 Hello committee for the record bring here from Legislative Council here to walk through draft 1.2 This is the proposed language that addresses highway safety for the tax and regulate bill s54 so Looks a little different than our regular amendment because it's just these sections of law popped into a document And doesn't have some of the other language you're used to seeing recommendations Okay, so I'm just gonna go ahead and start Some of this some of these sections are gonna look familiar to you Some of it is similar to the first amendment that you looked at last week Some of the changes to the DUI statutes and then there's other language that's new But I'll just go through all of it to make it clear so section one This amends The basic training requirements a statute in title 20 to make a ride the advanced roadside impaired driving enforcement training a requirements for all law enforcement as a part of basic training and It gives the training council until the end of 2020 to ensure that all officers complete this a right train So It's not a requirement for law enforcement officers at level. I believe at any level one two or three My understanding is that state police typically have this training, but it's not a requirement for standard law enforcement officers so some Somebody's standard law enforcement would call in Potentially the state police or another officer that's a right certifying if they wanted Person who was certified to come and give a field sobriety test. Yes, right. So from there if a ride Officer Determined that there's an issue I believe that that is typically how it happens. I'm not I'm not going to testify that that's how it always happens Okay So I'll move on to section two. We're getting into title 23 now into the DUI sub chapter So this is the definitions section of law and it adds Saliva test to the definition of what an evidentiary test can be Section three is the DUI statute The changes to the statute are primarily technical in nature. We went through them last time You'll see some language on page two is struck through that's just been moved to a different subsection. So these are Not substantive changes until you get to page three. There's a new subdivision Subdivision I and this provides that field So if I get pulled over very adamant about that Our substance is go and not under the influence of anything and I refuse It could be charged I'm gonna assume I can be charged with the enhanced penalty of 0.16 at that point But Let's will you show me where you are? Right so Yeah, so There's so this is a long statute. It's a purpose that's out several several requirements under the DUI Statute so it provides you can't operate under the influence. It also provides some enhanced penalties for operating with a high blood alcohol concentration and it also provides for Some instances where a person can be charged with a criminal for criminal refusal, right so And I don't know if the whole statute is here so I haven't done anything I know this is all hypothetical probably would never happen, but things can happen And say I'm at that point. I guess I would on some level be detained or arrested brought back to Barracks possibly at that point a warrant For a blood test or a warrant for if we happen to pass saliva It is issued and they get there They get their information from the saliva or the blood and it proves that I I am not under the influence of anything can I still be charged with So what can happen if there is if you initially refuse And an officer gets a warrant to take an evidentiary sample of your blood or saliva The evidence of that refusal can be introduced at trial But there's not a provision that that You can be criminally penalized for refusing the test So the evidence of your refusal can be introduced at trial to show To demonstrate to maybe demonstrate that you were impaired or that you were lying about your impairment or something But there's the process the criminal penalty for refusal applies in other circumstances And I'm just trying to pull up the statute to find out what those are I think that it's if you've If you're if you have a DUI on your record, and I think that there's a criminal penalty if you refuse When you already have a DUI on your record, but I can confirm that I Just have to get the full statute in front of me okay, so Moving on to page three the subdivision I provides that field to priority tests that are done by an A-Ride trained law enforcement officer and Dere evaluations are admissible At trial to demonstrate whether a person was operating in violation of the DUI statute Or by a certified It just both it just provides that they're both admissible and they can be considered by right in that I Mean that's is that a contradiction or a codification of that is a codification of what is currently happening So section four. This is the consent statute So this is I think it's much of this you have seen already. We've added saliva throughout So to so in the first place you see it is in the blood test provision on the bottom of page three This provides that if a person doesn't give a sufficient sample of breath or saliva then a law enforcement officer can Take an evidentiary sample of blood and then the next page page for subdivision three This is language that provides that a saliva test is available to law enforcement as an evidentiary test And it treats saliva the same way that it treats blood so much of this language is very similar To the language you see in subdivision two It provides that a person It gives them it provides for implied consent for saliva But it also subjects it to the warrant requirement in the same way that we do for blood testing Sure So we're on page four subsection three So it provides that if law enforcement has reasonable grounds to believe that the person's operating under the Influence of a drug other than alcohol or under the combined influence of a drug and Alcohol then the person is deemed to have given their consent to the taking of an evidentiary sample of saliva and Any saliva test sought pursuant to this section has to be obtained Pursuant to subsection F of this section of law, which is the warrant requirement section And that is the same language you see in the previous subdivision regarding evidentiary blood tests That's right And then there's a some additional language there that provides that any saliva tests that it's that's administered pursuant to this section can only be used to detect the presence of a drug and Shall not be used to extract DNA information That's correct Yes, because we're talking about evidentiary tests only so it doesn't it doesn't Encompass preliminary screens, which are the screens that are typically down roadside Yes, and that aren't admissible and again, it's we're adding saliva throughout the statute So you'll see it again on page 5 that a refusal to take a breath or a saliva test may be introduced as evidence in a criminal proceeding And that's what we talked about a moment ago So the next change is in subdivision F. This is the warrant requirement section if you turn to page 6 We add a new subdivision under the warrant requirement that provides that if an evidentiary That's okay Again a refusal to take a to take That's right That's right, so there was a recent Vermont Supreme Court case that said that Admission of a refusal to submit to a blood test In a DUI proceeding doesn't violate the fourth amendment So although it's not explicitly provided for In statute there is precedent There is precedent that it can be introduced In as evidence in a criminal proceeding I don't know Let me ask it this way if we put that would be would that be codifying what the court has said It would be codifying what the court provides is not unconstitutional Okay, i'm on page 6. So this is that right that second It provides a subdivision to the warrant requirement subdivision 2 The provides if an evidentiary test is sought then a law enforcement officer can apply for A search warrant pursuant to rule 41 to obtain that evidentiary sample So again mirrors the language in The rest of subsection after guarding blood test The requirement for a warrant for a blood test I'll move on to section 5 and that's all right So this again is going to look familiar section 1203 the administration of tests Subdivision a provides that a person who administers a saliva test must be certified by the criminal justice training council Subsection b. This is language that comes from the t-bill So it adds EMTs and paramedics to the list of professionals that are authorized to take a blood sample And then there's some language in yellow. You'll see on the bottom of page 6 to page 7 This is different from the language that came from the t-bill And it provides that any Sorry, just to take the step back Well been certified by the Vermont criminal justice training council to operate the breath of saliva testing equipment is that Um, do you have to have an uh the a-ride certified to do that or is a ride uh over and above a certification I believe that it's in addition I will let somebody in the room correct me if I'm wrong about that. Yes Um, so the language in yellow just provides that any blood withdrawal shall not be done Should not be taken at roadside And that those limitations on who can conduct a Of a blood test Um, and you can't do it at roadside don't apply to the taking of a breath or a saliva sample So I'm just kind of um I'm Having a hard time reading that and fully comprehending it so it um I mean the I understand it's so it's saying, um Um The limitation That the limitations who can perform it. Yeah, um doesn't apply to breath or saliva, but we are we also saying We're also saying is that second sentence the limitation that the blood can't be taken roadside also doesn't apply to the taking of a saliva sample So the idea is that a cheek swab that's sent to the lab Could potentially be done at roads an evidentiary test if if a Yeah, if an officer has is if there's a refusal and the officer has a warrant that that test There's not a restriction on that test that it can't be done roadside. However, it the it still has to be an evidentiary Sample subject to the warrant requirement So this breath and saliva roadside They're both consensual Right or right or subject to a warrant for the saliva sample Don't have a warrant requirement for a breath So so the stat so the way the amendment is set up it provides that only Only a saliva test can only be an evidentiary test can't be a preliminary screen There are preliminary breath tests that are done roadside so it doesn't Sliver tests are evidentiary That's what this amendment sets up It sets up a provision that saliva testing can be done only as evidentiary tests subject to the warrant requirement similar to the way blood Tests are are done currently in statute I have a question for you. So under this if somebody Is brought back to the police department and they say Don't waste your time on a warrant. I will voluntarily give you A saliva sample the officer still has to say I I'm gonna have to write a warrant anyways. Is that no you can they could take a saliva test If the person consents to that test for the evidentiary for the evidentiary test. Thank you So There may or may not need to be some more clarity here that what we're talking about here is is the What Dr. Conti testified to last week where They take a swab it goes into this special container it's Labeled and such and it's sent off to a lab And it's at the lab that they use the same equipment that they use for blood tests to find out what's in that fluid that we're absolutely not talking about the Equipment like the dragron that we saw the other week and there may be a little ambiguity about that here And I'd also suggest that We make it clear that this is not something that happens on the Ideas that the Bios and the swabs and all those things are maintained at the station And there's more of a controlled environment and not alongside the road I'm not sure what language that I think unless it's clear to everybody else. It's not as clear to me Is I'd like to see that Okay, so Is the idea that any saliva collection saliva sample collection not occur roadside? I think that's kind of what the idea was from what I was What about a consensual Well, I guess, you know, you hear from law enforcement because it's not the Machine that they that they use right now that it's all set up. It's it's separate All the equipment it's a swab and it's the container that