House Gives Preliminary Approval to Saliva Testing Bill

Following nearly 2.5 hours of debate, the House gave preliminary approval to H.237 a bill allowing police to drug test saliva during traffic stops.

The measure passed on an overwhelming voice vote after members adopted two amendments that did not substantially alter the legislation. The amendments add specific rule-making language related to the operation, maintenance, and use of the devices, and training for officers.

They also require that the accuracy of the devices deployed in the state be verified by at least two peer-reviewed studies.

Rep. David Potter (D-Rutland), the bill’s sponsor, acknowledged that the fate of such a law will ultimately be determined in the courts. He reiterated throughout the debate that the results of the saliva tests alone cannot lead to an arrest or conviction.

Impairment would still be determined by police officers trained as Drug Recognition Experts and the “totality of the evidence.”

“The courts will also determine the science,” he said during the debate, “Is this test reliable and is it a reasonable, accurate science? It isn’t you or I who that’s going to decide that, it’s the court system that will do it. We need to give them a chance.”

The tests “won’t be here overnight” Potter said, and projected that it would cost between $250,000 to $300,000 to outfit every police cruiser in the state with the saliva-testing technology, which, he said, would be paid with federal safety grants. He estimated it would be “about two years” before drivers would encounter the tests.

Rep. Selene Colburn (P-Burlington) pressed Transportation Committee Chairman Rep. Patrick Brennan (R-Colchester) about why the committee did not receive testimony from the National Highway Traffic Safety Administration on the devices.  Brennan said he did not know of “an up-to-date report” by the agency on the topic.

However, a report to Congress last year by the board titled “Marijuana-Impaired Driving” found that there were “issues distinguishing use versus environmental exposure.”

Studies have found saliva tests can detect cannabis from metabolites that are seven to 30 days old, Colburn said. That means positive tests of unimpaired drivers could be used as evidence against them.

Potter argued that without some sort of probable cause of suggesting impairment “the stop doesn’t happen in the first place.”

“If the person gets out of the car and does sobriety tests and passes them all, there’s not impairment, who cares what drug they are taking or might have used five days ago or anything else?” Potter contended, “The key to this whole process is you have to have a series of observations of impairment all the way down the line. This new technology is just adding evidence to help an officer decide if impairment is there.”

The measure still requires approval by the Senate and Gov. Phil Scott. Scott. The governor vetoed a cannabis legalization measure last year, in part, because of traffic-related public safety concerns.

The legalization bill signed by Scott in January includes increased penalties for cannabis “open container” offenses and creates new penalties for using cannabis in a motor vehicle with a child present.

It’s likely that the measure will face legal challenges if adopted. During testimony to the House Transportation Committee last month, Chloé White, policy director at the American Civil Liberties Union of Vermont, indicated the civil rights organization would challenge the measure if it’s approved.

The ACLU has raised a host of constitutional and privacy concerns related to the legislation, not least of which is that the state would be collecting DNA from motorists, creating the potential for abuses.