DWH

Proving a Vermont Marijuana DUI

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Michael was unfamiliar with the rural Vermont road he was traveling on.  On his way to play some football in northern Vermont with a friend, Michael choose to make a pit stop off of exit 5 on the heavily traveled Interstate 91.

According to police affidavits, Michael was pulled over for staying in the passing lane as he approached the onramp to I-91.  The officer who pulled him over, a local sheriff’s deputy, stated that he could smell marijuana coming from the car. Michael admitted to the officer that he was in possession of under an ounce and he handed over the marijuana to the officer.

What could have resulted in a traffic ticket and a fine, turned into a criminal investigation due to the officer suspecting that Michael may be under the influence of marijuana.

Michael was subject to standard alcohol based field sobriety tests, and a roadside breath test, which showed that Michael had no alcohol in his system.

Instead of letting Michael go, the officer arrested him, alleging that he had probable cause to believe that Michael was under the influence of marijuana.  Attempts were made to contact a specially trained Drug Recognition Expert, whose 12 step evaluation is used to issue an opinion on whether a motorist is under the influence of drugs.  No such DRE was available to evaluate Michael on this evening.

Michael was subsequently lodged at the Southern State Correctional Facility, where he was released several hours later after being able to post bail.  Michael’s name and details of his arrest were released to the media and he was issued a citation to appear in court.

Michael hired an attorney and he plead not guilty.  Several months later, the State dismissed all charges against him.

Marijuana and Driving

Michael’s arrest illustrates the significant grey area surrounding marijuana use and its effect on operating a motor vehicle.  State legislators across the country are grappling with marijuana based DUIs as legalization for both medical and recreational use continues to gain momentum.

Currently 29 States have legalized medical marijuana use, while 9 States have enacted laws legalizing recreational use, with three; California, Massachusetts and Vermont enacting legalization that will take effect in 2018.

According to a recent Rand report, which was commissioned by Vermont lawmakers, household surveys found that 12 percent of Vermont’s population ages 12 and older— and nearly 30 percent of those ages 18 to 25—reported using marijuana in the past month.  “We have seen statistically speaking a slight rise in marijuana consumption over the last 15 years,” stated Ben Hansen, an economist with the University of Oregon who has conducted extensive research in the Marijuana market. “Meanwhile, tobacco and alcohol sales have been plummeting during that same time period.”

Proving a Marijuana DUI

The changing legal landscape has placed an urgency on developing reliable investigative criteria for Law Enforcement in order to support an arrest on suspicion of an operator operating under the influence of marijuana.

Vermont Bill H.501, which amended the drugged driving statute in 2013, gave law enforcement significant leeway in making arrest determination. Instead of requiring law enforcement to prove that the operator was “under the influence to a degree that renders the person incapable of driving safely”, lawmakers amended the language to only require that law enforcement prove the operator was “under the influence to the slightest degree”, which is the same standard used to charge individuals of driving under the influence of alcohol.

Lt. John Flannigan, the Drug Evaluation and Classification Coordinator for the State of Vermont, stated that the amendment has given additional power to law enforcement, that allows for the same standard to be used for all substances.  “There is no set criteria for law enforcement to reach a conclusion of impairment,” stated Flannigan, “There is no magic number of clues, in order to make an arrest, an officer must look at the totality of the circumstances”

The totality of the circumstances noted by Flannigan equates to the finding of Probable Cause which is necessary for a citizen to be arrested for suspicion of a committing a criminal offense.  The Vermont Supreme Court in the 2005 case of State v. Goldburg found that  probable cause exists when the affidavit sets forth such information that a judicial officer would reasonably conclude that a crime had been committed …” (internal citations omitted).

Much of the fact finding to support a reasonable conclusion of criminal activity falls on the shoulders of the 52 Drug Recognition Experts located within Vermont, commonly referred to as DREs. “We want to make sure that we provide specialized service to every corner of the State,” stated Lieutenant Flannigan. “We still have areas of need in the state and we are looking to fill those holes.”

Flannigan has acknowledged the evidentiary hurdles law enforcement face when investigating drugged driving cases as many of these cases hinge not only on the DRE opinion but also the results of blood tests, which can be taken several hours after a traffic stop, and analyzed several weeks after the arrest.  “It is very difficult and inefficient to get a timely sample of blood for a drugged driving case,” stated Flannigan. “We are looking at other bodily fluids that are less invasive such as the saliva test, which a lot of states appear to be moving towards.”