it's placed in before it's sent off I'm just saying if there was a consensual potentially That somebody who doesn't want to be detained potentially could The swab that results the swab don't come back from some kind of descent to the length I mean, it's not like any kind of a need. That's that's the thing. It's not any kind of immediate detection Uh Are not as accurate as if you send it from the lab Where they scream no, they're expensive Right, but it can be possibly I guess I'm confused. What are the $5,000 units? That's that's not included That's not included in there. Well, there's a provision. We'll see as far as trigger for that, but that's a little bit there If law enforcement says that it's it's not a problem to be able to do the swabs roadside But I just don't see a reason for that. It needs it's not going to give them anything right then It's going to be something that's going to be sent off to the lab anyway. So people Very clear and straight They were talking about two separate tests One using the machine that can tell you something to some percent accuracy both side versus The much more reliable test What are you basing that on? And what was she basing that on? Okay It was some number of individuals One draw and slide a draw She sent me a follow-up email that I'll form to you She talked about the So made me understand Sounds good Okay, so I'll move on to subsection c we're on page seven So again, this is going to look familiar. These are the some cleanup changes that are done to the statute And also adds saliva to the independent analysis provision in the statute So provides that a person must give a sufficient sample of blood or saliva to enable independent analysis And again in subsection d on page eight These are some Both some cleanup changes and also provides that the analysis of a breath saliva or blood test Has to be performed in accordance with dps rule And failure to provide a sufficient saliva sample constitutes a refusal Breath or saliva sample Um If you look on page nine Subdivision h this provides that tests that are taken out of state are admissible and it adds saliva tests to that portion Failure to provide an adequate method of saliva sample comes to do the refusal suppose The person inside the application that has dried out in some other situation That they can't give an adequate sample because has to stay in there for a minute or seven has to That's a refusal Right, that's a good point Can I chime in can we look for for that there? there are multiple points in this process where The person is asked the defendant is asked if they have any medical issues and That at that point that's typically when you would document something something like that if they you know They actually do have a medical issue that would prohibit them from Providing a sample of saliva and that's all information that the state's attorney's office will take into consideration when they're Compiling all the evidence in their case when I think that's something that pecker would be able to speak more on But yeah, just that you know So I think the remaining changes to that section are just Peripheral changes if you turn to page 10 section 6 This is the section that just provides that arrangements for an independent chemical test Have to be made by the person who's submitting the test and it includes saliva to that statute Section seven is the permissive inference statute that provides that if the state proves That if the dependence blood alcohol concentration at the time of operation met a certain threshold Then a jury can draw an influence an inference that he or she was under the influence And there's a technical change there. So in subsection b it provides that The permissive inference statute shouldn't be construed to limit the introduction of any other competent evidence Bearing on the question of whether the person was under the influence of alcohol or under the combined influence of alcohol or any other drug So just adds drug driving to that portion of the statute Um section eight. So these are some the two new sections that you haven't seen yet This is a directive to the department of public safety to report to The committees standing committees on judiciary and government operations Honor before january 15th of 2020 next year on a plan to achieve geographic equity and dre availability to conduct roadside evaluations Of drivers who are suspected of violating the dui statute across the state And also on their plan to expand the availability of the dre program to Beyond law enforcement officers to other public safety officials To the extent that that is authorized by the international association chiefs of police and the national highway traffic safety administration Which are sort of the governing bodies over the dre program Right now It is law enforcement officers. So according to the credentialing body, which is the international association of the chiefs of police currently In order to be a certified dre Person who can do the dre evaluation You have to either be a law enforcement officer Employed by a law enforcement agency or another person who's employed by a law enforcement agency So The majority of individuals who are dres are law enforcement officers But it appears according to the credentialing agency's rules that there may be some opportunity to provide dre training to other people who are not law enforcement officers So again, the the language is employees of the law enforcement agency Especially where they're concerned about geographic Well, I was just nodding and agree I think I know the answer to the other public safety officials I guess no, wouldn't be that it would be Law enforcement officers that include the game organs because years ago we gave game organs I Believe it does include them, but I will confirm that and get back to you Okay, so the last section section nine This is a directive to the department of public safety To issue a report Contingent upon the national traffic highway safety association doing two things identifying a threshold level of THC concentration in a person's bloodstream to establish impairments And also approving a chemical testing device for Roadside use that's capable of establishing such a threshold level of THC in a person's system So upon that's uh Doing two those two things that triggers The report requirement from dps To report to the standing committees on a proposal to implement the use of such a device to evaluate individuals who are suspected of operating in violation of the DUI statute under the influence of marijuana Right. Yes In this specific report requirement Sure, and I'm sure there are others that could also do this but um So I have a few questions about the bill, but I was gonna ask something about that particular section. So should I so So I'm I'm confused about what the intent is of this last part If the commissioner shall consider relevant standards In adopting such rules, but mitzah has said Very recently to congress That There currently is no Test that is accurate reliable sensitive and specific enough to use um And that The presence of THC in blood oral fluid et cetera does not establish impairment It also doesn't distinguish between active use of marijuana and environmental exposure or contamination Some studies have shown that people exposed to second hand marijuana smoke Can test positive for THC and that second one is in a mitzah report Um As well and then the governor's highway safety administration Very very specifically says in their 2017 report The currently available devices are not yet. They're talking about oral Saliva testing so the currently available devices are not yet of evidentiary quality The gao in 2015 concluded that currently there is no validated roadside drug testing device They reviewed four studies of oral fluid devices for marijuana and concluded that while promising current devices Have not yet achieved acceptable levels of sensitivity specificity and accuracy um I'm confused Yeah, I'm wondering if I think that you might be looking at the requirement that the commissioner adopt rules Relating to the operation or maintenance of preliminary alcohol screening devices So that's an existing requirement and it doesn't apply to any saliva testing devices that would be used for evidentiary testing It's just for preliminary alcohol screening devices and then but up in the beginning we definitely Are in b on page Well in b on page five. We're saying saliva test may be introduced as evidence and then we're saying On page one evidentiary test means saliva So it does seem like we're saying something that's counter to What nitsa is saying in the governor's safety Highway safety association. So that would be concerning Again, that's what I was trying to get to before I did send you this integration additional information or also I'm at post and now From dr. County that it's the roadside test that that advice that is not accurate It's it's the oral fluid test that you send back to the lab and run through the same equipment as you do blood I know it doesn't tell the impairment, but it tells you the same that blood would tell you And is it the drager or is it one of those? It's not those. Is it completely different? So again, I'll look at the Notation but It's still pretty rare that States are using that In either type of Oral fluid as evidentiary What What the governor's highway safety association says is that blood is the gold standard after the dra Work as a confirming document, so I guess I'd want to know why we'd be going against that based on dr. County Well, it's uh, I guess a couple things that I like to find me That The the test that she Was referring to which has 326 drivers that have both oral fluid and blood samples collected Fund that there was a 97.2% Correlation rate where they both found the presence of Drugs there were some that they didn't one or the other because there's certain drugs I guess cannot find in oral fluid And the same like the X with blood THC not one of those And That's it's a less I mean if There's a couple reasons why it could be a benefit. It could be a benefit from the defendant or the person from the Right, it could be benefit. Uh benefit certainly Long person for one if the person can sense That saliva swab is much closer to the crime where the person is cold over So the metabolizing of whatever might be in the person's system You're catching it closer It's a benefit to The individual because it's a lot less intrusive than a blood drop So I mean there's a buses on both sides and And it's personal to a war And that could be for personal to war either blood or the saliva test Although that can be the consent. I mean they're obviously Um, so so that's that's why I suggested putting it in there it does it does provide another Avenue for identifying the presence of THC or other so Another report by the reason foundation which Said that devices basically that it's Very difficult to take levels of THC And convert them to the THC concentrations to blood concentrations And that it's hard to Tell from against saliva if it was orally ingested It's very limiting I guess so I'm wondering Again, you mentioned it being less intrusive, but we know that Saliva's going to test for seven different types of drugs that people take such as anti I'm talking about where we're asking people Right, okay Okay, so So one thing I think that's important from the saliva test because I I'm not sure if the blood test is testing for seven different drugs. That would be good to know or for either test How is that information shared because again, we heard it could be people driving to their methadone appointment It could be people on antidepressants on anti anxiety medicine Also, it could be people on ADHD medication And a lot of that seems like it is Information that could further be Embarrassing to people that They're not impaired, but people have information on their On their medical conditions, which I worry about and wasn't sure who could tell us if it's like if there's any ADA Violations with having that information be public. Dr. Conti did say I asked if that was shared publicly and she said I mean, there's no law keeping it from being shared publicly in an arrest report, so I'm worried about that And it doesn't do anything more or less than the blood test except that it could be earlier in time To the extent that those concerns that you have I would assume that those go to the results of the blood test as well, I don't know the answer