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Voices / Viewpoint

A step backward at the Statehouse

Legislation would undermine marijuana legalization and civil liberties

Jonathan Mack, Ph.D. (ReflectionsInACrackedGlass.com), a professor emeritus in community and clinical psychology, manages the Hooker-Dunham Theater and Gallery in Brattleboro.

Newfane

In this era, while we see impressive gains in some areas of civil liberties, we also see stagnation, serious threats to progress, and outright regression in others.

Democracy itself is under severe threat with upsurges in authoritarianism and oligarchy both abroad and in the U.S.

We might sometimes like to take comfort that we live in a state where a more-egalitarian approach is often the rule.

But even Vermont’s more open-minded approach is threatened by the recent passage by the House of Representatives of a bill sanctioning saliva testing of drivers.

* * *

One area in which Vermont has had reason to see itself in the vanguard of rational and humane approaches has been in regulating marijuana.

In 2004, Vermont became one of the first states to permit marijuana for medical use and, in 2013, it decriminalized marijuana, reducing possession to a civil infraction.

On July 1, Vermont will be the first state in the union to legalize marijuana directly by legislative action rather than by force of voter referendum.

This change is perhaps more important symbolically than practically. Medical marijuana and decriminalization had made marijuana consumption of only marginal concern to law enforcement. Most would agree that the state needs to focus its law-enforcement efforts on opioids and amphetamines, whose use and trafficking continues to exact a terrible human toll.

A primary benefit of marijuana legalization is to take law enforcement out of the picture and address the benefits and negatives of marijuana as an issue of public health, an arena in which our limited law enforcement resources need not be involved.

Unfortunately, the governor and many legislators in the House acquiesced to legalization, only to recently strike back with a vehemence that defies common sense and good governance.

* * *

One of the conditions the governor imposed, after his initial veto of the bill, was to empower himself to form a panel on how to regulate marijuana.

Unsurprisingly, the governor’s panel recommended a significant change to our state’s highway DUI laws.

On March 2, the Vermont House passed a bill that gives law enforcement free rein to encroach upon all drivers’ civil liberties, allowing saliva testing in routine traffic stops, including sobriety checkpoints, based solely on a police officer’s suspicion with no defined objective criteria. The Senate Committee on Judiciary is now considering the bill.

As passed by the House, the presence of any “drug metabolites” in a “preliminary” test will lead to a subsequent “evidentiary test” that may be used as an element in making an arrest.

The law states that all drivers “implicitly consent” to providing their saliva. Refusal constitutes evidence.

Since cannabis metabolites remain in the body long after an initial high, this effectively means that anyone who consumes cannabis, including medical marijuana, may have evidence in their saliva that can lead to a life-changing arrest for DUI.

* * *

Earlier versions of this proposed legislation clearly targeted cannabis, but the obvious problems finding any test with proven reliability in associating test findings with degree of impairment and, perhaps, also in a desperate attempt to deal with the opioid crisis, led to the proposed legislation’s catchall wording, which gives law enforcement carte blanche to invade the personal space of one’s saliva and equates impairment with any level of any drug.

Though it is likely that no court would uphold such a scattershot approach, in the meantime, any driver can be required to provide saliva and have it used as evidence in a DUI arrest.

Saliva testing encroaches on everyone’s civil liberties. Saliva sampling is significantly more invasive of privacy than a breathalyzer test for alcohol inebriation and, therefore, as the ACLU argues, taking a person’s saliva demands a much-higher standard of probable cause.

The head of Vermont law enforcement’s statement that driving is “a privilege, not a right” is a half-truth. Though driving is a state-regulated action, drivers do not and should not lose their civil rights when they step behind the wheel. All rights of search and seizure continue to apply.

Saliva contains significant and deeply personal information. While the law states that DNA is not to be extracted, saliva also contains a wide range of personal information, such as a person’s antibodies.

Antibodies are a kind of medical record of what diseases one has or has been exposed to. As such, it is private, protected information that even your doctor cannot legally share unless you grant explicit permission.

The proposed law states that by driving a car you are implicitly ceding this data, and anything else your saliva might show, without a warrant or your permission.

It frightens and saddens me when representatives who espouse support for the civil liberties can so easily be swayed by fearmongering to attempt take away significant privacy rights.

* * *

For those who use marijuana legally, this law reinvokes the danger of police intrusion into one’s personal life at the very point when the Legislature has acted to reduce that fear.

A person who legally consumes any amount of marijuana (or, as the law is written, any drug) hours or even days before driving may find their saliva used in evidence against them. Nothing in the law even attempts to equate, let alone validate, that a given specific level of a given specific drug correlates with impairment.

The implied parallel with alcohol falls apart here: Unlike the measurement of the amount of alcohol in one’s breath, there is no scientifically valid standard of what constitutes the amount of a given chemical in one’s saliva that can legitimately be considered evidence of impaired ability to drive.

The saliva test invades our privacy while having no true legal value since it also cannot distinguish a legal, fully competent, unimpaired driver from one who who is significantly impaired.

When laws apply arbitrary standards that have serious legal consequences and invade our steadily decreasing personal privacy, we edge another step closer to a less democratic, more authoritarian, arbitrarily invasive, and punitive society.

It is shameful to see a branch of Vermont’s own legislature pass a bill that would not only reverse the practical effects of legalization but also repress civil liberties of all residents.

The Vermont Senate took the lead in developing a rational approach to marijuana. I am hopeful that our state senators will recognize the fatal flaws of the House’s bill and reject H.237 in its entirety.

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Originally published in The Commons issue #452 (Wednesday, March 28, 2018). This story appeared on page D2.

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