 So, why don't we get started with Bryn? I don't really need a big walkthrough room, but just kind of quick and dirty. It doesn't look like there's a lot. We can do quick and dirty. Please. So, good morning committee. For the record, Bryn Hare from Legislative Council. I'll do a quick walkthrough of H-237 as it passed the house. So, starting with section one, this sets out some legislative intent, which you can read for yourself, provides that it's the intent of the General Assembly to have a sufficient number of drug recognition experts to screen all drivers suspected of driving under the influence. Section two, this is the definition section. We're under the influence chapter in title 23. So, this just adds a definition of preliminary screening. So, as you all recall, a preliminary screen is the test that's typically taken at roadside when law enforcement has reason to believe that a person is driving under the influence. They can offer a preliminary screening test. The results of that test are not admissible to show evidence of impairment at trial. So, this sets out a definition currently under current law. This language about permissive inference is a little bit buried. So, this is intended to draw it up to the front, the definition section, and make it clear that results can't be introduced at trial to show evidence of impairment. And that the result of the preliminary screen shall not by itself constitute grounds for probable cause for an arrest. So, moving on. The next section is, this is a DUI statute prohibits driving under the influence of a drug. So, there are only technical changes to this section. It looks like new language, but it's just moved up. What's 0.16? Pardon me? In section 3, 12.01, enhanced penalty for BAC of 0.16. In the title. Oh, I see. I wonder if that needs to be updated. I'll take a look at that. It comes back from the day when it was 1.015. I'll take a look. Let's see where that comes from. So anyway, technical changes only there. We just move up that 0.04 for commercial vehicle. So, I'll move on to section 4. This is the implied consent statute. So, as you'll recall, currently everyone who operates a motor vehicle in Vermont is deemed to have given their consent to an evidentiary test for the purposes of determining a blood alcohol content or presence of another drug in their bloodstream. And the evidentiary test is admissible at court to show evidence of impairment and is required when law enforcement has reasonable grounds to believe that a person is operating under the influence. So, the changes here add saliva to the implied consent statute. So, if you look at page 4, subsection 3, this adds the saliva test to the implied consent statute so that if law enforcement has reasonable grounds to believe that a person is driving under the influence, then he or she is deemed to have given consent to an evidentiary saliva test. How do we know they wouldn't use it for DNA information? Well, there is some language there, some specific language at the end of that new subdivision that the saliva test is only to be used for the limited purpose of showing impairment and shall not be used to... You don't, I suppose, except for that they are... They don't destroy the evidence and it backs to the individual. Can I go back and ask a question? What, under the definition, to detecting the presence of a drug? What drug? I mean, is there a definition of what drug is going to be identified by the saliva test or is it just any drug? Right, there would be any drug. So all, if you remember, under the influence is defined to mean if your ability to drive is impaired to the slightest degree so it could be any drug that impairs your ability to drive. So if I took four ibuprofen, it would show up? I'm not sure if ibuprofen shows up and I'm probably not the best person to answer what exactly shows up in the saliva test. But there's no definition here of what drugs we're talking about. Not in terms of the saliva test. I mean, the definition section does define drugs as any regulated drug under Title 18. But because the driving under the influence statute says that under the influence means that your ability to drive is impaired to the slightest degree, it could be any drug that impairs your ability to drive. Pardon? House of Representatives passed this bill. They did. So anyway, if we were to move forward, I would certainly want to be clear about how you would assure that they're not using it for any other purposes. I mean, obviously DNA is drafted from them. It wouldn't be invisible in the court, but they might be good to solve a crime. I don't know I'm asking out of ignorance. Is this, maybe you're not the person to ask this question, but does this test exclude those drugs that might be present that do not? I don't believe so, no. I think we need to ask someone who actually, there are a number of, because I understand, a number of people's organizations that sell this test. And it depends upon what state by, if this was allowed, what form of the test would it state by, and that would determine how many drugs it tests for. It doesn't test for every drug. I think they all test for marijuana, probably tests for cocaine, heroin, things like that, but I'm not sure it tests for benedryl. So do they test, does it test for, well, maybe I should ask that. I'll wait. I think one of the main factors or somebody I thought, somebody. Yeah, yeah. I'll wait and ask a question. Thank you. Okay, so if we're moving on to page five, if you look at subdivision B there, so this under current law, if you refuse an evidentiary breath test and the officer has reasonable grounds to believe that you're operating under the influence, that can be introduced as evidence. Your refusal can be introduced as evidence, so it just adds saliva. So if a person refuses an evidentiary saliva test, that can also be introduced as a criminal proceeding. Moving on to section five. This is the administration of test statute. Add saliva throughout. So just provides that a saliva test has to be administered by a person who is certified to do so by the Criminal Justice Training Council. Provides a saliva test like breath tests don't have to be taken by medical professionals. It makes some cleanup changes throughout to remove references to crimper devices. This was all at the request of law enforcement. Subdivision. What's a crimper device? That... Oh, okay, so it's something that we don't... Okay, so I'd like you to know. Yes, so I think there's some old technology. All right, thanks. If you look at page... Is the proper term saliva or oral fluid? I think they refer to the same thing. You could use either one. Was there any discussion in that? I don't believe so, no. So F on page eight, subdivision F. This is the preliminary screen portion of the statute. Just make some changes there to allow saliva testing as a preliminary screen mirroring that language in the definition section. If you turn to page nine, subdivision I. This directs the Commissioner of Public Safety to adopt rules regarding the use of these preliminary saliva screen devices. Directs them to consider standards of the National Highway Traffic Safety Administration in adopting their rules. Can I ask you a question? Back on page eight, it's about four lines down. Failure of a person to provide an adequate breath or saliva sample constant to the refusal. What's an adequate saliva test? What does that mean? I'm not refusing, but I don't have enough spit. What does that mean? So under current law, if you don't provide enough breath to conduct an accurate sample, that constitutes your refusal, so it would be the same for saliva. You have to provide enough saliva to actually successfully complete the test. So the remainder of that subdivision on page ten provides that any saliva testing device that's used by law enforcement has to be determined by at least two peer-reviewed studies to be a reliably accurate method of detecting the presence of a drug metabolite in the body. All they tell you is there's a presence or not a presence. That's right, it does not... They don't tell you anything else. That's right, it does not tell you anything about impairments. What are metabolites? So that's the active ingredient that shows up in your bloodstream, or active component of the drug. It's meant to refer to the psychoactive component of the drug that shows up in your system. So when a scientific study is published, it has to go through a peer-review process before it can be published. A group of your scientific peers, other scientists have to review... Not you. Not Alice and Joe. Not unless you're... We might be... Not unless you're... They're my peers. So if the two peers are reviewed, clear that what that means? That is a... I believe that's the term of art that's used in the scientific community. You're comfortable with it. That is what it means. Okay. So section six, this is just a portion of the independent chemical analysis statute. This is the statute that provides that a person has to arrange their own independent tests, and it just adds saliva to that statute. And then finally, section seven is the permissive inference statute. So this is the statute that provides that if the state proves that the defendant's alcohol concentration at the time of operation met a certain threshold, then the jury may draw on inference that he or she was under the influence at that time. And at the request of law enforcement, we added some language in subdivision B that refers to the combined influence of alcohol on another drug. And 1201A3 is the provision in the DUI statute that it's impermissible to drive under the influence of alcohol on another drug. So the intent here was just to refer to the statutes that were already encompassed in the statute. Can I ask a question about that? Under the combination of combined influence of alcohol on another drug, I understand the limit of alcohol. So if you've had alcohol in your system and any other presence of any other drug, is that what this means? No. There's no per se limit for drugs. Right. So what the statute currently says, and this is just existing law, it just says that when you're under the influence of any other drug or under the combined influence of alcohol on another drug, any other drug besides alcohol, you still have that modifier of under the influence still has to be... But the under the influence is the .08. Is that what it means? No, under the influence means that your ability to drive safely is impaired to the slightest degree. So law enforcement still has to prove that. No, you don't have to. If you had... Taking a thyroid drug. Yeah. Or any other drug. If you have any other drug in your system besides alcohol. Or that they can detect. Well, even if they can detect it, does it make it wrong? So there's no per se limit. So that's just one of the ways that law enforcement can charge you under the DUI statute. The drug test is meaning there has to be some other... That's right, yes. And just because you tested positive for the drugs might get in trouble with the NFL but it wouldn't be anything that you did necessarily... Right, law enforcement has to prove that you were under the influence. The influence in order to... Sometimes you get... I'm also... I've just reread section one. I don't know what the hell that has to do with this. I don't understand either. So I'm concerned that we've forgotten about A-Ride program that did all that work a few years ago regarding the A-Ride program. I didn't even mention it says sufficient number of drug recognition experts. What does that mean? What is sufficient? I suppose that's unforgivable to them. But it's usually... I don't know why the house says something like this in. Which suggests that the only thing is that... I don't mean anybody disagrees with that decision. I thought that we were there and I thought that we can ask the commissioner don't know why that's in there. But doesn't the intent usually relate back to the body of the bill? And this doesn't relate to the body of the law in the bill. Okay. I was confused by that. But I think we've studied this several months. I think we may have put the term geographic. Right. We did. Right. And we have done it before too. I'm reading this for the first time so I'm going to ask a few increments. In a DUI situation, an officer suspects alcohol consumption. Preliminary breath test is given. The preliminary breath test gives the officer the ability to go the next step further and ask for a data measure. This statute is saying, and this bill is saying, that the survival test can't be used as grounds for probable cause for an arrest. By itself. By itself. So, I'm struggling because in the preliminary breath test situation, you have a data master test at the other end of that conversation. Here, there's no other test after this preliminary devices. So what am I going to say? My understanding of the intent of the House in adding this language is that because of the concern that the preliminary saliva test may not disclose information about the person's ability to drive, it may not show evidence of impairment. For example, because if the saliva test showed marijuana, that may not indicate that the person was actually high. The idea was that there had to be some other evidence of impairment in addition to a positive saliva screen before they could... I think that's an excellent question, Joe. Hopefully, the Commissioner of Public Safety or somebody that just wanted to make sure I'm not asking can help you to answer that question. Any other questions? Thank you very much. Commissioner Anderson, and please feel free to bring up as many or as few of your witnesses who told you they had an hour to convince them. Okay. Hopefully, it won't take that long. Well, good morning. Thank you. Tom Anderson, Commissioner... Tom Anderson, Commissioner of Public Safety. I want to thank the committee for allowing us to speak today. Also with me is Dr. Conti, who is the head of the Forensic Lab and can answer any questions you've got with respect to the testing, the reliability of the testing, how the DNA issue was a red herring, frankly, and why that we would not be collecting evidence for DNA purposes and why the lab would not be doing that. So I think that she can provide any assurances to the committee that they need with respect to the DNA issue. So why is oral fluid testing? Why is it needed? First of all, we're on the cusp of legalizing marijuana. To live first, marijuana will be legalized in the state of Vermont. And it seems like the opportune time to make sure that we have to improve and enhance our roadway safety. Vermonters have the right to drive their highways without necessarily being endangered by impaired drivers. I think we all can agree on that. I think they rightfully expect that as part of this marijuana legalization that the state is going to do all it can to stop and arrest people impaired by marijuana and other drugs. I think that's a fair thing for Vermonters to expect. Governor Scott has made clear that addressing roadway safety is preconditioned to any further consideration of marijuana legalization. And this is a step toward that. Oral fluid testing for drugs is simple. It's non-intrusive. Tests for the presence of drugs that impair drivers such as marijuana, opioids, and other drugs that are impairing. Both