State legislators have begun to take steps to incorporate a roadside saliva test into Marijuana based DUIs.  The bill just recently was passed by the House of Representatives.

Although the Bill is meant to address some of the concerns associated with blood tests, the 2017 National Highway Transit Safety Association (NHTSA) report to Congress on Marijuana based DUIs has found “that saliva does not appear to an an accurate and reliable predictor of impairment from THC.”  

Flannigan argues however that these tests are merely used to confirm drug use, which taken with the other observations of a DRE are useful in establishing a case for drugged driving.

“Blood and saliva tests are excellent at identifying the drug that is causing impairment, but there is not a correlation between blood or saliva concentration and drug impairment”, stated Dr. Marilyn Huestis, former Chief of Chemistry and Drug Metabolism at the National Institute of Drug Abuse Intramural Research Program. Her research documented that small amounts of THC can be detected in chronic frequent cannabis users up to 30 days after last use. “There is no blood THC cutoff concentration that documents marijuana impairment in occasional and frequent cannabis users”, “For the occasional user, THC is out of the blood in 6-8 hours, but with the frequent user, THC can be stored for longer periods of time in fat tissue.  Having THC in the blood in the occasional user means recent use, but in the chronic user, it may not represent recent cannabis use. For this reason, I feel it is important to document impairment by a trained police officer or other witness, and then test a biological fluid (either blood or preferably oral fluid or saliva, to indicate which drug is producing the impairment.”

Marijuana and Crash Risk

The 2017 NHTSA report found that there are contradictions in the science based studies that have evaluated marijuana use and the risk it may impose on being involved in a motor vehicle crash.  Some scientific reports have found “minimal or no effect on the likelihood of crash involvement, while others have estimated a doubling in the risk of crash involvement.”

Hansen has stated that these conflicting findings may be due to the reduced risk taking behavior that those under the influence of marijuana partake in when operating a motor vehicle.  “There is limited evidence on the crash risk of marijuana influenced individuals,” stated Hansen. “What has been found is that there is a difference in risk adversity, where with alcohol you see an increase and in marijuana you see a reduction.”

Due to the limited scientific evidence, NHTSA has acknowledged that there is no set standard for marijuana impaired driving and thus, the onus for arrests falls solely on the shoulders of law enforcement.  “In 1908 the Model T was released, in 1910 we had our first drunk driving studies, the first quantification of DUI a level was in 1927 and the first drunk meters were constructed in 1938,” stated Hansen. “However, with marijuana DUIs, we are currently stuck in the 1920s scientifically.”

 

Vermont Attorney Evan Chadwick Successfully Completes Drug Recognition Expert Training

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Attorney Evan Chadwick of Chadwick Law, traveled to Alpharetta Georgia in order to participate in a vigorous three day training regarding the process and science behind a Drug Recognition Evaluation that accompanies many Vermont DUI prosecutions.

Attorney Chadwick received a thorough overview in the 2015 NHTSA/IACP DRE Pre-School & DRE 7-Day training curriculum that officers attend nationwide. Emphasis was made on analyzing a DRE case file, to include, the DRE Face Sheet & DRE Narrative report, how to compare the two with one another and with the Drug Symptomology Chart, as well as emphasis on each specific step involved in a 12-step DRE evaluation. Time was also be spent covering the IACP’s rules and regulations that officers are required to follow in order to become certified and to recertify as a DRE.

“The training I received was essential in furthering my understanding of the science behind a Drug Recognition Evaluation and what errors officers make in conducting these evaluations”, stated Attorney Chadwick. “It is a training that anyone who is serious about defending DUIs in Vermont needs to take in order to best serve their clients”.

DUI checkpoints net more than just DUIs

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checkpoint

The sign should read, “law compliance checkpoint ahead”, as officers are on the lookout for all types of potential criminal offenses.

A favorite tool for law enforcement in detecting drivers operating under the influence of alcohol, DUI checkpoints have long been effective in law enforcement netting arrests on busy holiday weekends such as Memorial Day and the 4th of July.  However, drivers would be remiss to believe that these checkpoints are present only to detect potential alcohol based offenses along busy Vermont roads.  Instead, in recent years, law enforcement have honed their skills to detect other offenses, such as drug consumption that can also result in a motorist be inglead off to the mobile command post to be processed for a criminal offense.