to what your concerns and but but it's That that's not the question of whether to do saliva. It's whether to be either of them frankly blood or saliva It's it just seems interesting because so many states Are only using saliva as a pilot So i'm not sure and actually There are lawsuits now in canada and australia, so I don't know why we want to be Again, let's see the you know, let's see the research why aren't other states using it So I can talk a little bit about the difference between preliminary tests and an evidentiary test So this Specifically talks about and it's a proving a device that's capable of testing at the roadside So that presumably would be a preliminary test Right So it Presumably it would be a preliminary test if it's capable of providing this information at the roadside So it wouldn't have to be a sample that was collected and sent to the state lab But rather it would be some equipment that could be used Just to make sure we're on section nine with section nine, right? Yep the I think it might be wise to incorporate language in which If future psychoactive metabolites are discovered That should be taken into consideration because we don't know where the science will be in five or ten years and if a new Metabolite is discovered in cannabis that is much more indicative of Present impairment as compared to delta nine. I think that might be Good language to add if you folks agree Okay Right so the report isn't triggered until these findings are made So I'll talk a little bit about the preliminary test versus the evidentiary test Um, so when law enforcement has reason to believe that a person is violating the DUI statute The officer can request that the person, um, provide a preliminary screening test a preliminary breath test Um, so at this stage there's not a right to consult with counsel And the results of that preliminary test cannot be used by law They can't be admitted at trial to show impairment But they can be used to by law enforcement to determine whether or not to arrest a person or to ask for an evidentiary test So the The roads It approved saliva testing device if it happened to be a roadside testing device That would give Some information I know it can't get levels of impairment That's pretty clear, but The roadside could give An indication that somebody had something That is the testimony that you've heard about those devices Okay, so the evidentiary test, um We we have a provision our statute that provides for implied consent to an evidentiary test When a law enforcement officer has reasonable grounds to believe that the person was operating in violation of the DUI statute So at that point, um, the person has the right to consult with an attorney before deciding whether to submit to that evidentiary test And the evidentiary test is admissible at trial to, um, go towards the question of whether or not the person was impaired So Preliminary tests not admissible trial evidentiary test is admissible The preliminary screen So at the preliminary stage, um, the it's sort of an information gathering I think what you've heard from law enforcement is that this is really an information gathering stage And that evidence can be used to, um, provide sufficient probable cause to arrest the person or to ask for an evidentiary test Which they may have to apply for a warrant again If they're seeking a blood test So they have to have reason to believe the person's operating in violation But they don't have to have probable cause at that point to request a preliminary test Maybe can I chime in part of this also has to do with How recent someone has drank because if you Take a shot and they get right behind the wheel and then you get pulled over five minutes later Your preliminary breath test is going to be substantially different than 45 minutes later when you're at the point in processing where you're delivering an evidentiary sample because of the residual alcohol that's Remaining on your breath or in your saliva The other thing also has to do with observing a person for 15 minutes because And also making sure that they don't have anything in their mouth because certain types of gum Chewing tobacco can actually mess with the evidentiary sample result Or the or the preliminary breath result substantially and so During the processing right before you take your evidentiary sample you have somebody under observation You're they're not supposed to leave your site You're making sure they're not burping or vomiting or anything with that and you're also making sure they don't have anything in their mouth That could affect the breath same So I think that's a good question. I would be interested to hear other people's perspective on this I would say that I think if there's an implied consent provision Then that allows law enforcement to take an evidentiary sample if the person is unconscious And also it I think that it would allow for that refusal to be introduced as evidence in a criminal proceeding with the implied consent statute I agree that it's um, it's a little funny to say that you Essentially have given your consent to an evidentiary test, but then also subject that to um a warrant requirement if you refuse So that's why I say I would be curious to hear what other people have to say about that But my I'm I'm thinking that it would apply in both those contexts if you're if a person is unconscious Then the implied consent statute would give law enforcement the authority to take an evidentiary sample in that case, although I know that there is a I think oral argument was just heard uh in front of the supreme court about this issue about whether or not implied consent An implied consent statute is constitutional under the fourth amendment for a person who is unconscious So there may be more information coming about this from the supreme court But the implied consent that already It does It does. Yep. So the way that this is set up. It just applies those same requirements to An evidentiary saliva test as it does to a blood test. Um, I Yes Thank you You know, I mean, I'll I'll start by saying that I think You know regarding the trigger language part of this You know everything and if I'm wrong Reagan, please correct me, but I mean everything that Comes from the dy process is governed under NHTSA and the IACP Um, I think it's important that any New tools that we're trying to put in the toolbox Needs to be vetted by that standard. Um, you know, I I don't think that I mean look I'll tell you this to you know what what we've heard before is The idea, you know of the officer on the side of the road They're screening somebody for impairment and they think it might be drugs And then they get to that point where they would otherwise be delivering a pbt to somebody who'd be who had been drinking But it's drugs And wouldn't it be nice to have that saliva test? I that's a sympathetic argument and I get that however If you're providing that officer with a test that's not reliable, that's not Approved by NHTSA in my opinion You're just actually making the situation worse because I I've been in that scenario before where I've been at that point And I'm wondering, you know, what if only I had some sort of magical test that could tell me what drug this person is on but then if I have that test and I administer it and I'm uncertain of the results that's only going to muddy the waters even further And you know, I was reading about Michigan's last pilot project and They recommend they did not recommend it for further use until there's more studies and they had 11 11 out of 74 were false positives Roadside yes And Yes, yes and You know, I mean Who knows where the science will be in five or ten years If I mean we develop science rapidly and if We're able to find that new metabolite that is That would be Parallel to impairment the same way that we can say, okay a point away if you're a point away or above You're getting arrested for DUI even if you pass the field sobriety test And if we can find some sort of equivalent Through further study and research Where we can say, okay, you're above a certain threshold for this Metabolite and based on extensive research and studies We know that that is the per se limit I'd be comfortable with that, but you know currently I don't think we should be Incorporating roadside saliva until those standards in that and that's what section nine Yes And also can I talk about the air ride and the re program? So When we're thinking about a ride and dre also remember that Their usefulness expands beyond just DUI enforcement And it's often common for Officers who have dre training to go to these different cases that involve drugs Whether it's an overdose or a search warrant or a drug interdiction case You know oftentimes when my colleagues are You know pulling drugs out of cars. They'll have me Go there to just an extra set of eyes From somebody who's had the training of the dre because we tend to spot things related to drugs that Most officers Don't spot and so I think when you look at the bigger picture of the Drug usage problem in Vermont. I think that increasing the training and trying to get more geographic equity In terms of where dre's are I think that could have a Pretty significant impact not just on DUI enforcement, but also the greater at-large issues And you are asked to make those difficult judgment calls So a ride is a certificate It's it's not a certification It's a training to say that there is not To be certified you're right about the testing piece man. So it's The correct testimony would be I'm a ride trained It's a little misnomer to say I'm a right certified As far as this language Yeah, I just wanted to verify that it's been a long time since I've gone through a ride, but the dre so your question was Would it muddy the waters further if you're a ride certified but not dre certified? I don't think so because Yeah You're you're compressing a lot of the information a lot of the basic information From the dre training into a two-day course That gives officers at least a cursory understanding of what the seven drug categories Will do to or how they'll impair the person and You know, I mean this is where Professors who previously didn't know learn the difference between dilated and constricted pupils for example And that's that's an important thing to know and so It also provides you with two additional field sobriety tests that you can utilize And you know so you go from three tests to having five tests including the lack of convergence test Which is an important one when you're When you're taking into consideration cannabis impairment For the breath test, is there special training that has to be taken for any law enforcement to administer the You have to go through training Does everybody go through that training? Yes Well, I guess technically you you can if your police department says no You're not going through that training and you don't go through it You're in the post basic academy and then you just can't administer the test to anybody And so you have to call your friend to come and help you But I don't think that happens often So and so with the a right training The bottom line is it would help the law enforcement officers decide whether to bring that person to the station It's it's more knowledge it makes you less uncertain and it makes you aware of the bigger signs of impairment that you can use to differentiate You know, it's it's better to say to yourself You know based on my a right training. I think this person might be on narcotic analgesics for heroin But I'm going to call my dre friend and tell him what I have and then take the process from there That's a much better Scenario than saying I think this person's on drugs, but I have no idea What I'm doing here. So so So I've heard the concern that Law enforcement officers who have not had particular training Law enforcement officers are out there. They pulled somebody over. They suspect. That's what he said that this person Is on drugs. I don't know much at all about it, but but I have this Test here. I can use this grigger And I can test and see if the person has a drugs so There's that choice or there's a choice in my view of well give them the a right training instead of Having to have this fall back of using an unreliable Instruments to see if the drugs are there. Why not have somebody do the a right training? I guess the question they unbalance People compare having had that a right training with having had having this uh, alongside