponents of saliva testing say it is overly invasive as well as inaccurate — the testing would indicate the presence of drugs, but not impairment.
Saliva testing has faced opposition from the Vermont chapter of the American Civil Liberties Union and the Vermont Defender General’s Office, who have talked of court challenges saliva testing would face if the results were attempted to be introduced into evidence in specific cases.
Members of law enforcement has been among the biggest backers of saliva testing.
They say saliva testing can provide “confirmation,” coupled with other evidence, such as a motorist’s performance on field sobriety exercises and observation of erratic operation of a motor vehicle, of whether or not a motorist may be impaired by a substance.
The proposed legislation presented Thursday, like the one debated last year, did not recommend establishing a “per se” limit, like the .08 threshold for alcohol, for THC, the active ingredient in marijuana.
However, unlike last year’s legislation, this year’s proposal calls for law enforcement to obtain a warrant, unless a person consented, to obtain a saliva sample.
The only way to test now for the presence of drugs in a driver believed to be impaired is a blood test, which also requires a warrant unless a motorists consents.
Supporters of saliva testing say the process for obtaining a blood test, which is taken at a hospital, takes much longer than obtaining an evidentiary saliva sample, which could be taken by an officer at a police station.
The proposed legislation also calls for establishing “expedited affidavits” as part of the process for requesting saliva testing warrants outside of regular court hours.
It sets up a system that calls for officers to send electronic affidavits to a judicial officer who would give law enforcement the approval to obtain a saliva sample from a motorist.
James Pepper, of the state Department of State’s Attorneys and Sheriffs, testified Thursday that he didn’t believe, based on past case law, that a warrant was required to obtain a saliva sample from a motorist suspected of impaired driving.
However, Pepper added, before such test results would be admitted into evidence in specific cases, he expected challenges from defense attorneys, with the Vermont Supreme Court ultimately being asked to weigh in and decide the matter.
“The first time you get an oral fluid and bring it into court, trying to use it in court, it will be a very intensive process,” he said.
Rep. Thomas Burditt, R-West Rutland, the House Judiciary Committee’s vice chair, said that during past debates regarding the decriminalization and later legalization of marijuana there have been calls for a test for suspected impaired drivers for cannabis.
“This goes a lot further,” Burditt said of the proposed legislation presented Thursday that could allow for the detection of a whole host of substances, including prescription drugs.
“I just want to point this out now,” he said. “I have a real problem with this being so broad, and not zeroed in on cannabis.”
The House Judiciary Committee is expected to continue hearing testimony on the legislation next week.