the governor's Opioid Coordination Council and the Marijuana Advisory Board have both that the legislature takes steps to approve oral fluid testing. That was done after careful study by both of those committees. And it was also part of the Vermont Highway Safety Strategic Plan that oral fluid testing be implemented in Vermont. The Vermont House of Representatives have now recognized that oral fluid testing is an important component of marijuana legalization. So again, why is it important? I think for me and I think the evidence is fairly compelling that once you legalize marijuana it's likely to result in an increased number of deaths on your highways. I think the evidence for me anyway is fairly compelling in that regard. If you look at Colorado statistics they legalized marijuana in 2012. And for their fatality data from 2013 to 2016 shows that there was 40% increase in the number of all drivers involved in fatal crashes in Colorado. It went from 627 to 880. Colorado data shows that marijuana related traffic deaths when a driver tested positive for marijuana more than doubled from 47 deaths in 2013 to 115 deaths in 2016. In Colorado, marijuana related traffic deaths increased 58% in the four year average that is 2013 to 2016 since the legalization of recreational marijuana in Colorado compared to the four year average that being 2009 to 2012 prior to legalization. That was a 58% increase. In 2009 Colorado marijuana related traffic deaths involving drivers testing positive for marijuana represented 10% of all traffic deaths. By 2016 that number had doubled to 20%. In 2013 in Colorado drivers tested positive for marijuana about 10% of all fatal crashes. By 2016 it had doubled to 20%. The Washington state was the other state that has legalized marijuana sort of the track record we've been looking at. The numbers there are equally grim. Fatal crashes involving drivers who recently used marijuana nearly doubled from 66 to 116 two years after Washington legalized marijuana. Of the 462 Washington fatalities in 2014, 21% at marijuana impairment is a factor. In 2014 fatalities involving a driver testing positive for THC alone or in combination with alcohol or other drugs increased 108% over the previous four year average went from 36 to 75. I think also another good comparison is to look at Vermont. In 2013 I believe and if you look at the pre and post decriminalization of marijuana in Vermont where at least one driver tested positive for marijuana the results are this. For the three year period pre decriminalization that being January 1st, 2010 to June 30th, 2013 there were 71 crashes. For the three year period post decriminalization that being July 1st, 2013 to December 31st, 2016 there were 91 crashes. That was a 28% increase in crashes again where at least one of the drivers in the crash tested positive for marijuana. I picked out the data from 2013 and 2017 because we had roughly the equivalent number of fatalities in 2013 and 2017. So in 2017 we had 63 fatalities in Vermont. It was a high number of fatalities. 29 of those fatalities 29 were under the influence of drugs or drugs and alcohol in those fatalities. 18 tested positive for Delta 9 THC 11 suspected of driving under the influence of drugs and or alcohol. So a combination of drugs and alcohol. In 2013 we had similar highway fatalities. We had 64 highway fatalities in 2013 and in that year 18 were under the influence of drugs or drugs and alcohol compared to the 29 in 2017. 11 tested positive for Delta 9 THC and 9 were suspected of driving under the influence of drugs and alcohol. So again we saw increases in the pre and post decriminalization in that area. So I know there is some confusion and we've already had questions this morning about how this oral saliva testing and I think those terms are used interchangeably. Oral fluid testing is probably the more correct way to refer to it but I don't think there's a meaningful distinction between the two. So how does this work? So there is a preliminary screening it's similar to a screening done in DUI cases. This is the equipment that the opponents of oral fluid testing claim is unreliable. It's the preliminary roadside testing. That is the equipment that they claim is not reliable. The house transportation took testimony from two renowned scientists on this issue of reliability and both said they are reliable. They have a reliability rate of 94 to 98 percent reliable. The state police piloted one of these a couple of years ago we had similar reliability reliability results. Fourteen states have approved some form of oral fluid testing as have Australia and several countries in Europe. So it's not a new concept. So that's the preliminary screening. Then there is an evidentiary sample collected. And the collection of an evidentiary sample at roadside goes through a full laboratory analysis at the forensic lab in Vermont. Right now we test for blood. That's how we do this right now. We test for blood. So I just want to clear this up. The preliminary test which has the roadside equipment which is non-evidentiary. It's similar to a preliminary breath test used for alcohol. If that test is positive then an evidentiary sample is collected and that is sent to the lab where you then have the full analysis where it tells you here's the drugs, here's the quantity, here's the amount of drugs and the types of drugs and the amount of drugs that are in that person's system. The other thing I want to make clear that that testing of this oral fluid is a reliable testing method for over 25 years. So the evidentiary sample that's going to the lab, the reliability of that testing has been at least deemed reliable for the past 25 years. So I just want to show there's no confusion about what we're talking here. We have a preliminary roadside test which I think is where the opponents to this look. And then once you have an evidentiary sample that is a reliable test that has been done at the lab. Now all the time. So I also think it's important to look at the steps to implementation of this. You know legislative approval of oral fluid collection is simply the first step. I mean that is the enabling legislation that allows gives us a legal framework to go about collecting oral fluid testing in connection with roadway safety. You already have I'm sorry. You already have the ability to test blood tests. We have the ability now to test You can say that this person had epsomol or whatever and that's blood. Correct. We have blood tests available for now. Is that used again? You know, a thing to prove impairment or is it still to prove impairment you have to have other factors? You certainly have to have other factors. Otherwise with respect to oral fluid. You cannot just have oral fluid and present a prosecution for DUI just based on a test and oral fluid test. And we're not advocating that. As a prosecutor it wouldn't be a good case to bring. So there's no one advocating that simply because someone tested positive for an impairing drug as part of an oral fluid testing that that would be sufficient to in that case to trial. Either for probable cause purposes or getting it to a jury and convincing a jury beyond a reasonable doubt. And I do talk about that, the difference between the blood and why that is such an ineffective and an efficient way to do this. I'm also concerned about your initial statements regarding the legalization of marijuana. We can't go any further without establishing a saliva test in the house that some people voted for it under the statement of belief that in order to get the tax and regulate you had to have a saliva test. I'm still not familiar with the connection between those two. I think Governor Scott has made clear I'm sorry. I'm trying to go ahead. I think Governor Scott has made clear in his statements that to consider additional marijuana legislation that addressing roadway safety is critically important and is a precondition to doing that and that the oral fluid testing would be is an important component in assuring roadway safety for Vermonters. In order to get the tax and regulate we have to approve the roadway safety. I guess I'd leave that for your interpretation. I think what the Governor has made pretty clear when he signed 511 was that roadway safety was roadway safety and some other things and I forget exactly what they were but roadway safety was one of the critical things that needed to be addressed prior to further consideration of marijuana legislation. Well I'm just first of all I think that the statistics that you gave at the beginning are in my opinion suspect not your statistics but where they came from because one of the things that we heard from Colorado was that one of the reasons it increased so dramatically was because they didn't test before so of course now if they're testing everybody it is going to increase because they weren't testing before but I'm not going to I guess my question is in the other countries where they use this do they have a per se limit just like we do for alcohol do they have a per se limit for other drugs? and what other countries do I don't have an answer to that some of the states have presumptive levels some states don't have presumptive levels some states have presumptive levels like I know Colorado does and some states don't so that's a mixed bag as to whether you have to have 0.5 nanograms per milliliter I'm not advocating that I don't think the science is good behind that there's a fair amount of confusion about if we don't have a number how can we possibly pass this if we don't have a number like alcohol and to me that thinking is we can't think of this like alcohol it's not the same so what oral fluid testing does and what the results do is simply give you another piece of evidence in the total evidence that will be presented in a case it's simply another piece of evidence just like the officer's observations that you were driving crooked talking crooked walking crooked it is the it may confirm the DRE's opinion that the person that in their opinion was under the influence of some impairing drug and then you would have this additional piece of evidence that oh and in there the oral fluid testing show they had marijuana cocaine opioids whatever it happens to be so I what I'm trying to tell people is don't think of it like alcohol we get stuck in this rut of thinking you have to have a presumptive level and you don't this is just another piece of evidence and for me public policy more evidence is a good thing not a bad thing from a public policy standpoint but if it just shows more that there's some other drug there it doesn't necessarily improve it doesn't necessarily prove that there was more impairment because there's evidence of some other drug in the body it does not standing alone no no no but even in terms of more evidence it doesn't if you have a I don't know I'll have to hear what kinds of drugs it tests for and everything else but I don't know that it shows yeah okay so I'm sorry about that and just the numbers I gave you are from they were reported by the Denver Post relying on the Colorado Department of Health right so that's where that data comes from the numbers are true the story behind them is different okay so I'd like the steps that would have to so legislative enabling legislation is the first step we'd have to then I would have to go through the process of picking the device going through going through rulemaking purchasing that device and then it would have to be deployed it would have to be deployed in the field but even after that the whole issue of the admissibility in court will come up so whether you're like or whether utilizing oral fluid will be admissible in court I'm confident will be heavily litigated will be litigated by the Defense Council that it's not reliable under the dauber test it's not scientifically reliable and therefore should not be admitted so that's going to have to be litigated at the district court level the superior court level it's also going to have to be litigated at the supreme court level and as I said I said the same thing before the house that will be hotly litigated and I think the courts are the best place to determine the admissibility and reliability of these sorts of of these sorts of tests so it's a multi-year process I think before we'd ever come to the determination yes it's admissible no it's not admissible how we're going to collect it the equipment we're going to use to collect it it's going to take time to work one of these through the court have you ever challenged the blood test? I looked at that to someone else here I'm confident people have challenged the blood test but that's a good segue let me tell you why oral fluid testing is better than blood testing okay collection of blood from someone is extremely intrusive you're sticking a needle into someone's arm and pulling blood out of them it's also an effective way to do this it wastes valuable law enforcement resources and let me just walk through the steps of collecting blood for you just so you can understand how ineffective this is so first of all an officer's got to make observations of impairment while someone's driving they then have to they pull them over they talk to the individual they think they're seeing more signs of impairment they then do field sobriety tests we're all familiar with those let's say the preliminary breath test is negative luckily I'm not all that let's say the preliminary breath test is negative for alcohol or shows a very low level of alcohol but they think the person is impaired the impairment they're seeing does not correlate with what they're seeing on the preliminary breath test so they reason to believe that the person is under the influence of some impairing drug they then get a DRE in there that might take half an hour an hour to get a DRE there to do their thing reach the conclusion that the person is under the influence of some impairing drug then they have to prepare an affidavit because they now have to go get a warrant for the blood they don't have to find a judge to look at that warrant they then have to go get the warrant to take the person to the hospital for a blood sample so as you can see it is just inherently a time consuming process that then requires someone to undergo a blood sample withdrawal at a hospital and it all depends on whether the law enforcement has reasonable grounds to believe the person is under the influence of drugs because taking blood is so intrusive the U.S. Supreme Court is held that a warrant is required for taking of blood because it's significantly more intrusive than taking a breath sample you don't need a warrant for a breath sample you need it for a blood sample the U.S. Supreme Court is also held that the collection of DNA sample by a rubbing swab or an oral fluid swab inside a person's cheek is a negligible intrusion for Fourth Amendment purposes and the Vermont Supreme Court has also held that a cheek swab for DNA collection and in connection with post-convictions is minimally intrusive and does not violate Article 11 of the Vermont Constitution but they also ruled just based on arrest it wasn't my correct correct so you can't take an oral fluid swab at arrest that's you have not been convicted I very much disagree with the Supreme Court on that because the record is clear in other states