saliva tests So what what's your question? I did not Hey, compared to I mean the concept of a young law enforcement officer To best be able to please whether somebody is right under the influence of drugs a ride or Or the saliva test I would go with a ride 10 10 times out of 10 because I mean When you have this test in its current state as it's unreliable in my opinion Based on the studies that I've read I think that would create further uncertainty because You know you have these clues in front of you you have this possibly impaired person you administer the saliva test and If you know that it's not approved by nitsa and you know that It's quite possible. You can have a false positive or a false negative You get that saliva result Now you're going to be second guessing yourself on the saliva result and saying well Did I just get a positive because it's a false positive or this person actually does this person actually have drugs on board? And I think it will further muddy the waters and regardless you're still going to need a dre anyways And so instead of your a ride certified and you can say Based on what i'm seeing based on my a right training I think this person has been smoking cannabis or they've been using dissociative anesthetic. So whatever it is And now I have to take it to the next step Where I need a dre i'm going to make that phone call and call one up and get the ball rolling And that's what this person's involved with with this trap. That's what this trap And I just also wanted to reemphasize You know a saliva test can't also help for All the other cases that an a right officer or a dre can help in like those search warrants or those overdoses or Drug interdiction cases So, you know, it's and the other thing is that dre's are often Consulted by other officers just you know, whether it's during dinner or lunch or whatever just conversations about drugs because they are Seen as experts and they have that information. And so there's just always generally this continual education of Other officers on the shift so I um Totally agree with you and again sort of the research backs that up so again, this report looked at each of the methods and and basically said that um, nitsa studies verify dre evaluation accuracy rates where toxicology results confirm The drugs identified by the dre officer were between 94 and 98 percent um And again, it's saying establishing impairment through dre evaluation corroborated by Toxological screening for marijuana is the most accurate means for detecting and assessing marijuana impaired drivers rather than simply marijuana positive drivers which um Again, then it goes on to give the odds For each of the biological tests putting blood higher than saliva for that confirming test um Even if it's 165 Um, minutes later, which they were saying in some places. That's what the average is um, and again saying The concerns related to Saliva I Cannot find a study that shows lab Saliva being more accurate. I'm concerned that 300 in something is a really small study some of the other studies. I've seen are like 30,000 I mean more accurate than root side So I can't find dr. Conti's study. I saw the email, but I can't find what that goes to Side type saliva test No, it's it was talking about what you can get from the fluids through the same machine. It's talking about What the evidence shows to a common-sense approach to marijuana impaired driving Then I looked at oregon because oregon's been um added for a while and That's basically what they're doing so Again states that have legalized marijuana for longer than we have are not necessarily Going to saliva and I'm sure they have Labs as good as ours. I don't I can't imagine Like it just seems unusual to me that We have the statistic now that's being held out That's back to 2007 because nobody is saying Oh the lab saliva tests are super accurate. They're saying You can tell from saliva what You know based on how frequent people use the method they use you're not going to be able to tell a whole heck of a lot and You can tell more from blood which again Doesn't seem like you can tell a lot from blood But nobody is saying but if you do it in the lab In vermont, it's good. You know what I mean? So I'm just worried about this elusive study I understand what you're saying on that. I mean my biggest concern is whether The evidentiary saliva test once has accurate as the blood test them The expert that we had in here has to find benefits But I would say that the expert works for the administration the administration is pushing this and I would in some ways Like to hear from people who are outside of vermont who have had more experience with it If they're fully told what the risks are about You know like if you asked You know if somebody's like would you rather us take your blood or your saliva? They might say saliva, but I think we'd have to disclose But it could be a false positive and nitsa has not I mean there's a lot of pressure on nitsa to come up with standards and Again, one of these other studies said the great thing about DUI's is you can take the objectivity out and there's we know a number that does At least correspond to impairment where there's just so much subjectivity going on here that These 12 tests that the DREs do Definitely have more confirmation to impairment than almost anything else and Again, I'd certainly encourage I made extra copies if anyone wants to see and their recommendations are such that um The same thing is the governor's highway safety folks have Made similar recommendations and I feel like we want to do what's safest for people and will not I was appreciative that the blood test had a cap on it and was going to say We should add a cap on what the toes going to be because you know if somebody gets Halled into a lab their car is going to get towed and they're going to have a $500 towing and storage charge when it's over And I'm sure we're not going to reimburse them if they test negative You know like it's a huge it's an ordeal, you know, and I don't want I don't I don't want to see innocent Vermonters get Tangled up in it when You know, we all wish there were a test that was reliable, but gosh the DREs are the best thing going right now and Let's look at the evidence You know Yeah, I mean bias and subjectivity is a very real thing in police It's you know, we are trained to be as impartial and objective To be as impartial and objective as possible For the DRE process and actually throughout everything that we do as cops, but um, that that is a valid concern because Cops are humans and every human has implicit bias So I mean that that's really Like to the extent of I mean it it can affect you it may not affect you but You you bring up a valid point And suppose you're calculating someone says do a toad a toad for nine steps turn around Take this step seven or step eight. Is there some You're making that qualitative judgment on the various steps you go through and sometimes it's a close call Or you know, you have to lean back over close your eyes touch, you know any number of things How those may be difficult for any number of reasons There, yeah, but I assume those are all compensating for just some of the So there are parts of the DRE evaluation that are quantitative, but You're forming your opinion at the end of the entire evaluation where you're taking into consideration all of the evidence as well as including the car stop and what was seen and Um Discussed on the roadside and then you're forming your opinion But there are certain parts for divided attention tests for example or you know measuring pupil size That there are quantitative parameters for those things So, uh, yes, and it I mean it's a long list and I can show you Each part of it on the face sheet of DRE about after this if you'd like and I mean so having a blood test after at least confirm it would It would either confirm what the DRE found or Or not, but which is interesting rather than beforehand which could Because you were talking about when you were trained like You were presented with the information after and so in some ways it didn't Um bias you to look for something Yeah, so one thing I'll tell you is that we're It doesn't always happen, but ideally you want to Finish your report before you get the results back from the blood and you're you're giving your opinion. So, I mean You get the blood sample sent And right before that you're giving your opinion to the To the arresting officer as to what drug categories you think the driver is on and Ideally, you're supposed to finish your report before that blood comes back the blood results come back so that you're not Encountering any sort of confirmation bias or subject to Probably would be good It is An example of the great circle of life, I guess right because Ever a bill word so yeah a couple of minutes of background. Hi, Eric. It's Patrick. I hear this afternoon to talk about a portion of s1 12 which is an actuating to earn good time and the uh, the As a great title and as as was the section was called that as well so couple of minutes of background good time generally means that Uh, it refers to inmates within the department of corrections And it means that through some sort of however you want to statutorily define it through some sort of good behavior It might be compliance with department of corrections rules and regulations It might be just not getting any disciplinary charges against you not being pulled back into A facility after you've been out in the community you can find however you want But but the general picture means that it allows an offender who's been sentenced So in other words, this is all post-sentence, right? This isn't beforehand This is after the person's been sentenced and is within the custody of doc To a pain reductions in their sentence and that sentence the reduction is called a good time reduction because it's for you You uh Performing good time engaging in good time your time served is good. You know, it's no violations that sort of thing and you Are able by behaving in that way to get your sentence reduced So that's the big picture concept the other interesting thing about it is that you know Vermont had a good time system for almost 40 years Had it was had for a long period of time had in fact had more than one it changed over time Sort of different ways that it would be applied different sort of conduct that the Inmate had to engage in in order to get good time. There were several changes to have made over the years Work camp got added to the work camp folks But in 2005 as part of the truth in sentencing was going on at the same time There was truth in sentencing and there was the justice reinvestment Which you may have heard of now like that has also come back then the whole concept of it was to try and use corrections dollars more wisely to You know use the amount of bed space that you have more wisely that sort of thing when that happened in 2005 The good time statute got repealed So instead that's when furlough got instituted. So they went from good time to furlough And now they're talking about going back that I guess after What almost 15 years I suppose right of experience with that there's been some Conclusion by people that sort of deal with this stuff every day. I'm not one of those folks I don't have that level of expertise But the people that do deal with it Are saying that that good time would be a good system to re-implement And and furbs and then corneth commissioner. He said I think I'm remembering right. I think he said there were I think he said over 20 different types of furlough So that's become this complex complicated system to administer and that They're thinking about better more efficient ways to deal with the sort of offenders. So they want to be kept inside and allow others who Who should be able to be let out Achieve that That status outside of doc. So This not in this bill No, okay, but what the a separate part of the bill which we can certainly run through the whole thing But a separate part other than the good time piece Is a study and that study is to consider An implementation of a system called presumptive parole and under the way parole works now and I I really learned this this year myself, but When you know in vermont sentences have a minimum and a maximum right Sentence to three to six years say five to ten years, whatever it may be. There's always a minimum and a maximum When you reach your minimum You have a right to go before the parole