Our opinion: Saliva test a bad idea

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Gov. Phil Scott is insisting upon a roadside saliva test as a condition for his signing a "tax and regulate" bill that would complete the marijuana legalization process in Vermont at the state law level.

The reasoning behind Scott's insistence upon such a test — and some legislators agree with him on that precondition — is that no one wants stoned drivers on the state's roads. That makes sense, for the same good reasons we don't want drivers under the influence of alcohol or opiates or prescription medication.

But as is the case with many ideas, that works better in theory than practice.

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First and foremost, the saliva tests available at present only confirm the presence or absence of THC, the psychoactive substance in cannabis. They don't tell you how much there is, or if it's enough to cause impairment.

And since traces of THC can remain in your system for weeks after use or exposure (word to the wise), such a test could lead to the arrest and prosecution of someone who was not impaired at the time he or she was stopped.

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Considering the cost and stigma of arrest and prosecution and the negative impact that an arrest or conviction could have on a person's ability to get a job, that's a bad deal. The drive to decriminalize and legalize cannabis should not result in more criminal prosecution.

Chloe White, policy director of the American Civil Liberties Union of Vermont, told the state House Judiciary Committee this week that there are serious questions about the challenge to personal freedom and civil liberties posed by such a test. As White pointed out, roadside saliva tests are more invasive than a breathing test "due to the physical removal of oral fluids and therefore DNA. Even though the bill forbids the 'extraction' of DNA, the removal of saliva is obviously accompanied by the removal of DNA."

That's an important consideration, White told the House Judiciary Committee. She cited Vermont v. Medina, a 2014 Vermont Supreme Court case, which "averred that individuals have an expectation of privacy in their oral cavity and in the information contained in their DNA." For that reason, she said, "the state must prove it has a 'special need' for roadside saliva testing to justify a warrantless search, and we do not think that special need exists."

The state has an essential interest in keeping impaired drivers off the road, particularly when considering how many serious injuries and deaths are caused by drunken drivers. There's a stereotype of pot smokers as mellow and harmless, but impaired driving is impaired driving, no matter what you took. No one wants that.

But police already have a tool to assess impaired drivers: the field sobriety test.

Legalized cannabis is a new frontier for law enforcement, but it need not be an excuse for a test that won't tell us if a driver is impaired, but will impinge upon the privacy concerns of Vermonters who don't wish to share their DNA with the government.


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