Nitka’s notes from the State House for April 12, 2018

Dear Editor,

For several years, some members of the House of Representatives wanted to pass a law that would allow salvia testing for the presence of drugs that impaired persons while driving. There were skeptics that felt that it was not a reliable tool and there were concerns about DNA being taken from drivers. In November of 2016, the Legislative Oversight Committee received a requested report that reviewed enforcement challenges with regard to “Driving under the Influence/Drug Offenses.”

The report indicated that salvia testing was almost identical to breath testing in that it only requires the insertion of a small plastic swab into the mouth to collect the sample and a breath test requires the driver to insert a plastic tube into the mouth to provide the breath sample. The Supreme Court in a 2000 decision indicated that oral tests were equivalent to breath tests. The committee concluded that, “Oral fluid testing is a scientifically reliable means of determining the presence of drugs in impaired drivers” and that the Legislature should wholeheartedly endorse its use. They did note that a limitation of salvia testing is that drug concentrations cannot be related to a specific degree of impairment, nor can they be used to predict blood drug concentrations. Officers who are certified as drug recognition experts would still be needed in these cases, as the saliva tests are only one tool to be used.

With recreational marijuana use becoming legal on July 1, 2018 and the expectation that more people will be driving with marijuana in their systems, there has been an increased push for testing. There are already grave concerns about drivers with other drugs in their systems.

House bill 737 was introduced in 2017, passed the House this year, and is now in the Senate Judiciary Committee where it is being reviewed. It should be noted that should a driver be stopped, the roadside routine would be very similar to a DUI stop. Before a test would be given, there would need to a suspicion of impairment. The swab that would first be taken at roadside is not the swab that would be used as evidence. A second swab that would be taken at the station if the first gave an indication of use of drugs would be the evidentiary one. The roadside testing device cost is about $4,500 dollars and swabs are about $20 dollars.

The second test would be sent to the forensic lab and uses a more sophisticated swab than the first ones. More extensive testing of the fluid would be done there. It was pointed out, the test may well protect some drivers who may be driving as if impaired but could be having a medical issue that needs addressing. The roadside test swab is thrown away or can be given back to the person tested so the person will know that their DNA is not being kept. The evidentiary swab would be kept. The drugs that can be tested using an oral fluid device are cannabis (specifically Delta -9-THC, the active ingredient in cannabis), cocaine, opioids (heroin, etc.), benzodiazepines, methamphetamine, and amphetamine. Oral swab testing per testimony from an Abbot Labs witness was that the testing devices do not return positive results from cannabis taken days or weeks prior to the test. A typical detection window for cannabis that is smoked, vaporized, or taken orally is less than nine hours from ingestion, it was also reported.

We also heard testimony from the Director of the Vermont Forensic Lab, the Commissioner of the Dept. of Public Safety, a prosecutor, the Chief of the Newport Police Department, and a private defense attorney. The defense attorney objected to the devices being used, stating that they gave the police unreasonable and overbroad authority to process motorists on the basis of consumption only. He also had concerns about personal privacy.

Visit Montpelier, have lunch in our cafeteria, and take a tour. Contact me at home at 802-228-8432 or anitka@leg.state.vt.us. I am able to read all of your emails and appreciate you sending them, however the volume received makes it impossible to respond to all of them.

Sincerely,

Sen. Alice Nitka

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