board and ask for parole When anybody hits their minimum they can go try and get parole Now when that happens the the burden so to speak the evidentiary burden is on the The inmate the offender to show that they have a right to parole and the parole board makes the decision for each person So presumptive parole And they'll have to decide doc in the course of the study the parole boards and on the study as well to To Consider how it's going to impact furlough But the idea presumptive parole is once you hit your minimum. There's a presumption that you get out on parole And the burden is no longer on the defendant the offender To show that they have a right to get out by parole the burden is on the department to show that you shouldn't go out So there's a presumption that every person who hits their minimum goes out on parole And then you go before the parole board and unless the unless the department can show that the person shouldn't be paroled They go out And that's that's again, that's not A change in law in the s1 12 It's for them to study whether or not that should be a system and that from what I understand from the commissioner Part of what they'd study would be like if they did something like that. Maybe you're not going to need For so much At least not as many types as they have now That's the idea So that's a Separate piece of the bill But also it's all part of this. It's all part of the same package. So as I mentioned Good time got repealed in 2005 This the bill the language in here Um, it reinstitutes it essentially now It doesn't do it quite the same way because what it does is it tasks the department of corrections with doing it by rule So instead of putting every parameter every element of this good time program in the statute It says to the department you come back with a rule and it gives them a time They wanted some time on this. So I think it's july 1st 2020 But by july 1st 2020 they have to come to lcar with a rule that reinstitutes a good time program And the way it's going to work is you get five days off your minimum and five days off your maximum for every 30 days for every 30 day Window for a further day group period of time during which you've either Not been charged with a major disciplinary offense So that would apply if you think about to everybody who's incarcerated Because only if you're incarcerated do you get can you get disciplinary offenses? If you're out in the community either on furlough or supervised release. They don't have dr's so Uh, if you're incarcerated and you don't get a major disciplinary offense for your 30 day period Then you get five days off your minimum five days off your maximum If you're not incarcerated if you're out on furlough or some community release program That what applies to that person is you have to not be reintegrated You would not have to be Reincarcerated from the community For a violation of conditions. So as long as you're not as long if you're out there for that 30 day period of time You don't get pulled back into Incarceration because you violated some of your conditions for being in the community That doesn't happen to you then you get your five-day reduction too Does that make sense that's that's proposed of how it's going to work now again The the rule is going to be where some of the details are going to be but these parameters of who it applies to Are in the bill are in the statute and uh, and then doc's got a year and a half essentially right a year and a half or actually That's July 1st 2020 so yeah Actually two years Roughly two years to come back with the rule Um Yes, but it applies to all crimes except for people who are sentenced to life without parole Even the Yep Yeah, it's the big 12. It does apply to everybody other than the life without parole um, so the issue that uh, that House corrections and institutions Wanted you guys to look at is a sort of a concept that's related to good time It's not exactly the same thing and it's but it's a similar idea and this is the idea of Substance use disorder treatment and getting a reduction in in your sentence for time that you spend in an inpatient substance use Disorder treatment facility that makes sense to everybody So, um, as you can see that Although it's similar to good time because you're getting a reduction in your sentence for some behavior that you engage in It's not exactly the same thing and because it's a sentencing issue It's a criminal sentencing issue. It's not an issue of what the what the commissioner can do to your sentence after your If you've already been sent Because good time you've already been sentenced the commissioner can reduce your sentence because of this behavior that you've engaged in Um While you're under dlc supervision is a separate issue, which is uh What if you and you you know, sometimes this happens. It's not unusual The person for example gets uh, charged with dui person Um, can go into an inpatient substance use disorder treatment before they've even been Their court case has even gone through before they've even been adjudicated You can get time you can get credit for that time that you've served in the inpatient facility And my understanding from judge gerson is that as a matter of practice that that happens currently anyway So in a sense, this is just codifying what is already the case So there's no consideration for outpatient. I mean there's some people that you know, what may continue to work and You know be a good employee and you know in five nights a week they go to outpatient, but that Doesn't apply here. Not in here, right? No, you certainly could. I mean that's a policy choice for you guys But this only deals with inpatient treatment to And I Are we in this section on page four? So we're really just using inpatient and residential treatment honestly, right Well, and the difference is You can get a day off, but it doesn't it's not eligible time Well, this is interesting. So This piece that you're looking at now that actually is Related to what the commissioner can do and this is more closely connected to good time So they thought about it as to who would have authority over this person so it depends on Whether they get the treatment pre adjudication before the adjudication or afterward So right here this subdivision that you're looking at subdivision three is post adjudication That's after the person has left guilty or been found guilty or something like that Whereas if you look down I'm just going to skip ahead a little bit here to See there's this if you look at page six and this this is the folks who get Treatment pre adjudication and this is in the Section of law in title 13. So this has to do with the sentencing statute that you have on the books already Yeah, I mean it does helpful as representative Colburn was saying it sort of helps for understanding To know what's going on in both those sections, but this is the one specifically that that They were noting for this committee to look at because this is a title 13 criminal code sentencing issue And in this case you see top of page seven And and you already the two subdivisions one and two already In other circumstances provide the court with authority for giving credit for time served or other things related to Conduct that the offender has been involved in so this sort of adds to that list and this is all right Well, if you receive pre adjudication treatment and that makes sense if you think about it because at that point If it's before the adjudication Prior to what I mean by before Um, then the court it's still before the court when the defendant comes Up for sentencing or for the trial and it's still An open matter for the court to consider and decide whether or not the person's sentence should be reduced for this Drug treatment that they had or the cell call treatment Whereas if it's post adjudication if it's after that's already happened and the person's already been sentenced Well at that point it makes more sense for the commissioner to be the one who's Um Reducing their sentence when it's appropriate. So that's why you were just noticing That in the in page four The post adjudication education stuff stays with the commissioner that stays with what what they do because at that point They have authority over the person They are have the ability to reduce their sentence because I guess according to Commissioner and some other folks in doc that does happen sometimes even after adjudication the person will go to inpatient treatment facilities and They wanted to make sure that You got a one for one because remember what I said about good time. Good time isn't one for one It's five days per month So this allows this makes sure that the person would get If you were in for two weeks, then you could get 14 days Even if it was only in one month But you see that second or if you look at that provision the second sentence This is a They didn't want there to be double dipping in a sense so that well in other words You don't well the person's in substance abuse treatment. They're not going to get good time for that same period of time In other words, you can get your 14 days off But that 14 days won't count as a period of time during which you can also get that other five days off for for a good time See what I mean does that make sense So So right now you were saying the commissioner So Here's what i'm struggling with. I know that we have people who Can finish serving their minimum sentence At lund for example and get treatment as part of So would Yeah, so how is that situation? I mean, I don't think people well, they're finishing their sentence They're not getting good time Maybe and they're just allowed to complete the remainder of their sentence Right at and we're not I'm sure we're not the only program right right now. There must be other treatment programs where that happens Yeah, I I don't know the answer up top of my head. I see the marshal may I see his harm being raised over there That's one of my preferlo. Um, so the commissioner can give somebody furlough You know the same way that we You know typically people are programmed within a doc facility in the period leading up to their release, but if there's uh You know, if there's some kind of treatment that's better done in an inpatient facility somewhere The commissioner can furlough them to that facility. It's just like a medical furlough or you know I can't but I can't name all the kinds of furlough. We have at this point I think he said 28 But that's one of the kinds of furlough is to so they're in that situation They're still actually technically Right commissioner Serving their sentence serving their sentence right in one So again back to okay What we're looking at. Yeah, I just want to make sure how so this is They've been sentenced, but they haven't been um Put in Correct. They're they're not incarcerated yet Well for the for the pre adjudication group Uh, they might not have been sentenced yet. Sometimes people go to They'll go to a treatment program before in order to sort of show the judge. Exactly. Exactly But uh, but for um If they were completing their sentence and the situation you described and there's no and and they never come back in Well, then this wouldn't reply to but but if you had to if they were going out for treatment while they were in sentence and they did come back What this is saying and this is on page four. This is saying that let's say they went out for two weeks I'm just throwing a number out there. Um Then um And they come back and they had a month left on their sentence Well that according to this would they would have only two weeks left because that two weeks would count Um So So one not concerned, but it says one while a person is in a residential substance abuse treatment That's not our committee Yeah, but I think it uses the same language. Let me just double check. I might be wrong on that. I want to check on it Pre adjudication treatment An inpatient setting. Let's just see if it uses that same language. I think it does but I want to double check on that Pre adjudication treatment inpatient setting for something. Yeah, so that part is the same, right? So your concern is about the Just the wording because again, um dual diagnosis and dual treatment is Best practice and so there are lots of programs That provide for example like lund is an outpatient substance abuse program not a residential one and so It wouldn't I don't know why it's just defined as residential substance abuse as opposed to mental health