where he dishonored just as many of you convicted on the DNA evidence we passed a bill on the Constitution of the arrest so but that was the swab so what makes us think that this same Supreme Court somewhat different would make a ruling supporting this particular bill that it would not would or would not require a warrant they said that you can't even do it I think the analysis for DNA purposes which is a very very different purpose why wouldn't they rule the same way on this I think because I think it's a different standard you're going to be looking at the admissibility of this under a Dawbert standard is it reliable science is it reliable to put this in front of a jury for them to consider along with all of the other pieces of evidence that they're going to consider you admitted that it would eventually end up with the Vermont Supreme Court and I'm curious as to why the result would be any different than it was when they said that they ruled on the DNA evidence that it was permissible that the person had been convicted but not if they hadn't been convicted I guess it's a fool's errand to try to predict what the Supreme Court is going to do but I do think these are very different standards when you're talking about collecting for DNA purposes and you're talking about collecting it and admissibility admissibility for DUI purposes because remember driving is a privilege in the state it's not a right, it's a privilege that the state can put conditions on so I do think the Supreme Court I do think that there is whether it's constitutional permissible to collect a sample of someone's breath or blood that decision has been that is constitutional it's constitutional that we do it now with blood in this situation it's constitutional to collect oral fluid as we talked about DNA collection at booking or after conviction in Vermont the collection of fingerprints is constitutional the collection of fingernail scrapings is constitutional the collection of pubic hair is constitutional the collection of handwriting exemplars is constitutional to me there's little question that the collection of oral fluid saliva is constitutional the collection of it is constitutional to me the issue is whether there's going to be the requirement of a warrant and I think that that is best addressed by the courts that is what we have the courts for they determine whether the collection of that sample will require a warrant or will not require a warrant and believe me there are reasoned arguments that can be made on both sides of that issue I think I can make persuasive arguments as to why a warrant is required and I can make persuasive arguments as to why a warrant is not required but I think that is what courts are uniquely suited to determine whether for Fourth Amendment an article let them purposes a warrant is or not required as I said as we've heard here today opponents of oral fluid will tell you nothing about the level of impairment that may be very true and I think the science is still out on that but that does not mean it's not valuable evidence it is important evidence evidence that a person arrested for driving an influence of drugs in fact tested positive for marijuana or other drugs is an important evidence that prosecutors and jurors should be allowed to consider it's evidence that tends to corroborate the officer's observations of impairment it's evidence that tends to corroborate the DRE's opinion the person was under the influence of drugs and I guess the question is why would we not want to collect relevant evidence in drug driving cases from a public policy standpoint more evidence is better than less evidence there's very good defense attorneys somewhere at this table that will make great arguments as to why it's not reliable or why it's not it shouldn't be enough to convict somebody but it is evidence the relevancy of it the probative nature of it is why we have courts so if somebody blows .02 in a breathalyzer test why don't we use that because again we get back this is a preliminary testing the question is there is no proof that what you get from an oral swab is any more evidence other than a truck driver who has a CDL or a kid who's under 21 has a .02 that's we're not going to use that .02 what happens what does that officer do with that it's either they do not believe there's enough evidence to continue the processing for a DUI there would be enough evidence if somebody just has a trace of marijuana in their oral fluids you would continue on if there was a trace of marijuana but you wouldn't have the test is different the preliminary test is going to screen for drugs so for example if I do a preliminary oral swab but commissioner your officer at the scene is going to continue on if the initial test reveals some level of drugs in the system am I correct he's going to continue on with if the preliminary test shows a positive for drugs yes but if there was no drugs and it was .02 the stop would be over it may very well be over at that point so the so we have improved that's my problem with this so I don't know it hasn't if we go back I think you're narrowly looking at things so I think if you look at what the processing occurs you have it's all against the spectrum the police officer has to have reasonable a reasonable basis to believe that the person is driving under the influence of alcohol or drugs now where does that come from in the normal case it's going to come from the observations of the officer they see the person driving not driving correctly some indication of impairment in the driving they stop the vehicle some additional evidence of impairment they then may have the person do field sobriety tests each of these things is a step so if they get out and do the sobriety test the same argument can be made they walk straight they passed all the sobriety tests last night I had two beers drove from the capital closet to where I'm staying if they had stopped me I would probably have been .02 I guess as good as my weight metabolism all that stuff it's been too long since I did these cases but I'm just suggesting that .03 or even .02 or nothing the stop is over very well could be I mean maybe the guy was following down route 4 down the mountain he wasn't intoxicated he was just reaching for his briefcase and then insisted upon opening it I could watch him as I was driving down and he was swerving he wasn't intoxicated he was just doing something else he was certainly distracted but the question is .02 or whatever the person was is that that stop would be over it may or may not be and you find no evidence of any drugs it's over but if you find some evidence and I don't smoke marijuana so you wouldn't find it but maybe I was in a restaurant I didn't even realize somebody I don't know how it would ever get in so if they found a little bit of that I wouldn't be continuing on through the process she could have been hiking on a mountain on a mountain fight that's the cost but that's where maybe I'm not trying to be argument and I'm not either I'm trying to understand the idea that it sounds like what you're saying unless the test can show some definitive impairment that it's not a worthy piece of evidence and that's where we disagree because to me in the mosaic of evidence it would be a piece of evidence it would simply be another piece of evidence for jurors and prosecutors to consider so for example let's say we took your example where someone blows a .02 they have really no signs of impairment driving was funny because they were reaching down to pick up their briefcase now as a prosecutor you may look at that and say well I have nothing on the BAC I've got nothing on the maybe I have something on the drug test and I have no other evidence of impairment that's not a very good case for a prosecutor but on the other hand if you have a case where the person is driving their driving is not correct their talking is not correct their field sobriety tests are not correct the DRE thinks in their opinion they're under the influence of an impairing drug the fact that they then we did a test and well they did have an impairing drug in them that is relevant evidence and arguments being made by prosecutors as to why it corroborates everything else and good defense attorneys will tell you exactly your argument it doesn't tell you anything about impairment it doesn't tell you anything about whether this person was impaired or not those are things that courts do all the time every day in the state and around the country so I guess that's what we did wrong I didn't mean to I know you have some more comments that's all I've got I have Dr. Conti any questions you have on the reliability issues what we do with the test what's going to happen to these what's going to happen to the preliminary the preliminary breath test really just gets thrown away that's not retained at all why is that I shouldn't worry about DNA why don't you let Dr. Conti answer that thank you I hadn't I can't it really knows good good morning to the record I'm Trish Conti I'm director of Vermont Friends of Apertory thank you for having me it's nice to be back I think it's my first time this year so basically I'm happy to answer any questions but I will first address some of the questions that have already come up through testimony this morning and I think Fred will back me up but as far as these roadside saliva testing devices are concerned the scope of drugs that they encompass are impairing drugs they're not going to be your thyroid medications your birth control medications over the counter medications it's major categories of the most commonly impairing drugs you're talking about cocaine, opiates methadone benzodiazepine so your most commonly things that are found in people that are observed to be impaired by driving anything under the sun you could be taking and following prescriptions for so that's a moot point and not a concern as far as these tests are concerned sure would mean by isolate so there are qualitative tests so what you're going to come back with is based on the 7 categories of drugs you're going to come back with either positive or negative for each category so it's going to say cocaine positive or negative, opiates positive or negative, cannabis positive or negative so that's all you're going to get for the preliminary test that leads to another question with the blood test we discovered there was some level in a fatal accident there was some level of marijuana in the blood that doesn't tell us where the person was impaired by that marijuana it only tells us there was some level absolutely and so when we correlate those into public safety concern is there some level that one would see that in other states where they've determined that this is probably somebody in there so the other heroin or any other drug sure so the other states have some level where it would be per se so other states like Colorado or Washington who have set limits of 5 nanograms for the Delta 9 THC which is the active metabolite of cannabis 5 nanograms is that a lot? it depends I mean for somebody that doesn't smoke could be, for somebody that's a habitual smoker it might not be the thing with setting for same limits for drugs is administrative decisions not necessarily based on science and I think even the policy makers in those states will tell you that I would be hard pressed to find a scientific expert in the field who would say that at a certain limit 100% of the population is impaired or 100% is not you mentioned methadone I assume some oxygen would be the same if you detect that people who are being provided with those drugs by the state of Vermont shouldn't be driving and again it's one of these things that those drugs are also abused should I mean they're obviously being prescribed that drug by a physician should they be driving and it's no different from somebody that's prescribed prescription painkiller because you are given a prescription or maintenance treatment for a mental health disorder does not give you the right to drive impaired many of these drugs come with warnings that you shouldn't be operating motor vehicles or heavy equipment while taking them because they have that ability I had a procedure in the hospital and the doctor said I had it at 8am the doctor said you're not driving till after 2pm that would be the same absolutely yes just having a prescription does not give you a right to drive impaired just I don't quite understand how we define which drugs are impairing drugs is that a standard somehow because I think that I mean I don't know there are tons of if you take Nyquil it says don't drive is that an impairing drug could be absolutely so how do we define these impairing drugs that are going to show up in the test is that a question for you or for it could be for both so I think and I'm not going to speak on behalf of the manufacturers but I think what they did is they took a caveat of what do people see most predominantly when they look at drug impaired driving and they included that in the scope because it's going to cover majority of people who are abusing things that are on the roadways so the definition kind of comes from the manufacture of they they've defined the kind of world yes they've defined looking at what goes on in the roadways has to make it the most marketable and usable for agencies that are going to use it as far as from a clinical or a toxicological standpoint impairment for me for a drug is anything that's going to impair my ability to operate a motor vehicle so it's basically going to be anything that will impair my brain or my cognitive functions to such an extent that I don't have the facilities in place to drive straight down the highway and be aware of everything that I need to do including the props that you put in your eyes when you pulled it for your eye test so that's a different way the doctor also said I shouldn't make any decisions in 24 hours that was probably wise probably was I noticed a member of the senate making decisions one day with the same procedure within 6 hours you might have you might have taken his advice in more cases than just about a day that person should have taken the time to do it I made the sentence with influence no I had it done on a Monday and I brought it back we can't even count on his testimony to answer the questions because he was not reliable because he was under the influence of whatever the medicine was there are times when maybe you should I'm sorry to say your own observations of what you did and didn't do during that period are sketchy I was merely pointing out that a member of the senate made a decision and money shouldn't have been Joe hasn't hired me as an assistant yet but the first thing we were doing was saying that you have absolutely no ability to say conclusively what you didn't do that day it isn't it isn't we're not taking your testimony seriously I actually I had actually went to a forum with the commissioner of public safety that night but I didn't make any decision could you handle yourself very well as far as you could tell back to the witness are there any other questions I can speak about the DNA so there's two components here so we've talked about the roadside test so for that I think people are familiar with how PBT works so there's a breath tube that gets attached to the instrument and the person