[A]fter Gov. Phil Scott said last week that he would not sign a bill to legalize a regulated market for cannabis sales unless lawmakers also approved roadside saliva testing, Democrats are signaling a new openness to the controversial drug test.
Some Democratic lawmakers are saying they are considering supporting saliva tests, as long as police officers are required to obtain a warrant before administering them.
The tests have drawn criticism from Democrats and civil rights organizations because while they can determine the presence of marijuana — or other drugs — in someone’s system, they cannot determine if someone is impaired at the time the test is taken.
A saliva testing bill passed the House last year, but died in the Senate where lawmakers opposed the tests because they lack a standard to detect whether someone is actually under the influence.
But the chair of the Senate Judiciary Committee, Sen. Dick Sears, D-Bennington, said Tuesday he would be open to compromising with the Scott administration on saliva testing as long as police were required to obtain a warrant to administer a test.
“I don’t see any way the Senate would support saliva testing without a search warrant,” he said.
Sears said there is room to negotiate with the governor if he is willing to entertain the need for a warrant. Sears is planning to discuss the possible compromise with his Senate colleagues in the “near future.”
Scott has long stated he would only support a legal market for cannabis if the state also made sizeable investments in roadside safety, and drug use prevention programs for children.
The debate, and Legislature’s ultimate decision on saliva testing, will be a key factor in whether the state sees a legal market for marijuana next year.
The House is currently considering adding the saliva test to the tax and regulate bill, S.54. That provision would only permit law enforcement officers to administer saliva tests if they are granted a warrant to do so.
“We’re working on seeing if we can do a saliva test as a piece of evidence when somebody has already been determined to be impaired,” Rep. Sarah Copeland-Hanzas, the chair of the House Government Operations Committee, said in an interview with VTDigger on WDEV Radio Monday.
Copeland-Hanzas said she would not want the tests to be administered unless police have evidence to suggest that a driver is impaired. Marijuana can stay in a person’s system for weeks, and tests can be positive for someone not under the influence.
“We certainly don’t want somebody who is recreationally using cannabis on the weekend to get snared in a roadside stop,” Copeland-Hanzas said.
She said she believes the best way to improve safety on the state’s roadways is to hire additional drug recognition experts: law enforcement experts trained to detect impairment.
There are currently about 50 DREs in the state and the governor said last week that increasing their numbers alone would not be enough to win his support on the tax and regulate bill.
Sen. President Pro Tem Tim Ashe, D/P Chittenden, said that at this time he does not support saliva testing, even if it comes with a warrant requirement. He said that senators “strongly believe there is no scientific basis for the swab tests that are being advocated for.”
“I think the Senate has been clear in the past, it does not believe we should do it,” he said.
But he didn’t rule out a possible compromise on saliva testing this session. “The challenge now is, is there any path to bridging the divide on this issue of roadside testing and I don’t know that there is one yet,” he said.
The American Civil Liberties Union, one of the most vocal critics of saliva tests, said that requiring warrants doesn’t go far enough. It is continuing to urge lawmakers to oppose the testing categorically.
“It’s a meaningless test and while we support tax and regulate, we at the ACLU don’t want to sacrifice people’s rights and people’s privacy just to get a tax and regulate bill through,” Chloé White, the ACLU’s policy director, said Wednesday.