slash substance abuse or treat Again, depending on what the treatment is I don't know if that's just talking about the aid apps certification And that might exclude programs that They didn't mean to exclude Yeah, I don't I don't know I got that language from our health care team. So they said that's used for that specific Uh universe of folks But as far as whether it might unintentionally exclude somebody else or whether you might want to include others other than it has to be inpatient Right, um leave that point aside, right? Um, I don't know, you know, right because like the retreat has a bunch of different programs some or some so again, it might be dealing with the underlying substance abuse issue As a secondary diagnosis and trying to deal with the mental health diagnosis first in order to be successful with substance abuse treatment Right If that they want I kind of Yeah, I have I mean, I think just I mean it's um mom's question and a little of barbers question like I I mean I can speak to the inpatient one The inpatient one is because the idea here is that you get credit That's what's similar to being incarcerated Outpatient treatment is not not the same thing not to say that you could make that policy choice But that's why the the parallel is John so, Eric, um So somebody in the good time somebody uh cruise sometime doesn't matter how much comes off the Minimal also comes off the maximum right so they reach their minimum a little sooner. Yep So after you reach that minimum does the Every 30 days. Are you still collecting another five days heading towards your maximum? Yeah, if you stay in sure definitely Yeah So just going back to what Salima's saying there's a big difference besides being inside the gate than outside of the gate. That's why it's written differently I would think That's true Right. I mean, that's what I'm more freedom outside You still got a base Again So on on the first page on 14 right if the The commissioner of the chief's carriage and everybody pepper probably Marshall and everybody if that if if this bill is written the way they want it, what would be the problem? Why wouldn't we why when we give our old page? Sorry, I guess I was supposed to be looking at you. No, no, actually you were you were right to look at the other folks not me I get that far but So These guys that wanted all this up down. They haven't seen this yet. They haven't looked at this bill yet Actually But in a different committee it's it's it's it's it's it over in house corrections institutions Yeah, there's a couple of a couple of last-minute sort of language changes and then the other The the other issue that they're talking about is applicability does it apply going forward or to offenders to our sentence right now? That's sort of the last Conceptual issue other than that. There's a couple of little language pieces and they're pretty close. I think That and I think the other thing they talked about was that there's a victim notice issue there That victims at the time You know if now the sentences are reduced when a time that wasn't permitted in law before that Might be a concern for victims Yep Yes, oh, yes This very last point I think Because it's still in the discussion stage. I don't know that they've discussed that with victims yet Well, that is the way the way it's written now is exactly as you say or Which is right there you see that it's on page Four line 19 and 20 So right now, it's available only to a fenner sentence on or after it is going forward, right? Only going forward. No only going forward. I wanted to go to whoever's already Oh, I see Gotcha. I misunderstood. I thought you said the exact opposite But now I'm clear Or I need to listen I need to listen better one or the other So does does this apply to only people who are Good time does it only apply to people who are incarcerated? No, it applies to people who are under the custody of the commissioner and that could be Or is that language? No, that's what I thought Because that even brings up more of an issue to me For somebody who does No patient treatment Because if not everybody if everybody was getting incarcerated and somebody went to residential, I understand that being In a sense locked up for locked up and but if if it applies to people who are in terms that are basically convicted and Are on parole and out on the street and if they go to treatment they get no credit for Not that not that it's your job to cure that. Right. Right. It's my concern It's not to me. It's not treating people Right, I hear right, but just so you know who it applies to that's on In subsection b line there So it's all sentenced offenders including furlough defenders and then there's a list of exclusions not available If you're on probation or parole If you already that highlighted language there means you already get good time under the work camp statute Or if you get life without parole I think it's feedback because it's not formally in there. Okay, so there's nothing to vote on. Yeah at the moment so I certainly would Support this and I think my feedback is that I have some of the What same questions that tom and Barbara have been raising particularly knowing that treatment communities and discussions that are happening around the state there's there's definitely Questions at times are around the efficacy of inpatient settings compared to outpatient settings So I I just worry that I definitely get the like locked up to locked up But I mean It isn't it isn't right, but I worry at there's just a little worry that I have that we're incentivizing Treatment setting that might Not work as well for a number of people. So, um, yeah, so representatives I have this and shot Coming a few minutes and tell us what what they were thinking And I was just asking we're not we're not like voting on this we're just sort of giving up So like are these two guys in favor of this? Oh, yeah I said, I don't understand a word You guys came in just in time The chair I've got my buddy with me We got another drive come No, I don't know what section and you want the three or the post you may take that out At Yes, that's your post adjudication. There's two pieces here one page four Which is um Line five section line five deals with Post adjudication. It's in title 28 It only pertains to corrections. It only pertains to those folks were sentenced And in a correctional facility Well, not just in a correction So they would allow they would be getting good time day for day and it's a doc process if you look on page seven section four Now as you said that's for people who are convicted Post adjudication is convicted. That's your world not us I'm still learning Pre adjudication is they have a charge Okay, they have not been sentenced So this section four Is entitled 13. So it does not pertain to corrections. It pertains to sentences And the judiciary So if a defendant it's not going to be a fender So fender is people under the custody of the commissioner corrections. So we're correcting that To a defendant which is someone who's been charged If pre adjudication They are in treatment subsequent to the charge that's being filed Then when the sentencing is done The judge can take into consideration the reduction of day for day In their sentence That's the intent to this section Yes How much you got questions about good time People are confused So I think some of us Questions about and I sort of understand it conceptually but just Just like more from a public health view point you think some of us had questions about why when they all need to inpatient treatment It came from the defender general This request came from the defender general and the request came it was matt polario who testified in our committee And the testimony he gave was that this would provide incentive for folks to get into treatment If they could get good time And then when we started looking at it, we said wait a minute the judge doesn't give out good time as corrections So that's why we put the pre adjudication into sentencing because that's incorporated right now In terms of their sentence that if Before their sentence are involved in treatment Then that's taken into consideration When the judge sentences them and we're saying it would be day for day that if they're participating in a treatment inpatient treatment whatever My glasses because we've had so many reiterations of this inpatient setting That is subsequent to the charge that's being filed for them against them Then when the judge sentence if they were there for 30 days And an inpatient then 30 days would be taken off that sentence Back and you can take it really bit. I mean I certainly support that concept and I would love to see it expanded to Inpatient treatment without patient treatment because I think it's not our call I mean that's up to you folks. I mean, we're we're doing the language as a defender general recommended to us Did you have any discussion at all on the L patient? No It was at a recommendation from the defender general To encourage folks to get into inpatient treatment substance abuse treatment We've been waiting lists to get into inpatient treatment. So suppose someone did want is that still a barrier? Is that comfortable news? We're not waiting to get into that detail This was a recommendation from the defender general. So you might want to ask the defender general and judge Did you want to say somebody You're in the little chair That's why we wanted you folks to take a look at this because originally This language was under title 28, which dealt with good time Well, the court does not It does not award good time only if you're incarcerated And you're under the custody of the commissioner of corrections and you have already been sentenced Detainees don't get good time So it was pre and post adjudication The original language and now we have split it Where post adjudication is under DOC for good time pre adjudication Is in title 13 so that if there is inpatient treatment The judge takes that into consideration when placing the sentence that it's a day for day off that sentence So if the person was in an inpatient treatment for 30 days The judge takes that into consideration under this language if the sentence was 12 months He'd take a month off because he's already served So it'll only be a lot of months No, a day for day That's a different world Unless you're So we heard earlier today Speak up We heard earlier this afternoon From judge Gerson I think you might be interested hearing what he has to say, but this is We've heard that this is current practice from the judiciary now But they are putting people into giving them credit for time served Prior to being incarcerated It's where this differs from what they're doing now is is now is that you get good time for that you get day for day for that In that is a little different So I think your judge could also help you shed light on that So this is a slightly different question It kind of comes into the sentencing commission work that I'm sorry We do have a number of statutes that are offenses that have minimum sentences by statute Is good time something that can be calculated to reduce the minimum sentence They're for both minimum and maximum But in the way I mean, I understand that the judge can set a minimum in that So if it's the statute on its minimum So it's essentially notwithstanding these other provisions that say to this crime you have to be in for at least three years Well, that's That's why we brought this to you in terms of the pre adjudication Because that's your world The post adjudication where you're incarcerated is our world so we understand that better But our understanding from what also from the judge and what butch said that this is current practice right now For sentencing and if you look at the language would earn A reduction of one day in the offenders minimum and maximum sentence for each day that the Offender receives the inpatient treatment. So if that's happening right now How is that being played out? With our statutory minimum and maximum requirements. I don't have an answer to that I'm sure the judge or Folks who are used to working in the criminal justice judiciary system I guess it's a question of just if there's needs to be a notwithstanding that might even be just a question for Eric I don't know for the record Brian Greer's chief superior judge At present someone comes in for sentencing if they have been in a treatment program We give them credit the phrase is credit for time, sir