blows into it and that's thrown out afterwards similar for the roadside preliminary drug screen so there's something that's going to be placed in the person's mouth and it's going to allow a collection of oral fluids or saliva and that gets popped into a cartridge and then inserted into the device for testing and again that's disposable so none of that is retained and as far as the evidentiary test if oral fluid is allowable right now the laboratory receives three vials of blood for an evidentiary blood test for drugs or for some alcohol cases for oral fluids it's going to be similar if the person is given a evidentiary oral fluid test they will have a device that's placed in their mouth which is essentially a pad which will absorb saliva into it and then it gets placed into a tube and then that's going to get sent to the forensic laboratory when we receive it we don't willy-nilly kind of decide what we're going to test for what we're not going to test for it's very distinct and discreet as far as what the type of evidence is that comes in and how we're going to process it throughout the laboratory the way we process toxicology samples is a completely different wing and personnel in the laboratory than the arm of the folks who do DNA analysis these samples are also going to be if this goes forward subject to rules that are set in place as the commissioner talked about earlier which one of those rules that we have currently for alcohol cases is the security and essentially fate of the testing matrices that come in so you wouldn't actually get the device that was used to swap roadside? the roadside absolutely not so that's disposable it's getting thrown out or the individual it could be returned to the individual I suppose yeah if they want it so are we anticipating that the evidentiary test will be obtained back to the barracks or that also on the roadside? so that's a procedural question which I think is yet to be determined I think the thing that makes the most sense at this point is to parallel it to the DUI alcohol cases so it would be done at the barracks just because you have to go through the implied consent part of it so I mean it all could be done roadside which there's no reason why it can't be but that's yet to be determined but it's got to be that close implied consent okay so those samples if we mirror what we do for alcohol those samples are eligible for disposal or destruction after a certain number of days we give a window to allow the opportunity for the operator to come back and say they want independent testing so we give them a window of it's 45 days in statute we actually hold it for 90 days to allow them that opportunity so I imagine it would be the same for oral fluid testing so we would keep it for a certain number of days which are outlined in the rule and then they're going to be discarded and incinerated at that point so so is that also the case if there was an accident or wouldn't you keep it? so we don't always know the circumstances of the cases that come in so we don't know if it's a simple DUI case or if it was a DUI fatality we don't often know so we rely on communications with either the investigating officer or the state's attorney to say you know this is a DUI fatality can we please hold the sample for extended period time and we will make notes of that in our system and hold it for longer but the actual the manufacturer of the evidentiary collector for the oral fluids the stability on that it's only guaranteed for I think 30 days so it's not like these things are good forever did I hear correctly the commissioner that we had a pilot project on this at some point with that device that used saliva so back in 2015 the state police did a pilot program looking at two different roadside oral fluid devices we had a small cadre of samples just because it was a completely voluntary process and the operators were asked at the end the complete end of processing whether or not they would like to submit a sample so we only ended up with I think less than 10 post arrest samples so then we changed tax and we went to the rapid intervention program as part of the Chinden County program and so those people that were coming in for urine collection is to see if they were following the program were asked if they also wanted to give an oral fluid sample so we did it that way and after our data was collected and we sent it to Barry Logan who is an expert in the field out of NMS laboratories he compiled all the data because he's also run a number of larger pilot studies throughout the country and looked at our data to see what the results looked like and they were very positive yes so this would be a way to is this cheaper than the urine test that people do that are in a treatment program that's supposed to use drugs right so the cost of the so you have to look at the cost of the roadside testing and then there's the cost of the evidentiary testing so the roadside testing we don't have a parallel for it right now so that's a completely new cost that we would have to implement somehow we believe there are federal monies available to get that program up and started but that's a completely new facet as far as the evidentiary test goes it's comparable or slightly cheaper than doing the blood draws we do right now we would have to pay for the collector devices but the offset of that is then you don't have hospital fees because right now we're paying for anywhere from 50 to a couple hundred dollars each time someone goes to the emergency room to have blood drawn that's another question thank you thank you anybody who connects no I'm done that's all for we have from the department we've got a number of troopers here I think you've covered unless you want to hear from them I mean it's an intimidation they're just here to intimidate you can I take one brief luxury with our previous witness one of the last times you were here were talking about the backlog of tests DNA tests any general observation about whether we've made great strides since then absolutely so we did like a hardcore press after we came in here because I kind of left with my tail between my legs not because we'd necessarily done anything wrong but I felt horrible coming in here and telling you that we had a backlog of 3,000 samples so over the course of about 8 months we've eliminated that backlog and right now our backlog is essentially what's come in the previous month so it's good to hear thank you for the good news wait a sec where's the bad news we're waiting for it thank you pepper your schedule is next so we brought in our traffic resource safety prosecutor to answer any questions about how this might be used in the prosecution okay then after the break and what else we get to we don't get to today we'll get to you after the okay so I'm the traffic safety resource prosecutor for the state heather brochew heather heather yes for the record you need to the state absolutely so from a standpoint from a prosecutor I was a prosecutor in St. Albans Franklin County for about two years prosecuting about 90% of my cases were the traffic related crimes from a DOI one up to the DOI fatalities and the DOI drug case has obviously fallen there as well the oral fluid testing as I see is another and it's kind of I know the commission already hit on this it's another tool in the toolbox to investigate these cases as a prosecutor I would never file a case with just a positive test for drugs because I wouldn't ethically be able to file that case and I wouldn't do that I would need to have some observations of impairment to go along with that this is sort of confirming what the officer has seen usually there'd be an officer and a drug recognition expert or an officer loose as the a right training that can make these observations where it stops it can start has a stop for something that is failure to have a turn signal and in talking to the operator they see an addition of impairment ask them to exit the vehicle through the field sobriety see additional addition of impairment right now how it stands they would ask for the preliminary breath test here with the oral fluid they could ask for an oral fluid test which would show presumptive positive at that stage four could show presumptive positive at that stage four drugs in the system and then they could proceed from there to have a DRE and take it further and after having DRE evaluation can ask for the evidentiary test which by its name suggest what it is sure because I've seen video camp you know what do you recall from the officer's body camera or the officer's car camera seems to me to be the most effective tool in determining whether somebody I mean a watching tiger horse for example on the video or watching a former state official go through the sobriety test you know I don't know how many good but he could say well no I wasn't impaired and so it would seem like as a prosecutor that might be the most important tool and I'm not sure what maybe you could help me understand why you need this additional tool that doesn't tell me whether the person is impaired so I do believe isn't that kind of inflammatory while there was marijuana in the system therefore no I disagree I will agree with yes that seeing the physical signs of impairment if we do have the cruiser camera body camera it's most times we do now the only yes I do think that's a big piece of evidence and that's why I said with the test alone I would never go even file it however I will tell you that in prosecuting cases where I have no test and I also have no refusal for various reasons I've gone to a jury because I do have these signs of impairment I have had jurors call me and say they want that number they want something to confirm something that's in their system so that's where it puts it all together but it doesn't tell me that the problem is if somebody is that let's say 1.6 which is the number that they add in the heading somebody says that you know they're gone they're definitely going to be impaired they're definitely impaired but if somebody has that point whatever in marijuana there's no evidence that's an impaired level that's where I'm struggling I understand why we would want this information why you as a prosecutor other than inflaming a jury and I would never want to inflame a jury but it would show it's an impairing substance and then I put it all together like I do any case the puzzle I have the DRE say I see impairment here's what I'm seeing and oh by the way we've confirmed that that substance is in their system we don't have a per se level like Dr. Conti spoke to I also just going off tangent a little bit you asked about the O2 if someone was O2 there are cases where if someone's O2 and I have signs of impairment then that's a case you can file everyone is going to be different I've had cases the lowest I've had is an O4 but we had signs of impairment and I've gotten a conviction that an O4 for under the influence because they were under the influence and for everyone it's different I can tell you for myself I'm going to be under O8 before I'm impaired everyone has different marijuana or heroin or different drugs it's going to affect people differently and that's why we have the signs and then we're putting it all together we're giving them the full picture I understand that but if you're before a jury yes and you're allowed to say that this person tested on one of these oral fluid tests at some level of marijuana in your system for getting heroin and other perials isn't that something that you're using against that person yes without a basis to know if that contributed to the impairment not we'd have the basis because we'd have the observations you don't know that the cause of their impairment was the marijuana you know that they were impaired and that would be for the jury to come back because what we have to show is that they're impaired by a drug the DRE will call a class of drugs and we will give them that evidence to say here is the evidence we have to show they're impaired by this drug the jury can come back and certainly say no also for an under the influence case if I have a test if I take it to the jury so it isn't under the influence not above 0.08 and they have a 1-6 in their system or they have or my test shows X that piece of evidence alone the jury insurance will say is not enough to convict that I have to have more than that test which is what would be here there'd be an instruction saying the test alone is not enough to convict would be my understanding well I'm just curious so what we're doing is providing them the full picture somewhere too if they had nothing in their system I am concerned that it is used as additional evidence because the mere fact that it's there does not necessarily contribute to the impairment so how can it be used as additional evidence of impairment if we have no understanding of how that contributed to the impairment I don't know about heroin or cocaine or anything about how it stays in the system I do know that marijuana stays in the system for 30 days so if on day 28 it shows that there was marijuana in the system and you use that as evidence it has nothing to do with impairment but it's being used as additional evidence of impairment under that drug so I don't get the connection here of how it's used as additional evidence if there's no evidence to show that it was contributed to the impairment that's my for one there's a difference what I think you're talking about for the 30 days would be an inactive metabolite meaning that there's no psychoactive and the lab test shows that it breaks it down and says it's inactive so at that stage it would not be an active metabolite and that's not something that would it shows up as inactive right it shows it does but that's not something that a case would be filed on if it's inactive it wouldn't go to a jury because it's not causing impairment it's an inactive it doesn't have that impairment abilities it's a breakdown and it shows every drug has that breakdown metabolite it's an active and inactive but a prosecutor could still bring that evidence in and show that it was there inactive I don't see where that would ever happen because the point is that it's inactive and it says right on it and it explains it's inactive so I don't see how that's beneficial to a prosecutor to bring in I don't see how a prosecutor would bring it if they understood which the ones who are prosecuting these cases understand plus we also talked to the experts the doctor a good question I was just wondering about what you envision as the the suspect going through the DRE as well as the saliva evidentiary test the second one that happens do you think most people will now be going through all of that both methods calling in the DRE as well as doing the saliva? I think the DRE is critical you have to have it's not just having that we have this oral fluid testing and we Jettison everything else yes and I think they're a critical part to putting the full picture together I mean that is from the state's point of view you know putting on all the evidence having all the evidence we always just have to disclose everything but as far as putting it to the jury it's the full picture and the DRE gives us that link between just hey here's we found drugs in the system and even active drugs but we need something to link that and