House Bill Proposes to Lower BAC Limit to .05 for Drivers With ‘Any Detectable Amount’ of THC

MONTPELIER, Vt. — At the conclusion of the second week of the new legislative session, the oaths have been sworn, the House and Senate Committees have been drafted, seating charts have been completed, new offices decorated, and draft legislation is beginning to appear online.

One of those drafts is H.24, a bill that was introduced by a bipartisan group of four representatives from the House Judiciary Committee and would, “propose to prohibit the operation of a motor vehicle by a person who has a 0.05 blood alcohol level and any detectable amount of the psychoactive constituent of cannabis in his or her body.”

Throughout the fall, the discussions of the influential Joint Legislative Justice Oversight Committee — which included Rep. Maxine Grad, House Judiciary Chair and a listed co-sponsor of the H.24 draft — illuminated the potential pathways for pot reform: a major medical marijuana reform bill would be hammered out in the Senate then crossover to the House, and at least one ‘legalization’ bill would originate in the House and address home grow, driving concerns and maybe even the initial framework involving regulated legal sales.

Earlier this week, Rep. Grad had spoken with the Barre-Montpelier Times Argus about her committee’s upcoming examination of cannabis policy, noting that she saw inconsistencies in criminalizing possession and cultivation, as well as acknowledging that minorities have been disproportionately impacted by drug charges resulting from traffic stops.

The other co-sponsors of the draft H.24 bill are three of Grad’s fellow House Judiciary Committee members, all of whom were also members of that same committee last year when the Senate-passed S.241 legislation stalled in their committee before being gutted and suffering a vivid and gory death on the House floor in the closing hours of the 2016 session.

Present for many of those hours of testimony in Montpelier, and a (usually uniformed and armed) presence at almost every public political cannabis event, the law enforcement community has dutifully worked to tie road safety and drugged driving issues to cannabis reform. 

Perhaps no scene embodied the apparently-successful inception better than at the Sheraton in South Burlington in mid-December, where outgoing Department of Public Safety Commissioner Keith Flynn hosted a “Vermont Drugged Driving Summit” to promote unproven saliva testing devices and the scourge of drugged driving in Vermont while standing in front of a banner that included a large pot leaf (and not a pill). 

Even though Flynn won’t be staying on as Department of Public Safety Commissioner under Governor Scott, it’s HIGHLY unlikely that his replacement will take a more progressive stance on cannabis reform. However, it’s VERY likely that law enforcement will continue to demand ‘drugged driving’ (there’s only one “drug” represented on that banner) crackdowns, more funding, and training as part of any cannabis-related reforms.

In draft form, the proposal itself evokes more questions than answers:

What is ‘any detectable amount’ of cannabis? How would an officer quantify THC levels without a reliable breathalyzer-type device? How would an officer test actual impairment? Would medical patients have different limits? is it constitutionally-allowable to give different BAC-standards to different populations of the citizenry? If a state trooper claimed he/she smelled marijuana in the car, he/she could issue a DUI to anyone who blows a .05 or higher? Could police arrest someone who blows a .06 on suspicion of impairment under cannabis?

VTDigger recently investigated drugged driving in Colorado, where reporter Elizabeth Hewitt examined some of those questions herself and relayed that, “three years into legalization, statistics show some increase in marijuana-impaired drivers. However, challenges with data collection make it difficult to know just how legalization has affected safety on the roads.”

As that story and others have noted, one strategy that other states have employed to discourage stoned driving is to create ‘per-se’ intoxication limits for THC and to enforce those laws similar to drunk driving. That practice has been widely criticized, including by law enforcement officials in completely cannabis-legal states, including Dr. Fiona Couper, of the Washington State Police Forensic Lab who last March told Grad and other VT lawmakers about her state’s per-se policy:

“The five nanogram per milliliter figure was just sort of thrown out there as a number, it really has no scientific basis…Washington State just picked five. I kind of wish we didn’t have it.”

In addition to the Washington State Police and sources ranging from the AAA’s safety foundation to the Arizona Appellate Court have argued against using per-se limits to determine impairment, it’s unlikely that per-se limits will exit the conversation completely.

The suggestion of using alcohol laws as a way to punish cannabis users is ironic for advocates who note the relative safety of cannabis compared to alcohol; However, for lawmakers, the lower BAC threshold for ‘any detectable amount’ of THC might seem to legislators like a political solution that pleases everyone:

Law enforcement gets a new way to crack down on cannabis users and address drivers and medical patients can’t complain about a per-se limit.

This early in the session, draft bills are more for creating starting points of discussions as they enter committees, so it’s far from a guarantee that this language makes it out of a single House Committee, let alone becomes law. However, considering how much time the sponsoring legislators have devoted to cannabis policy, and how much drugged driving has become a part of this discussion (despite assurances from these same legislators and Shumlin officials that drugged driving is a separate issue that shouldn’t be tied to cannabis reform), it’s an interesting and striking starting point.

The Joint Legislative Justice Oversight Committee Recommendations to the General Assembly regarding drugged driving, filed on December 21, 2016 – via VT Legislature website, view full recommendations here

Stay tuned to Heady Vermont, where we’ll be closely following ALL of the upcoming cannabis conversations from Montpelier and sharing information primarily via our facebook page, twitter feed, and via the Sunday Stash weekly newsletter. 

Editors Note: As we jump into a full session, a sincere thank you and kudos to our fellow a-political Vermonters working on the legislative council and committee staffs (respectively) who coordinate testimony, draft the legislation language, and — most importantly for those of you reading this now — post the documents online in a timely manner, so engaged citizens can stay informed.