So in that sense We're doing this, but we don't necessarily take it off the minimum or and maximum We let the department Do the calculation In other words, someone will come in if they've been in a treatment program for 30 days We give them a sentence of whatever it is six months to a year The credit for time serve and I believe the way that department calculates that it's probably 30 days off the minimum So in that sense, I was wrong I don't believe that it comes off the maximum at this point, but we do give pre adjudication credit for treatment So even if the statute says you have to serve at least three years the point is you're saying So you have you'll still end up serving three years Yes So can I ask the department does the counting can I ask a question about two? Setting this aside, but if the person decided there was bail and the person decided not to make bail and there were a detainee And they stayed there until they were adjudicated and they were there as a detainee for 30 days Those days each day counts towards their sentence So we that's why we look at treatment right now as essentially the same as if you were detained You're getting credit for that time that you're in treatment Okay, so it would be the same scenario where the sentence would be x amount But then doc would calculate that and say well There's 30 days automatically taken off because there's a detainee each day counted towards those the time served And that's why people don't make bail quite often because they want those days To count towards their sentence A little editorial So i'm wondering at its throat other types of treatment currently count so I was saying many times people need mental health treatment or Co-occurring treatment in order to successfully get out of their addiction so I was saying one for example is not an inpatient residential substance abuse treatment program and People are currently going there as part of their men or they can but it's The way the amendment is written now it may exclude other mental health programs too, so I guess I was wondering, you know, what How treatment was being defined and to salinas point if someone's in intensive They could be an intensive outpatient treatment You know, are they getting credit? I would say that they're not getting credit for intensive outpatient treatment because the way we're looking at treatment in the residential setting It is It's residential. I don't want to say you're confined there, but you know, you're right as long as you're there participating in the program You know, you're right. You're restricted. They're a liberty restriction. Yes. You're doing it voluntarily right, but So that's why we Analyzed it to be quite detained for those 30 years. We'd rather have them in treatment, but Get them credit for that time. And so we can't really do it on an outpatient basis Because I don't know how you calculate it. Yeah, and what about the mental health versus, you know, that's interesting. It depends I'm not I'm not aware of any So Or for example, again, and maybe one human anomaly but people are getting residential mental health treatment and outpatient substance abuse treatment because Let's just have a funded But there may be other Has a number of programs some of so people are getting treated for corporeal disorder, but if they're not addressing the underlying issues sometimes that And my other concern is if it's after I mean, I'd want to hear from folks in the treatment world about if people are using it to leverage getting out early Post-adjudication And I wasn't even aware that the department offered that you're probably and they can speak to it better than I can Different situation Right because as somebody said like a lot of times there aren't openings so If you're if a if a program is looking at who to take There they may be taking somebody who they think is going to be more successful As the limited resources and sometimes when people are seeking it Because their attorney recommended they do it before the court date or something So aren't as into it all that time So it's a whole different setting because they're in they're incarcerated Right, um, they're not going to have You know, obviously the same opportunities and the whole issue of waiting list Would be different If the department is seriously considering this person is an appropriate Residential treatment first of all, it's a clinical decision It's not a strictly a DOC So if I can if I can interrupt we're looking at the version as it came over from the senate And the senate included inpatient setting for substance use disorder So that was in the senate bill as it came over to us. So we didn't change that piece That part of the language Sure, just so um, I'll speak to a couple of issues that might clarify some of this So our recommended the reason we recommended this Is simply to codify what's current law Current law is that you get credit and and the law comes out of a state A case called state being a compete where someone was putting to inpatient residential substance abuse treatment During the period leading up to their trial And the question was do they get credit for time served the same as they would if they had been held in jail for a period leading up to their trial and the spring court said, yeah, sure They should get the credit for that because they are Essentially confined into a Residential treatment setting that they were out of that setting that would get the treatment that it wouldn't get the um The credit and we were just simply looking to codify that because it's being and to codify it in a way That that I think expands McPhee just slightly And clarifies practice because there had been inconsistent practice around one question, which was What some judges were giving credit Only when the residential treatment was court ordered where it was a condition of release Some judges were giving the credit even when the treatment was voluntary And our goal was to make that consistent and to make it so that you got the Credit whether you were court ordered or voluntary because that led to some absurd situations where for example judges Who had a defendant in front of them Who had already, you know, who shows up for their let's say a DUI and says, you know at their At their bail review hearing or the conditions of release hearing says your honor I'm already accepted into a residential substance abuse program I'm heading there as soon as court is over and the judge might not then order them to go to the program Which then Credit for that When in fact the reason why the judge didn't order them to do it was because they were doing it voluntarily in the first place So our goal was simply to Clarify and codify That existing law to make it clear that you get treatment If you do or you get the credit if you do inpatient treatment, whether it's court ordered or not prior to Prior to your conviction The question of whether that should be expanded or not is more of a policy question which we weren't trying to grapple with Here in in this so we were just trying to codify existing law and to answer the question of all the different kinds of treatment It's absolutely not dependent on it being substance use. I've had people get the credit for Being in the retreat. I've had people get the credit for being at the spring valley ranch I've had the people I've had I think I had people get the credit for being in one So it's absolutely not dependent on the type of treatment It's it is dependent on the question that the treatment is inpatient rather than outpatient So Right, and I agree that the way that this is written because it says substance use I don't think that includes anybody from getting the credit for non substance use treatment It's just not going to be spelled out in statute Instead you just have to rely on staking the fee, which is what we all do whenever we are trying to get our client's credit for inpatient treatment anyway, as we just point to the and say You know Here's that you know you bring in a letter from your or from the doctor that says person did Our 30 days of successful treatment at the retreat or whatever through a point to the fee And we get the credit that way. So I don't think it precludes anybody from getting it Um, it's possible that could be clearer We just said inpatient treatment and took substance use out of it So there's uh, there's some treatments that are a year long Inpatient Inpatient Would that be post or pre which one are you talking? Post or pre or they could potentially get the credit for it Chances are to be more pre adjudication Then post though. I may look at doc. We just had testimony from doc about the post adjudication Inpatient treatment, which is more complicated for someone who is incarcerated with a sentence to get into a clinical treatment Facility where it's based on the clinical needs Not so much your sentencing needs, but your clinical needs and monica I don't know if you can expand a little bit on what kim bushew was talking about If you'd like to Well, I guess it would be pre uh, well pre doesn't pertain to that right So if somebody went into a year long treatment pre adjudication, would they be able to get the credit for trans? That would be probably the intent of this. Yeah So if they're doing a uh extended program That goes past the time of their sentence And you know they Because this this credit That we're offering if it's a year Long treatment program You know let's let's say for example And they might have started the program before they went into The facility And Arrangements might have been made for them to continue You know the treatment while they're they're in custody After their sentence. Yeah After the senate's you said it's difficult, but it's it's possible. It's it's possible what i'm hearing, you know, right? You know, I mean if if a They start then their sentence and then they're in custody, but they're continuously in a program Is that what I don't think that just has to go that way No, if if it's a See if it's not an inpatient program, you know, let's let's say for example You know the the particular program requires three or four sessions, you know a A week and It's not So so that wouldn't wouldn't meet Wouldn't meet muster I think really what you're talking about if somebody's going to an extended program Pre-junication a pre-sentencing probably what's going to happen is the court would made aware of that defer the Sentencing a case to allow them to complete the program And usually the way that works and then if they're successful The treatment of that time would then come into play sure You'll get credit for it Somebody that's out in the community first of all If they're not incarcerated the chances of them being incarcerated are Certainly Substantial amount of time and treatment And it's not only you're going to get credit for it, but you get credit on The disposition of the case right if someone's that serious Treatment and recovery it's going to be reflected in what ultimately happens And that was the other words if somebody spends a year Treatment program So I don't know what your thoughts are on this we wanted to make sure we weren't blindsiding you because this is not our world Any suggestions? I know one thing we just talked about in my committee on that section was We're using the term inpatient setting And resident and inpatient treatment And residential substance abuse treatment interchangeably and the testimony we received from doc was The terms mean different things inpatient and residential mean different things. So we need to be consistent That's what we just heard So I don't know if that would be Inpatient throughout or residential throughout But that's something we'll have to vet with Eric Pardon I think it's the treatment world may interpret that differently It's a different thing I mean, it may be a funding source difference or something, you know, I mean like one contract may call something Yeah, so we need to vet that right because Usually it's more if it's substance abuse treatments or post curing right, but not They're talking about hospital per se Which means Yeah, I think he's gonna be reporting the bill Yeah, we're gonna report the bill Oh, I just looking around here sounds like everybody's in favor to send us room Just we gotta figure out the inpatient residential So you'll see a change to this section to clarify Thank you We work well together So Thank you You Right it was like moving change in the word father to biological