to give the full picture and that would be the DRE or another expert that can say here's what we saw this is impairment these drugs cause you know what we're seeing the poor coordination the so with regard to if they decide to do the second evidentiary test at the scene why wouldn't they just move to that one anyway in other words you get some tests on the first one and you say oh there's probably something else here I'll move to the second one is the second one actually a better test or is it just that that will be a I mean you describe two different tests one with like a flat cotton versus the other one I don't know what the other one has so roadside there'd be the preliminary similar to like the preliminary breath test so my understanding of the evidentiary is and it's more of Dr. Conte's wills but it is more sophisticated would be my understanding I think it might so I'll leave it at that so I would be able to call a lawyer before that test right now our statute is such that before you so at the statutory not a constitutional right but that's statutory because not every state has that our state has that by statute you do the second one make a decision about an evidentiary test that you are provided that right to counsel I want to make sure that we get after the break to the new court Chief of Police I want to make sure we hear from the Fred North American product managers and I want to make sure we hear from Brad Meyerson anybody else I missed so I want to make sure I get any other questions Heather thank you for coming in thank you why don't we take a 20 minute break to be back here in 10 minutes Fred Meyerson Brad it's Dick Sears good morning Dick good morning and members of the Senate and a number of other witnesses and interested folks in the room as well as it's actually being filmed on Orca media and that's a local TV cable TV group so while you're not being filmed the phone is so let's show you're aware of that we do have a copy of your testimony and I know that you were a member of a DUI drug offensive enforcement challenges reported Act 158 in 2016 so you're very familiar with the proposal to do saliva testing that passed the House of Representatives and would love to hear your comments on why it's a good idea, a bad idea, or whatever else thank you first of all how much time do I want to lie because I want to make sure that I know I'm sure you won't but hopefully 20 minutes, 25 that's fine thank you first to reintroduce myself to members of the committee I have been practicing in the area of DUI defense and DUI drug defense for 35 years part of my practice I've also been doing a number of trainings that was recently in January for DUI drug defense and I first want to talk about actually the preamble section one legislative intent drug recognition experts I can tell you that while the the DRE and it's not drug recognition expert it's drug recognition evaluation while it's been deemed admissible under the Vermont rules of evidence my experience has been in virtually all the cases I've defended that even though experienced drug recognition evaluators before the 11 step evaluation protocol with the 12 step being the request for the evidence shared request I find that it's basically confirmation bias an expert under the law is somebody who by training and experience is qualified to render an opinion in a particular manner taking into account the facts at hand commonly accepted methodologies and protocols for arriving at a particular opinion and setting aside any personal bias or favoritism in order to render an impartial opinion and I will make no apologies by telling the committee that that is simply not the case in the DRA cases I have defended what happens is there is an automatic presumption starting from the initial contact between the road officer and the person who is stopped if they smell bit of water then there is a presumption that the person is under the influence and any any factors such as the person having a cold or cold or cold that explains or that they might be nervous which would explain try and out both starting from the roadside the roadside processing up through when the person unfortunately is taken to the station and they have to go through the DOE protocol any facts that do not support an opinion of impairment ignored or minimized during the course of the evaluation. And I see this time and time again in comparing the DRE reports, written reports provided by the officer, in comparing those with what I see on the video. And I just think that there is a built-in presumption of authority that legislators give the DRE program and officers who administer it. And setting aside the good intentions of the officers who administer the program, I think that that presumption of reliability or validity is simply not warranted. Having said that, and I've been sure that it's heard me say this before in regard to driving under the influence of awful legislation. I think that the Section 1 legislative intent portion is just... I don't think it needs to be embodied in the law. It needs to be used as a statement of public policy, but that is it. Now, turning to the proposed amendments to the statute, I will say as a general proposition, as a lawyer and as a citizen concerned with privacy and civil liberties, I am very, very worried about the push to legitimize saliva testing. I just... I can't emphasize enough there is a huge difference between the breath and blood alcohol testing program and the drug testing program as it relates to saliva. Saliva is closer, I believe, on a constitutional and an evidentiary basis than breath. And my concerns start with the proposed amendment, Section 11, the preliminary screening portion. In many DUI cases, I find that it is often the case that the officer simply at the end, whether it's at the end of the roadside testing or at the very beginning, that perhaps Senator Benning could confirm this, that the officer simply sticks the preliminary breath testing device up to the person as well. Not telling the person they don't have to do it. Some officers do. If the person has the courage enough to say, I don't, you know, do I have to do this, which a lot of folks don't. Officers will say, no, you don't have to, but oftentimes people simply assume because the officer is asking them to do it, that they have to do it. They don't know that they have the right to refuse. Now, in a driving under the influence of alcohol case, the refusal to provide a preliminary breath test can be admitted into evidence, although, of course, under Section 1203 of Title 23, the preliminary breath test result itself should not be admitted into evidence. Yet, I see in, particularly in civil suspension cases brought under Section 1205 of Title 23, that the preliminary breath test results are routinely admitted into evidence unless there is a good objection by the defense lawyer. And I think that the preliminary breath test, the use of preliminary breath test, has been extended far beyond what the legislature wanted in placing those limitations in Section 1203 sub F. And I say this because I am very concerned that the way Section 11, the proposed amendment of Section 11, sub Section 11 of Section 12,000, it's pretty similar to what the legislature has said concerning the use of roadside breath test results. Yet, even though Section 11 says the results of the preliminary screening, so about the introduction of evidence of the permit in court proceeding, it's going to come in prosecutors, in my experience, unfortunately, we'll try to get in the results of the preliminary breath test, even at trial, so that we have to file motions in lemonade in order to keep them out. And I just, in statute, it talks about, I believe, that the evidence to provide a preliminary breath test for the preliminary saliva test wouldn't be deemed a refusal. And as I'm sure you've heard from other opponents in the statute, a person for which many reasons will not or may not be able to provide a preliminary sample of that, excuse me, of saliva. You're going to deem that a refusal. People are nervous around police. And when they're nervous, they don't try that. It's just a common physiologic response. Is that involuntary action of the body going to be deemed a refusal? Again, it emphasizes the difference between saliva and breath. Saliva is much closer to blood, I think, from a privacy and an evidentiary standpoint. And it should be treated as such. Looking at the evidence here. You may want to, what I think you were just referring to is, on page four, three, saliva test. If the law enforcement officer has reasonable grounds to believe that the person is under the influence of the drug, other than alcohol, or under divine influence, the person is deemed to have given consent to take the evidentiary sample of saliva. Right. Well, I can talk now about, I think, constitutional concerns. That's a lie to test it, which... Senator Nica has a question about that. Just to go back to the fact that someone might not have enough saliva. So at the top of page eight, the failure of a person to provide an adequate breath or saliva sample constitutes a refusal. Right. Are you able to successfully argue that someone didn't have enough breath? I think somebody that has COPD and can't blow enough. Have you had any of those cases? Absolutely. You know, persons may not be able to give... Some may not be able to give an adequate breath sample for a number of reasons. They might have a mouth injury. They can't provide an adequate... You know, they can't fasten their lips to the breathing tube. They may have emphysema or other problems. Have you had any success arguing that? Yes, I have. Again, it's on the judge-by-judge basis. Some judges look at these issues differently than others. Right. I think that with saliva, again, being so different for breath, most folks, even the people who've done nothing other than have a license played out, they can stop by the police officer. They see the blue lights. They're going to get nervous. And when people are nervous, they cannot provide an adequate... You know, they're going to try out. It's not going to be either refusal. The law of refusal, as Senator Benning goes, is that there has to be some kind of voluntary action. You know, it's not enough for the person to say, I'll provide a breath sample and then they'll break or it takes some kind of action that's inconsistent with that intent. The body's production of saliva isn't in voluntary response. And my fear is that we're going to see a lot of refusals being litigated because the person may simply be unable to provide an adequate sample of saliva. Does that is your question? Yes. Thank you. Looking... I will say my remarks regarding the constitutionality for the end. I'm very troubled that Section 1202, 7, 3... Let me go to that here. On page 4. On page 4 of our bill. Okay. Yeah, because I printed the statute here. That's a saliva test? Yeah. I apologize. I just snuck up my page. It's not over. Here we go. Since 1203, 7, 3... The applied consent for an evidentiary sample of saliva. The United States Supreme Court of Westfield v. North Dakota, which has been applied in Vermont through the Vermont trial courts, when you're saying there's a decision pending before the... a case pending before the Vermont Supreme Court on this issue, has said that at least we prevent a blood, when you have an invasion of the human body, using blood in a driving of the influence case, and the court didn't distinguish between driving of the influence of drugs and driving of the influence of alcohol, although the bloodshed case dealt with driving of the influence of alcohol. There are constitutional protections that must be followed because there is an invasion of the body. Therefore, a warrant must be obtained according to the bloodshed case before a blood sample can be extracted for evidentiary use in the driving of the influence of alcohol case. I'm concerned, unless I misread it at page 4, section 3, that the insertion of this section is in any way around the constitutional protections of a warrant that the Bushfield v. North Dakota trial courts in Vermont require before you can use a blood test in a driving of the influence case. And I just... I find it very, very frustrating with all due respect to the committee that we continue to arrive at the constitutional protections, limited as they are for persons accused of driving of the influence. Just to be clear, the House of Representatives passed this... Senate. The Senate is considering it, but hasn't voted. So I would save the... We are representatives, I believe they voted for it. Unfortunately, I'm trying to lobby them otherwise. Senators, the fact that the House passed this bill should not be in any way governed your consideration of it in regard to the protections afforded to persons who are in charge with driving under the influence of marijuana or other drugs in Vermont. We will challenge the... If this bill passes, I know that Defender General and the Vermont Suburban Union have said that they will challenge the constitutionality of the bill. And I would like to join in that effort. I just think it's an end run in various ways around the Vermont Constitution. In my remarks, I spent some time talking about state versus stadium. Excuse me, state versus Medina, where the Vermont Supreme Court considered whether a warrantless, specialist DNA collection by the Bukals wanted from the lighting of the mouth a person's rate of felony under determination, probable cause, was an unconstitutional search and seizure under the Fourth Amendment, Chapter 1, verse 11. In the case of a person who has been suspected of driving under the influence of marijuana or some other substance, first the request for a saliva sample or it was a seizure under the Vermont law. A request to provide a preliminary breath test has also been deemed a search. And the Vermont Supreme Court has said that a breath test and then highlighting the difference for mind purposes here between breath and saliva. A breath type breath test is a minimal intrusion so far as a pertinent law search in place, specific articulable facts indicating that the person has been driving under the influence of alcohol. It ain't that easy when we're talking about driving under the influence of marijuana or some other drugs. Despite that, as 1981, in state versus Whitken, the court said, you know, because of the constellation of or a range of symptoms that a person who is suspected of driving under the influence of marijuana or a controlled substance might show, officers have to have particular expertise in determining whether someone's under the influence of that drug and therefore an expert testimony is required. Now, I'm not saying that an officer has to be an expert to at least determine preliminary on the side of the road whether a person is under the influence of marijuana or ambient or something else. The point is that a road officer will invariably, in my experience, jump to the conclusion that the person is under the influence of the substance. If a person is under the influence of marijuana, if one is just smoking a water, the person may have dried out. There is a world of difference between ingestion and consumption. And I'm assuming that you have heard from other witnesses who have talked about that, about