Myerson: Saliva testing - inaccurate, untested and unreliable

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Do you suffer from chronic pain controlled by medical marijuana? Are you prescribed anti-depressants, or pain killing medication? Imagine driving along a rainy mountain road at night, accidentally touching the center line or the fog line, or having a taillight or license plate light that isn't working. You are startled by flashing blue lights in your rear view mirror, but feel entirely sober. Yet 20 minutes later, you find yourself in handcuffs, because the officer claimed you had bloodshot watery eyes, nervousness and confused speech, believed you might be under the influence of drugs, and ordered you to spit in a dish. A test strip is inserted which — voila! — showed the presence of the particular drug in your system.

Inevitably you are charged with Driving Under the Influence of Drugs, so you must hire a lawyer (if you can afford one) and suffer a minimum 90 day license suspension, thousands of dollars in fines and ballooning insurance costs (assuming your auto insurance carrier doesn't drop your coverage). Your family, neighbors and employer will all know what happened, because the police issued a press release that you were for stopped for erratic driving, showed symptoms of impairment and were arrested for Driving Under the Influence of Drugs. Of course, if your case is dismissed, or if you are convicted of a lesser charge, don't expect a retraction or an apology from the police.

Law enforcement wants our legislators to require roadside or post-arrest saliva testing as a trade off for taxing and regulating the legal sale of marijuana. However, saliva testing would punish motorists who have some amount of a legal drug, such as marijuana or a prescribed medication in their system, regardless of whether they are actually impaired. The National Highway Traffic Safety Administration has not established that saliva testing devices are scientifically accurate or reliable in determining whether someone is under the influence of a controlled substance. Why would we force motorists to provide any saliva test that is neither reliable nor accurate in determining the driver's level of impairment, when Vermont has not established a numerical level of impairment for someone charged with driving under the influence of drugs?

Department of Public Safety Commissioner Anderson justifies the push for saliva testing by claiming that since marijuana legalization has made Vermont roadways far more dangerous, police need another "tool" to determine whether a driver is drug impaired. This is patently false as there is no Federal or Vermont data showing an increased risk of crash involvement for marijuana impairing driving related skills (2017 NHTSA Report to Congress). VT Digger reported in January that the number of fatal accidents where drivers tested positive for Delta-9 THC. the psychoactive component of cannabis actually dropped in 2018 — when Vermont legalized marijuana!

A 2015 Federal study also found that there was no increased risk of crash involvement for drivers testing positive for THC. Police already have plenty of "tools" to determine whether someone is under the influence of a controlled substance. Vermont has more than enough Drug Recognition Evaluators (not "experts"), police who are specially trained in the recognition and processing of drug impaired drivers.

Saliva testing also raises grave personal privacy concerns. Providing a saliva sample, or allowing police to swab the inside of a driver's mouth, would yield DNA evidence which could be entered into a government database. The Vermont Supreme Court has said that even convicted felons have an expectation of privacy in their "oral cavity" and in the information contained in their DNA. As the Court has broadly interpreted the right to privacy under the Vermont Constitution, there is the likelihood that a roadside saliva test provided without a Search Warrant, only based upon reasonable suspicion that the motorist is under the influence of drugs, will be unconstitutional. Further, since minority drivers are stopped far more frequently in Vermont, it's reasonable to expect that saliva testing will be discriminatory as more minority drivers will be suspected of driving under the influence of drugs, and be "asked" to provide a saliva sample.

Lastly, the financial costs of saliva testing would be enormous: between $290,000 and $393,000 in startup costs, and $60,000 annually, according to State Police information. It now appears that the Legislature will require police to get a warrant before requesting a saliva sample. DPS Commissioner Anderson recently testified that it might not be worth spending the hundreds of thousands of dollars needed to set up a testing based system for saliva testing, pursuant to search warrant. Why should Vermont motorists sacrifice their privacy rights, and be subject to possible racial profiling, for a test that is not scientifically accurate or reliable, determines only the presence of a drug in the body rather than impairment, and is tremendously expensive, when there is no proof that drugged driving is a problem? If that is the price for legalizing a tax and regulate program for selling marijuana in Vermont, just say no!

Bradley D. Myerson is an attorney in Manchester.

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