parents or something Right. Yeah, it's like talk to dcf about right, right something else Yeah Is that tomorrow yeah It's just starting it's gonna take it's gonna take a bit Some of the questions about whether not Expanding it limiting it, whatever right They're constantly being reviewed by by the stakeholders But that Small piece we're going back to prior law where the hearings the public safety hearings were in public But otherwise To start doing anything more could really undermine the entire program Right. I don't think anybody Once said and hopefully our state's attorney's Any damage control, but I saw it anyway, so we should have the committee should know that and barbie should know that If that comes your way, I'm trying to prevent it Right, okay. Thanks, right Then they need to take a recess or something Okay So There she Did she send that Okay, thank you. Yeah, I knew she said afternoon, but I didn't Any questions that that you have while we actually have Stay called into the room to help you for tomorrow I mean, I've had a chance to talk to dcf briefly and know that so I got That the presentation that The presentation because I wasn't here Let me get it right and like where what where what we from because most of it's from like the stakeholder group Right And you're all Late Okay, all right, all right Because our stakeholder group agreed to look at those recommendations and report back on them. So that's They're not being dismissed or anything. We're being picked up by the stakeholder group. That's good. Okay. So I can say that Well, well, we're not in session. I think every almost every other week practically And they have to report back to us in November. So So it's not the end of the conversation. It's not the end of the conversation And I did get Brinzy now great great So, um, so I don't know I'm jumping around much so back to 54. So just um It's alive in terms of process. We don't have a bill And um, so we don't need to take a formal vote Um, I like So Following our recommendations And so we would not necessarily be taking We'll let one be getting right next to one in the process. If they have, you know, interest or questions on What, you know, we we end up hopefully Recommending on an informal level Then they can take it from there. Tomorrow we'll see this package again have a discussion. There's a Something that Yeah, um So But uh with this far is there is some sort of slide in testing and also more Uh, the the concept though is Uh, and I've been asked, uh, I got some additional information from dr. Conti of few states are in fact Using the evidentiary Not roadside, so did she send the research though? I was gonna I didn't ask her for that Just in fact looking for the email exchange for that as well Any event from what I've heard from the expert is that Two percent of Great accuracy relative to blood tests. Uh, so the the concept is that For for the draw of saliva Well, let me just walk through it this way So a person Pulls on the orb observes the behavior does the feel sobriety tests decides to take the uh the The vehicle driver into the station At that time could ask Can explain implied consent? And can ask for a swab of saliva The person can decline But that will be used against the person Just like for a breath test So let's assume the person does agree to, uh, provide that Sample on sampling taken it goes puts into some sort of bio that preserves it and it gets labeled and gets ready to be sent to lab at the end of a Is it just like a breath test? As far as the implied consent as far as you know, there to me anyway, there's no comparison between the two tests So it's I mean, it's nothing like a breath test Can we look at that more? So it's the concept of a refusal and what a refusal will uh, whether to be used or not This is going to be an issue And I do understand they're completely different I do understand but it's just the consequence of the refusal So, uh, we presented as evidence So, uh, after a DRE, uh, does the evaluation At that time the DRE has a decision point And that is whether to seek a warrant To use the saliva sample that actually sent it to the lab and actually be able to use that sample to detect whether there was a drop or not Or or can If they don't seek a warrant the sample is destroyed So the bottom line is that there's not a warrant requirement for the draw or the taking of the saliva But if the if the law enforcement prosecutor wants to use the saliva information It has that they would have to seek a warrant And and we can have Brynn explain as far as warrant requirements whether a warrant Whether a warrant is required or not Uh, depends on really two inquiries as my understanding from Brynn One is how intrusive the Uh, the search is uh, a blood draw is considered very intrusive Uh, saliva has not necessarily been prone to be intrusive. The second Can you clarify that? The second component But just like physically intrusive, I think is Physically intrusive. Thank you very much. Thank you very much Uh The second component for looking at whether a warrant's requirement is whether it's intrusive as far as privacy and such What is the information that is going to be used? Whether it's uh DNA or whatever the case is That's we can have Brynn explain this better than I can Because you're getting that second hand from Brynn for me that the warrant requirement again has these two components Uh, and and we're essentially suggesting This next graph and I'm working on Would have the warrant requirement for getting information for that privacy component of it But not for actually getting the draw and the reason for that is The saliva has can in fact be a better task even than blood If you're a lot closer to the kind of the Incident or most because of the metabolizing of various substances Blood test happens much later So it gives you more accurate Whether there's presence of the other substance or not so that's a nutshell What that is No, I'm not confused Well, yeah, I'm giving you a heads up. I'm happy to hear The idea is that it does bring in For purposes of law enforcement what they from what I understand from from pepper others Including the governor is as close to The incident as possible Uh So again, we need backup evidence because it's That sort of flies in the face of what I've read and I can't find And where it's used in other states in some cases they um It depends on the if the state is a per se state Or not because again, that's the same thing when we say for other countries If we are going to arrest someone for cocaine because it doesn't matter when they used Absolutely, but to make the generalization that it's closer to the time so it's going to be more accurate I want to see the scientific Like I want the backup I because there are so many studies Some of them are again by the manufacturers I can't find a lot about lab safety versus Roadside safety. I will look for that, but it would be great to get that data So I would guess You said The consumer Would exactly what evidence we're actually getting to me. You're not getting any evidence So it's closer to the time You're getting the the presence of different metabolites Not just uh, just uh, let's just talk about cannabis Yeah, I think uh THC, um Studying that in fact Barbara Gaidney talks about how uh, it metabolizes and how a blood draw Though uh, the gold standard generally a big problem is how many hours after Incident We actually can draw a lot So I need to talk specifically about Even if the driver had smoked the cannabis let me see what this is Even if the driver had smoked the cannabis one minute before the traffic stopped the driver's breath was at 8c Level would have fallen 80 to 90 percent in the first hour after ingestion It's explaining how quickly it metabolizes Even more so after two and a half hours So what difference do levels make when I've been doing this testing process? Well, whether you're going to find the presence at all So if it goes to zero Potentially within two hours And even more so after two or after two and a half hours It's showing figure one Because everything we've heard and talked about is uh, the stage of your system for a long time Oftentimes yes, but I don't think that's a case for that's that's For a user who uses it a lot. Who study is that? That's part of the graciousness. Oh, okay So if we're saying the I mean, I I guess I'm I'm just questioning why we would treat the blood and saliva Evidentry tests kind of Because I think we're saying we would still require a warrant for What evidentiary tests, but you're saying We wouldn't require a warrant for the draw only to then have it be as visible as evidence for a saliva test We need the work if you're actually going to Have a test if you we can write it so you can have you have to have a warrant before you send it to the lab But that's different from blood, right? It is it is different than blood Why we're hearing that the same That blood has the same kind of time True and that's why we're trying to find something that allows them to have the fluids as close as possible And you can't do that for blood because even to draw blood you have to have a warrant I suggest you make that there's not any kind of law that As I understand There's a good argument I don't believe that there's any established warrant requirements for drawing or for giving a slide from something And there may be some cases here and there. I think it's no it's it's not a settled question like And if you're allowing the draw of the slide of the swab But you're providing that protection of the information by requiring the warrant for actually using that it's trying to Yeah I mean Yeah, the way I mean so right now somebody could Law enforcement officer when you get back to station can ask for consent Then draw they can do that for blood for you I would ask them to hospitalize you for a consent which stopped in there but they could ask for consent and There's really not that much of a motivation for somebody to consent to that But let's try to take the breath test. You ask for consent for the breath test. We have been sharing breath test I have to protect parents If you decline that can be introduced as evidence in case of any decline but You can't from my understanding you can't do that for a blood test if you if you ask for Consent for a blood test They need to be fine. Nothing happens Until you get the warrant once you get the warrant and if you then decline after you've gotten the warrant So it's trying to split this between the breath test and the blood test as well I mean because it was a little bit different animal. It's not as inclusive as the blood test but we're trying to Protect the civil liberties part of this as far as any kind of use of that the information that's contained in the pool and that's what that's trying to get at Just I'm thinking Should we give you protection? Is it the idea today that council can be required or requested Before we do the blood test? Should there be something in there that says I mean I'm trying to set it up as close as possible Is that I think that it would be implied because I think When I mean it would be a good thing to clarify but when You make the defendant or the operator aware of their opportunity to talk to an attorney and you have to provide them with Kind of a test to see if I remember it. You have to They have 30 minutes To talk to an attorney and then you have to make multiple attempts To contact an attorney, but the timer starts after that first attempt to call an attorney To avoid the scenario where you're spending three or four hours trying to find an on-call attorney I mean that never really happens. Usually the defense attorneys pick up the first time But the person has half an hour to up to half an hour. They usually take 15 minutes To talk to an attorney before deciding whether or not to submit to an evidentiary test whether it's breath or And this would happen at two o'clock in the morning. Oh or four o'clock You would call your own attorney You call so each yeah, yeah, you call There the state has on-call public defenders 24 hours a day for cases like this What about those of us that don't use a public defender? You can also you're also able to call your own attorney That's two or four o'clock in the morning. He probably would just say you're going to jail Perhaps you should wake me up again by and see what happens. That's why that's why you should call the public defenders We're up at two in the morning. Yes, okay