how marijuana can remain in the body more than 30 days or longer. Not yet, but Senator White has brought that up. Okay, and in the context of the saliva testing bill, that's extremely important. Let me just science that a little bit. When we're testing for saliva, we don't know because the effects of marijuana are fairly close in time to when it's first ingested. It can also remain in the body for an extended period of time. So a person, for example, who ingests medical marijuana or who may have smoked it a couple of days ago, could have stopped. And maybe the officer smokes marijuana in the car or something. It's all over. That's, you know, unfortunately, I've seen that, and my colleagues know of it, that paged away for an arrest of probable cause of driving other people to marijuana. You get a blood sample if the person consents to a search. And only in one case have I seen somebody actually, the officer actually got a warrant. But the person, we have a real danger here with people being prosecuted. If saliva testing is allowed in this state, people being prosecuted for driving other people to marijuana are being punished for ingesting and not necessarily for treatment. Brad, can you go back to one of your initial comments, and I'd like to understand it better, regarding the automatic presumption that any sign of marijuana is under the, that the person is under the influence. And I think you were talking about somebody being a driver who's caught with some marijuana in the vehicle. And have you had cases like that? Well, I think this falls over the head in the confirmation bias. My experience is that in marijuana cases, and actually I've not yet defended an ambient case or some other substance, they've often driven into the influence of marijuana cases. But my experience is that when an officer smells marijuana, and there is an admission of consumption, that everything that happens from that point forward is to support the assumption that the person is under the influence versus simply having ingested marijuana at an earlier point in time. And fortunately, in the DOA protocols that I've seen executed by experienced officers, we think there's a lack of impairment, such as eyes, pulse, things of that nature are barely excluded or minimized. I don't think that there is an even-haven administration of the DOA protocol in cases that I've seen, and that is because of the presumption of impairment. And that, to me, is pure confirmation bias. If you're going to call yourself an expert, then you have to be impartial. And I'm starting with the DREs that I've seen administrating the protocols. You can't call yourself an expert if you are arriving at an opinion based upon what, you know, excluding facts that might not support your opinion or hypothesis. There's somebody, there's no sign of marijuana, but they do a breathalyzer and they come out at 0.04. Do any of those get charged in your experience? Now, it's not even going to be important. Do they have marijuana cases? No. No sign of marijuana. A minimum amount of alcohol? Yes. Below 0.08? Yes. I think I have one now. Senator White may know this from discussing with folks in the rather rural criminal defense part of it. It's currently known that Wyndham County will prosecute to trial cases where people are below 0.08 as well as 0.04, 0.06. We're hard on crime down there. Senator White was commenting that they're hard on crime or that it's a full employment effort for the defense department. Well, there's no classes and I know that it doesn't. But if it passes, it's going to be full employment for people like myself. Because we're going to be litigating these cases quite aggressively. And I think, you know, looking at the law of unintended consequences, you know, whenever the legislature passes a criminal justice bill, I hope that there's been a full understanding. I mean, no second members of the committee and Senator Sears will have the greatest respect. But, you know, you pass a lot of testing. You're going to have an explosion of litigation. And we've got to have more judges prepare to handle these types of cases. Brad, one point that the commissioner of public safety made and Senator White and I heard it from the House members that the reason that they voted for this was to get the tax and regulate of marijuana. And commissioner of public safety basically said without a saliva testing, the governor wouldn't support a tax and regulate system and you and I have talked about marijuana and I know your views in terms of tax and regulate and you know that we support that as well. How do you feel about that? To be honest with you, even though I'm thrilled that we finally have legalization in this state, I would not sacrifice... I don't think that anything is wanted to sacrifice for saliva testing. I really don't and I'm going against my own self-interest in saying that but it's not worth it. The thought of driving into Vermont from Massachusetts and seeing people standing by the side of the road in front of a police car sitting into a dish that horrifies me. And that's a scene that's going to be repeated over and over again if we pass saliva testing. You know, we don't need saliva testing. Period. There's not a compelling need and certainly it should not be a quintro quo for a tax and regulate system. But you may hear that somehow. Well I just... On why they voted for the bill. Right. Well that's the wrong reason. That's the wrong reason. On that particular... Are there other questions that I could address? I want to emphasize... Senator Benning had one question on that. Yes, sir. Fred, the employment consent form that gives the officer something to read from an advised potential offender that they are about to be asked to take a breath test and if they refuse what the consequences are. Have you ever seen that actually done at roadside? No. Never. Because it's been... No. So in your experience, have you ever seen a situation where an individual at roadside was actually given advice by the officer that the person had the right to refuse? Sometimes. Okay. Less frequently than not. Some officers will tell the person, you don't have to do this. But more often than not, the officer will just stick at the person's face and say, well, we'll use language such as what I'd like you to do next is to provide a sample of your breath and then we'll see where we go from here. For instance, I'm beside the road very rarely have the word with all to say, you know, well, do I have to do this or to do anything? Probably to go along with what the officer wants because that is the nature of the situation. They've done the roadside exercises and they're scared and they will go along with anything that the officer wants them to do. Does that answer your question? Yes, sir. Thanks. Let me conclude with the questions with the problem of driving under the influence of the water or drug driving in remote generally has not risen, fortunately, to the level that would justify a special needs exception of Chapter 1, Article 11 of the Ramon Constitution which would justify saliva testing. Did I talk about this? This would be pages 16 through 19 of my written remarks. In other words, we are weighing the privacy interests inherent in bodily fluids such as saliva which is the social need and that is to combat drug to driving. The problem of drug to driving in remote simply has not risen to the point where there would be a special needs exception under Article 11 as discussed in the Medina case that would justify the use of saliva testing in prosecution of driving under the influence of drug cases. I hope that the committee will take the protection of the concerns of Article 11 as I've raised and as I know others have raised very, very seriously because once we go down that road we're not going to be able to come back and I fear for us, I fear for visitors if saliva testing were to become one of the states that the House passed this bill by such a large margin there is no way, I believe, influence your decision whether this bill should be a committee that should. Appreciate that and your thorough analysis on the DUI drug attention enforcement challenge before. Can I make it on you? So just so that you know whatever the House does very rarely influences us we try to look at the issue anew and make our own decisions. I appreciate that and there are other things that I wanted to say about that but I want to be malicious so I won't but I have great faith in this committee several members I know and you know, I just I don't want to give you a push I hope you do the right thing but I think this is a terrible, terrible bill that should not go any further than this. Appreciate that. Thank you. Brad, thanks for getting the time out of your busy schedule to chat with us. Thank you. See you back home. Okay, bye-bye. Bye now. Next. Is he from Manchester? Manchester. But he represents South of the line. The next witness might have on the list and I'm going to skip through the Newport police chief and then have Fred last. So that he can go home. I realize that Newport is not as far as going to go. It is a waste of money. So we did just before the mid-chief starts we had our tour of, you know, our law enforcement tour and the chief joined us at our hearing in Newport. He did indeed. He did indeed. And I've just had a very enlightening conversation about the licensing and I'll share if you were done. Great. Thank you. Morning sir. My name is Satta Sano. I'm the chief of the Newport Police Department representing the Vermont Associations of Chiefs of Police. Next. I'm Alex and I grew a little bit. Thank you. Thank you. The Vermont Associations of Chiefs of Police I don't want to take a lot of your time to reiterate a lot of what the Commissioner said, the Association the 55 chiefs in the State of Vermont Department of Public Safety and Lockstep on this bill for all of the reasons that Commissioner Anderson's already testified to, so I don't see the need to repeat the same thing over and over again. A couple of things that I didn't wanna clarify in reference to some of the testimony that we've heard between the commissioner and now. In terms of the collection of evidentiary saliva tests or oral fluid testing and blood testing is no different than what we're already doing. It's just that we're not going to be sticking a needle in someone's arm to get the evidentiary portion of it, which is much less intrusive, as the commissioner said. So I wanted to clarify the conception that this is gonna change the process instrumentally. It's not, we already have the process, just a way of doing it less intrusively. In terms of the roadside testing, that is non-evidentiary testing just as the PBT would be. So whether or not it comes back on roadside as positive or negative, you have to have those pre-cues to even get you to that point. So for example, in my career, not once have I ever pulled someone over and jumped right to, hey, blow into this to see if you're intoxicated. I would have to have multiple factors leading up to that point before I would even consider the idea or option of that tool in my toolbox for investigating. And then lastly, I heard what the gentleman on the phone stated and I just, I wanna put you in the shoes of a law enforcement officer for just a few minutes and imagine what it's like. To go to someone's house and tell them that a loved one has passed away as a result of a DOI or vehicular crash. I mean, that's really the essence of what law enforcement's trying to do here. We want to make our highways safer. That's the idea. The idea is not to be able to have more statistics or to make more arrests or do anything like that. We've gone down the road of legalization. Okay, we're there. We now need to put processes in place that are gonna allow us to protect your constituents and the public that we're charged in protecting. That's really what this bill is about, from the Bay Cops perspective, is trying to keep people on the roadways safer. I don't know if you have any additional questions that you'd like to ask me. Senator Bennett. Yes, sir. Chief, I don't think we've ever met before. No, sir. I practiced often up in Romance County. First question I have, and I do have a couple. You go to the Vermont Police Academy. Yes, sir. Inflate consent form, would you agree with me? That's the document that you read to tell somebody that you're processing that they have a right to refuse to take the next test. Yes, sir. Have you ever administered that test, that inflate consent form? Yes, sir. How many times did you say you've done it? Over 100. Any of those times have you ever done that at roadside? No, sir. So every time that you've ever asked somebody to take a breath test and read the consent form, it had to do with the evidentiary test, not the roadside test. Yes, sir. So how would somebody at roadside know that they have a right to refuse to take that test? In 100% of the DUI cases, I have always told the person the next step is optional. Is that the way you were trained at the academy? I believe so. I don't know why I would offer up that information if I hadn't been instructed to do so, but I feel it's my duty to explain to someone that I'm not twisting your arm to do anything. There'll be no penalty if you don't. Do you give that instruction to the officers under your watch? Absolutely. In your experience, what's more effective, the roadside test or the video from either your body cam or from the cruiser, if you have that new point of the person trying to go through the sobriety check? Yeah, so in Newport, we have both the dash cam and the body cam for all officers. The preliminary roadside breath test to me means nothing when I'm processing a DUI, unless I have to have built something to get to that point. And so I want the committee to understand that law enforcement officers do not go out and make a roadside traffic stop and say, well, this car was coming from the area where a bar was, so I'll give him a PBT. You've got to have something to get you there. My question is that the videos that I've seen of a former state elected official going through the roadside test, the video I saw of Tiger Woods going through the roadside test, those things are a conclusion to me that the person was impaired. And see, I would disagree with that completely. And you disagree with that? Yes, sir, because there are plenty of times where I've stopped a motor vehicle and said, this guy's hammered. And come to find out, he's had absolutely nothing to drink in their estimation, no illicit drugs to consume, but they're having a diabetic emergency. That happens routinely, and I don't know why it happens routinely in Orleans County, but it seems to happen routinely. That's a perfect example of someone that I would not allow to continue to drive. It's about safety. It's not about an arrest. It's not about a stat. It's about making sure that everybody else that's on the road, including that one driver, is safe to drive. And that's why I feel like this, that's why the Vermont Associations of Chiefs of Police feel like this is just one more tool to put in the toolbox. It's not the end-all, be-all. Not necessarily going to get us to where we need to go. Another question for Chief? Chief, thanks so much for making the trip. Absolutely, thanks for having me. I appreciate it. Thanks. Fred, the North American product. No, I'll say it. North American products, hopefully. I'm going to show you. Uh-oh. Fred Delfino from North American Products Manager, Abbott. Abbott? Yes, I am with Abbott. My name is Fred Delfino. I am the North American product manager for the O'Lear DDS-2, which is one of several products that are used around the country in roadside testing with oral fluid. You call it oral fluid? Yes. I met Fred about two weeks ago, so he would use the oral fluid for me. And Fred would probably just tell the idea or split it into a can. Or a dish. Or a dish. Or a dish. So much like the Chief had said, devices that test oral fluid by the roadside are designed to save lives. I mean, that's really what you hear to talk about. It's not about who's doing drugs and who's not doing drugs. It's about saving lives and making the roadway safer. Oral fluid, in general, has been accepted and validated throughout the scientific community for several years. It's most of your major laboratories are doing oral fluid testing, whether it be on hospital patients, clinical patients, corrections. Even in workplace testing, it's taken a very predominant step forward. And we spoke earlier, Senator. You spoke about truck drivers. So it's moving into that arena, too. And there's several reasons for it, because the value that oral fluids brings into this setting is the ability to identify the drug use or recent drug use with the findings of the DRE or the officer. So you're getting that information closest to the traffic stop. So there's a lot of talk about how long it'll stay in the system. One of the most valuable parts of oral fluid testing is getting it immediately. The drop-off rate, and we always talk about marijuana, drops off within two hours. Those levels start just plummeting down. So when we're collecting blood, in a lot of cases, we're not doing our self-justice, because those samples may be collected two hours or so after we have the traffic stop. So looking for parent drug, Delta 9, is what we're looking for in oral fluid. We're not looking for the metabolites of marijuana. We are looking for the parent drug. And that's what we're identifying. We're not identifying a CBD. We're not going to be testing positive for CDBs as well. So the true value is the timely collection, getting that information of the recent drug use most immediate to the traffic stop. I think we've seen and heard about invasiveness. It's minimally invasive. And when you compare it to blood, you compare it to a hair tester, you compare it to a urine screen, it's the least out of the four matrices, it's the least invasive sample that you could collect. Recently, we've seen the state of Oklahoma, their Board of Testing, which handles all of their alcohol testing, has recently approved oral fluid testing for roadside. They've approved several devices that they've listed in the state through the Attorney General's office to be used for roadside screening. We're seeing the same thing being conducted at this point in Alabama. They've recently, they've conducted several studies in Alabama with several devices with oral fluid compared to blood. And they've seen greater than 95% accuracy as well compared to blood. So there's no drop off. If anything, you're gaining the ability to detect the drug before it's moved out of the system a lot sooner than you would with blood. So instruments like the DDS2, like the Drager, who was a competitor product, some of the value in running tests this way is they're providing you with an objective result, okay? It's not subjective to an officer to make an interpretation on the test result. The instrument is actually performing the test under the correct conditions and then interpreting the test results, printing them out and saving, archiving them into the system as well. So there is no officer, Jones said he was positive. It's the instrument that's putting that test result out. There's no interpretation whatsoever. And I feel that that's a very valuable part when you're looking at the rights of individuals and making interpretations. Again, this is your screening tool. This is what they spoke to earlier about confirmation testing at the laboratory, okay? So this is the evidential collection system is all it is. In systems like the roadside DDS2 and the Drager products you're gonna find, we're testing for six drugs. We don't see the issue being strictly marijuana. In fact, I think in some of the pilots you've seen around the country, you might see it in some of your data from your laboratory here with some of the roadside cases. We're finding fairly equal distribution and positivity rates among opiates, methamphetamines, cocaine, and other drugs. So it's not just focused on marijuana. That's what brings us to the table today, but you'll see in other studies. For instance, Senator White, you asked a question earlier about what determines the drugs we test for. Well, NITS has done roadside surveys every four or five years and based on that data, 90% of the positive they've seen have been the drugs that are on this type of menu. So that's kind of what drives us when we're making a product to fit into a marketplace, we're looking at the data that's been established on the roadside and those surveys were done in California and all throughout the country. I just want to be clear, this gun holding is the actual device that would be sent to the laboratory. It's a collection system. This would be collected at the barracks as opposed to that machine being administered on the roadside, correct? I don't make the policies, but correct. Let's assume we're going to mirror our alcohol situation in this one. This would not be taken until the individual was brought back to the barracks. They would have been going through all the implied consent forms and potentially speaking with an attorney if we're going to mirror what we do for alcohol before this sample could be taken. So would it be fair to say that the drop off would be a problem? We prefer to see collections scientifically done simultaneously so we're getting two pieces of evidence at the same amount of time. And again, it's gonna, this is the case where blood may take two hours getting them to the station and getting that second collection may not take that long. And confirmation testing is gonna be done at a much lower level, more specific to the drugs. We're testing drug classes here. I don't want to get too deep into that, but for instance, marijuana's at a 25 nanogram level. So we're not looking for bottom of the barrel, so to speak, numbers. We're looking for recent use marijuana at 25 nanograms. Your laboratory will probably test that at like five or two somewhere down there. Just walk through this because I want to make sure I'm clear in the sequence of events. By the time that this is taken, a period of time will have transpired between this and that particular machine. Your machine only tells us whether there is something present. Am I correct or is that telling me something more than that? It's telling you it's positive for that specific drug. That result is not admissible in court and it has no use whatsoever in the court system if people are actually following the procedure in the statute. This ends up being taken after all the processing is accomplished and the individuals had an opportunity to speak with their attorney. This is then sent to the laboratory and that's where the evidentiary tests surfaces. Correct. Maybe you're getting to this, but so do you have the saliva, the sample that the person uses when they're first checked at the roadside for a saliva sample? How's that, because you said this is the one for evidentiary. So that's evidentiary, so collecting a sample and running the test roadside. Again, the value is giving you the immediacy of the result. We're not seeing all fluid, whether it's tested here at the laboratory and blood, whether it's tested at the laboratory, neither one of those are gonna tell you someone's impaired and there's never gonna be a test that's gonna determine that. It's a tandem, right? It says an inference though that's currently in the alcohol situation. We are presuming someone will be an inference if they're over a point away. That's under the argument in court. We don't have that same mechanism yet set up for drug analysis. Okay. Under what? Why, what are the six drugs that you're testing for? Yes, so we're testing for amphetamine, methamphetamine, cocaine, opiates, which is morphine heroine, marijuana, and benzodiazepines. Was the show up methadone or Suboxone? No, we don't have that on our test, this particular test panel, that was the reason we're using that to show up is just terrible. Not on this panel, correct? So, are these the only impairment drugs? I mean, I'm just trying to figure out why, maybe the end point is, no, okay. Yeah, I tried, because I didn't want to do this for a minute. I did, honestly, I pre-soaked a little bit just for the sake of time. I swabbed my mouth. The swabbing process, on average, will take 60 seconds or less. And when we asked a question earlier, how do you know how much, if you've got enough oral fluid, there's a blue indicator that shows up on the wand that it basically turns blue the indicator that says you've got enough oral fluid and then you insert it into the instrument. And then it shows, if one of these six things shows up. This one has the blue on it, can you show us? So the swab has, I know the other one does. This is an old, I did this this morning just to be prepared, but you see down here, there's a blue indicator. So it just turns blue. Where's the swab on that one? It's the swab at the end there. And you stuff it in there. Correct. So you were asking a question, but did you want to make people aware of it either? Swab is, yeah. Yeah. So, huh. I thought you was gonna put your mouth there. Not a chance, not a chance. So, I just, so, amphetamines are illegal, right? Methamphetamine is illegal. And there's a lot of positive methamphetamines out there, correct? So, cocaine is, marijuana is in most places still. Opiates, some are, and some are. Well, no, it's heroin and what? It's morphine and heroin. Morphine and heroin, so. And benzo is that? Those are your valium classes. Those are the, okay. So that's a, these are drug classes. Those are classes. So we test the drug class. We screen the class. Opiates would include a box of code. Yeah. Ours will cross-react at a very high level of oxy, so it's not designed to detect oxy by itself. If they're abusing it at extremely high levels, we will pick it up in our morphine test. And then average use, someone who's prescribed using it under the right parameters by their doctor, they're not gonna test positive with oxy. If it's not. I'm sorry, I'm just, on each of these then, so it shows that I have, it says a ding if I test positive for opiate. I mean, it's each category. It says a ding if it shows up in your system. So I am taking a, I think benzodiapeousine is well-butterned and those are under there, right? So I'm taking that for depression and it shows up there. So now what does that say? What does it say to anybody that it shows up on the ding there that I have well-butterned in my system as opposed to a horrible lack of sleep, which I had Tuesday and drove up here and I probably shouldn't have been driving because I only got three hours of sleep. But that isn't gonna show up anywhere. So why do we even care what this says if there's something in my system, if it has, I guess it, I'm trying to wrap my head around why we care if somebody has a ding in their system unless we're trying to do this, whatever he called the confirmation bias that we're now going to show that they had it in there. And so we're gonna confirm our suspicion, our assumption that they were impaired as opposed to me having a lack of sleep. They're not gonna do a test on that to show that I was impaired. That's my question. And you're not probably the person to answer it because you have the product, you don't make the policy. Well, the policy is a big part of it but what I can say is these systems are designed to test at a certain level where it shows they're above as positive. Well, if you're taking a daily anti-depressant under prescription the way you're supposed to take it, okay, you're probably gonna be okay. It's abusive levels. People abuse those pills. See, not everybody just takes that one a day. And so that tied with once again, we go back to the officer has reasons to pull someone over. The officer goes through a process and eventually when it comes down to the test, he's gonna run the test and he's gonna determine whether it's the DRE and the TOX test together, they'll determine if it's a benzodiazepine, if it's an opiate, if it's THC or cocaine. Because that's what the DRE process does is it narrows this down just like this instrument does through their observations to exactly what drug class that individual is taking. So. Yeah, no, I'm okay, bye. So are the roads. Can pass this around, there's the results. Is the test safer than the roads in Vermont? So tough question to answer in terms of data, are they safer but the, so states that use this, you have a tool to take me off the road if that's me. Maybe not arrest me, but you're alerted that I've recently used drugs, maybe I failed the field sobriety test on the along the road side and you're taking me off the road and taking it to the next step. That potentially, every single person you do you potentially are saving lives on the other side. We have a state like Michigan who has recently implemented a program, a pilot project amongst five counties with their DREs where they're doing this statewide right now and their legislation has law in there that says you have to give a sample. So it's treated like the breath testing is being treated in Michigan. In Canada right now, north of your border, they're about to deploy system like this throughout the country. For their legalization process. Massachusetts has done pilot projects, so there is a lot going, California yesterday passed their legislation allowing this type of testing to occur. But there's no evidence that this would make our highways safer. Thank you. The only evidence you would have is basically the data through the testing like NHTS has shown over the years. So take a step back. Where are we, where are we going with this whole process? You go backwards in time with DUI. And you go back to MAD and Candace Lightner and folks like that who lost people and started this whole process of don't drink and drive. Well, I think it was two years ago NHTS have put out data showing the positive effects of not just the testing or the arrests but also the public awareness and what it's done. So the proof there is we've seen the data show the DUIs have come down. Those same effects have not been put in place with drug testing, roadside, with drivers. Whether it be with this or even blood in the laboratory, a lot of states stop at an alcohol screen and they don't bother checking for the drugs. And we have found that together, the effects are multiplied on the roadways. But what NHTS have found in that study was because they do these roadside surveys, the alcohol went down, but the drugs around the uprights. So there is some evidence there to speak of that. One other key point, because I wanna go back to Senator White's comments this morning about the Colorado data and I agree with her, we're not sure how that data was put together because Colorado chose not to participate, they came legal faster than they had policies in place. So they couldn't, they played, they're still playing catch up to what they did. They turned down an opportunity, once it became legal, you have a window of time. They didn't wanna do any roadside surveys prior to actual retail sales. Washington State did that. So NHTSA funded through Pire, which is a research group, a study in Washington State. Prior to implementation of retail sales, they did roadside testing and then they did another one six months a year and in a year and a half later. And in those studies they found prior to legalization, they had a certain rate, but it increased over the next 18 months after legalization. And what they really found was most of us would think, we're gonna see this at nighttime drivers. The biggest increase was daytime drivers, which is scary, because that's where our school buses, our kids are, more people are on the roads during the day. So that's what they did it the right way because they participated in that process. Does your tests show that more people tested positive or more people were impaired? They had more positive screens if I recall. More positive screens, but not necessarily more impairment. Honestly, I don't know the exact details to that and certainly Washington State has published a lot of information relating to their drug driving program. I have to commend they've got one of the best data collection processes in place so far and they're kinda being looked at as a model of what they're doing at this point. And they're doing the testing? Yes. With your machines? Right now, I think they're still doing the laboratory base by the piling some people who are all fluid instruments. We've had a lot of arguments, problems this morning. But isn't the DRE as well as an A-Ride program just as effective as any of this? First, you have to observe somebody driving impaired. And fortunately or unfortunately, on my rides to Montpelier and to Bennington and back from Montpelier, I gotta tell you, I'd see maybe one or two police officers the entire 123 miles. So if there's no police officer out there and I drive in the back roads, interstate highway, most of us do get here. It's curious, just curious to that that we have so few people who actually are out there on the highways. All this assumes that you're gonna have a number of law enforcement, you're gonna have the proper number of those deaths, proper number of DREs, and I'm sure if I'm driving through Newport I'm probably more likely, if I'm driving through Bennington I'm more likely to see a piece of police officer than I am anywhere else in Montpelier. Yeah, I'm sure there's impaired drivers. I live in the country in Connecticut and we have very small police force and it's the same thing. People can drive around farmland all day long and never see a police officer. So I mean, that's unfortunate, we don't have the coverage that we need. The testing, again, is one step in the toolbox for them to use. The DREs examination or the A-Ride officers findings leads to the screening test. Again, it's just a screening. It's to send up the flag that says, you gotta be careful here, there's something in the system. So you're not arresting roadside based on this and it's always been a tandem process. Yeah, go first. This probably will come up in appropriations. Should we get that far? But can I ask what the going rate is for one of these? So the test on average for the test itself, the cartridge and the swab are $20 on average. Do you list themself? The instrument itself, this price is $4,500 if you buy one. Life expectancy? About five years before, and life expectancy is only based on new technology coming along as we redevelop. I mean, we're doing things right now for Canada that are gonna bring this another step higher. It's not gonna change the instrument, it's a software upgrade, so. Is there a maintenance schedule that comes? So great question. Unlike a breathalyzer, so here's where they differ a little bit. We're not analyzing, the instrument is performing the right environment, temperature control to run the test. The test is being run inside of these cartridges. Okay, there's a buffer on the backside of this. So it comes pre-calibrated. So unlike a breath test where they have to be regularly calibrated, we have an annual maintenance. Send it in once a year, the instrument's gonna let you know when its maintenance is coming, and then it's gonna tell you when it's due. And you send it back to our facility, we maintenance it, and we send it back out. Is that part of the initial expense or is that an additional expense? Under the first year, it's part of the cost of the instrument, and there's options to buy additional service from there. Okay, can I ask Dr. Cunty a question, because I didn't have any answer. We have a relation back formula for breath tests. Is there any such formula in existence right now for the cannabis or is this? No, not for any other drug, other than alcohol. Can you explain what you just asked much? Yeah, when you are, the preliminary breath test at the roadside for alcohol, you go from there, assuming there's a positive result and you've flimped whatever other tests are observable, you end up going to the station and you have a data master test taken. The data master test is taken at a given point in time. You were last driving at a given point in time. The question of whether you were impaired at that point in time means there has to be a relation back from your test result, back to the point where you were driving. Sometimes you're going up, sometimes you're going down, depending on the circumstances. So we have a formula in place for internal breath tests at the time you were driving. If you were to blow point one, point zero, you know, point one, zero, whatever. Point zero, when you got back to the office, to the barracks, you would probably have been at point one all at the time. I will let the expert say that, answer the question, but as I understand it, be going up or down depending on several different factors. Right, so we look at the amount of time that's left between operation when the rest was taken and then part of the interview question that the officer has with the operator are when was your last drink and the questions to that? When that went back to Fred, when that item, that little cartridge that you showed us, does that go to the lab and then they check that or is there any other thing that happens with your lab? So when the cartridge is removed from the instrument, the swab is still in the cartridge. And at that point, they can put it in the bag like I just did and you have a choice of throwing it away. This is policy, so I can't really dictate but the option does exist to say, here you go, sir, here's your sample. So when you're concerned about DNA on here, I'll give it back to you. They can't do anything with this, they can't test themselves. The instrument's pretty sophisticated. I can't take this and stick it in there and try to run a test and say, oh, his was positive, sorry, I'm gonna put his positive screen in and test you and it won't, it's reading barcodes, it knows if it's expired, it knows if it's been run before, it logs them all in as unit. It's a very, there's more than meets the eye with the instrument, it's very, very sophisticated in terms of that. Newport has one of those machines. They can only afford one, $4,500 plus all that. We give them a deal. Let's assume that Newport has one of those machines. I don't know how many officers Newport has, that would have been better off saying that it's like 23 officers. And I don't know how many cars, but you've only got one of those machines. It's kind of a spotty thing where there are not person A getting stopped by the officer with that machine and person B getting stopped by an officer without them. Is that what's going on? I'll be back. So they're used to. Everybody, I assume everybody in the Newport Police Department has a body camera. Everybody has all the vehicles out of a camera on the vehicles. So you're on, sorry, you're gonna need to stop by it. You know that everybody is, but with those you're not having, everybody doesn't have them. I'm assuming Canada's buying what, $500? Thousands. Thousands. $5,000? Spain just bought five. Their first door was for five to 700. Well, it was the end of the big country, so, I mean. Well, they have a similar problem because. I'm sure if I was out in the Yukon where Senator Benning was just to have by summer, his chances of getting caught by some police officer with one of those machines in the ministry versus if he's driving in downtown Montreal. How is that, did that sound that, I assume that everybody has a breathalyzer, right? But not everybody will have one of those, and so we're gonna allow survival, but it's gonna be very selective as to which officer had it, which officer did it. So the single investment. My point is that the machine goes with the vehicle, right? Sure. And that one officer. Or it can be moved around to other officers, Massachusetts to a sobriety checkpoint in their pilot evaluation, where they had these sobriety checkpoints and they did it that way. So, you know, it really comes down to budget and ability to deploy different technology where you need it deployed. Price-wise, they do come down, but as you heard in previous testimony, just a collection rate alone for blood is anywhere from 50 to $200. So we're looking at a $20 test and. I'm busy. I'm not arguing you're a machine. Arguing whether it's a good investment or bad investment. I'm arguing from the perspective of the chances of me driving from Bennington to a superior impact 256 miles every week. What are my chances of if we're gonna keep our highways safer and this machine is gonna get investment in that. And we provide the bill to allow this. What are my chances of the officer having one of those machines versus not having one? Which is the constable that likes to stop you all the time. He'll probably get it because he might get a kickback on it. I don't think the constable, I don't think he'll get it unless he stops enough people to be. Well, I was gonna say, he probably may be able to buy that alone. We're finding a lot of. Chief, if you wanted to answer that question. Yeah, I would just say, so this portable radio is $5,400 per, I can't afford 20 of these and I have 20 officers. So at the beginning of the shift, here are the keys to the car, here's your radio, here's your device. This is yours for the shift at the end of the shift, giving the device, giving the keys to the car and giving the radio. That's how Newport PD would afford a program to implement like that. And then eventually, hopefully through grant funds and what have you, we purchase more. And a lot has been happening with grant funding with instruments. So one of the, I realize that this is, but everybody says it's one more tool in the tool chest or however we want to use that term. And that first you have to have the, the driving, the impaired driving stop before you use this. But I don't think that that's always true. And I don't think that the chief would ever do this, but there are a lot of stops that are stops for defective equipment, speeding. Speeding is probably impaired driving, but not necessarily defective equipment. You open the window and smell marijuana and boom, you're gonna assume that the person is impaired. So I think that that's, that you don't even have to have the impaired driving in order to do something like this because we see a lot of drug stops result from stupidity. So stupidity on the part of the driver who's been going on a while for an hour or I don't mean stupidity in terms of the officer. I mean stupidity on the part of the person who's driving or that they didn't register their car or that's. We wanted to buy a car back at home on Sunday or Monday where a person who's a resident who went out to have a cigarette and is in a car, lit the cigarette and dropped the match on the floor where a bunch of papers were and the car went on fire. Next to the car was parked a brand new Chevy Towel that owned by one of the staff members at the back at home. Both were burned up in the fire and died. He was not impaired but he was stupid. He didn't have a cigarette. So can I ask you a question? Can I just ask you a question with regard? I probably nothing to do with the trip but. It's interesting. With regard to the. Things happen. The evidentiary sample. The second one. Where, what's the, when does that lose its vitality or whatever you said, short term life? So it comes, there's a buffer in there and the buffer helps retain the drug concentration and also the extraction process. I'm not sure exactly because this isn't my laboratory side of the word. Do you have a contest? I know there's definitely a shelf life on that. It's not as stable as blood samples would be but I can't tell you for certain because we've not done a study ourselves on it and I haven't looked into that. You have the voluntary program, right? A while back. The pilot study, yes. That, what type of treatment would you do? You did? You did? You did? Yeah. So there's nothing to prevent you from doing that at a sobriety check under current law commission, not commissioner. Doing a pilot study at a checkpoint? Yeah. No, absolutely not at every point. Because it would be all voluntary. It can't be used. And that's what NHTSA did with the roadside surveys around the country is it was voluntary and they actually paid people for blood and oral fluid so they could collect the data. So quick question. Senator White spoke about the speeding thing. So one thing Colorado has done since legalization and enforcing roadside testing is they've collected data for the reason for the stop for people who've tested positive. And most of us think that I drive better when I'm stoned. I go slow, et cetera. The number one reason for a traffic stop for that, based on the individual's testing positive was speeding because they're overcompensating for what their brain has slowed down and they're overcompensating and they're driving. And I've seen them present this data at highway safety conferences. Nobody in the room, hundreds of people ever, ever comes up and says speeding and he puts the data up and he's got all the, they've got a lot of good metrics they've collected over the years to demonstrate that. So it kind of refutes the fact that I drive better when I'm stoned. Yeah, but there's a lot of different, a lot of leeway between being stoned and testing positive help. Oh, sure. Yeah. But we're looking at Marijuana, we're looking at eight to nine hours in oral fluid after recent use. Passive inhaling is virtually non-exist, it is non-existent at these levels that we're testing at. So the whole theory of someone else was smoking, I was at a, that doesn't exist. And we do have white papers, peer reviewed. We have three peer reviewed white papers that we're done. Short. So we'll, here's from Mark and Chloe at Brown. Is there anybody else that is here from here? Now? No. Next week. So Marshall and Chloe? Yeah, and right here. Is there anybody else that would like to speak next week?