Of the most common offenses detected by law enforcement is the possession and consumption of marijuana.  Although possession of small amounts of marijuana have been decriminalized (resulting in only a civil infraction, not a criminal citation for possession of under 1 oz.), the detection of marijuana can now lead to not only a hefty fine, but also increased scrutiny by law enforcement to see if the operator is under the influence of marijuana while driving the motor vehicle.  Although this is not your standard run of the mill DUI investigation, drug recognition experts are being trained at increased levels to be able to respond quickly to a report of a potential driving while high infraction.

These offenses carry with them the same penalties as a driving under the influence of alcohol charge (maximum of 2 years in jail and loss of license for up to 6 months).  Further, even if a motorist is found not be under the influence of marijuana, but is under the age of 21, they can face up to a 6 month license suspension as a result of merely possession a small amount of marijuana.

DUI checkpoints are misleading in name and in purpose.  Law enforcement use these checkpoints to have unfettered brief contact with a magnitude of individuals to detect and arrest those suspected of violating Vermont laws.  Thus, when approaching one of these checkpoints it is important to know that all actions committed by the driver will be heavily scrutinized and that you will not be off the hook if you have not consumed alcohol, but may have something else of interest in the vehicle that a well trained Vermont law enforcement officer may be able to detect.

Will marijuana legalization change Vermont DUI laws?

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By most accounts, marijuana legalization is now considered a foregone conclusion in the State of Vermont. According to a recent Castleton State College Poll, 56 percent of Vermont adults now support legalization. Further confidence in legalization has been voiced by the Governor Peter Schumlin, Speaker of the House, Shap Smith, and Attorney General, William Sorrell.

With momentum growing, the State elected to commission the Rand Corporation, to conduct a financial analysis of the cost benefits of marijuana legalization to the State of Vermont.

In its recently released report, it was disclosed by Rand that Vermont could generate up to $75 million in tax revenue per year. This figure certainly rings bells in the minds of legislators, as they faced a $113 million budget shortfall by the end of 2014.

With the potential benefits in mind, it should come as no surprise that Jeannette White, D-Windham County and Joe Benning R-Caledonia County, introduced a 41-page bill in December proposing legalization of the possession of up to one ounce for recreational use and cultivation of that totaled 100 square foot or less.   White has long supported legalization, as she led the effort to approve Act 76, which decriminalized possession of small amounts of marijuana in 2013.

Despite the optimism of passing a legalization bill in 2016, there remain some headwinds for legalization the strongest of all being the interpretation and enforcement of DUI laws when it comes to Driving while under the influence of marijuana or Driving While High (DWH). If this delay lasts too long, the bill’s approval may outlast Schumlin’s 3rd and final term, causing the bill to be placed on the desk of an unknown governor.

Currently, Vermont law does not give much clarity on the subject of DWH, merely stating that someone is under the influence of marijuana or other drugs if the impairment, is “noticeably and appreciably” affecting a person’s ability to drive a vehicle safely.

“Noticeably and appreciably” certain appear to lend themselves subjective observations that allow for significant discretion by individual law enforcement officers.  However, convictions for DWH have posed significant challenges for prosecutors to scientifically prove that the motorist was influenced by marijuana at the time of the stop due to the lack of a numeric standard for impairment that could be relied upon similar to the current .08 law for alcohol.

Now, with legalization on the negotiating table, reports have surfaced that lawmakers are considering amending Vermont DUI laws to allow for the admission of saliva tests, which could be conducted roadside. These tests are alleged to be able to detect recently ingested marijuana and provide a reading that could give prosecutors further tools to prove DWH charges.

In a 2013 report from the Drugged Driving Coalition, Greg Nagurney, the appointed representative of the State’s Attorneys and Sheriffs, stated that a majority of county prosecutors and sheriffs supported an amendment to DUI laws to allow prosecutors to charge motorists with DWH if impairment could be detected “to the slightest degree” (23 VSA 1201(a)(2). If this low standard of proof is approved as part of the legalization bill, it may be difficult for any motorist who has consumed marijuana in the last 30 days to immediately refute law enforcement suspicions of DWH. If these suspicions are supported by other evidence such as smell, bloodshot eyes or confusion, a probable cause arrest could very well ensue even in cases when the high from smoking marijuana has long subsided.

 

 

 

Smell of marijuana may not be enough for search of vehicle in Vermont

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With the passage of Act 76 in the State of Vermont, decriminalizing possession of under 1 ounce of marijuana, questions have been raised as to whether or not the discovery of such an amount can still give a basis for law enforcement to search a motor vehicle.  Without owner consent, Vermont law enforcement need to meet a probable cause of criminal wrongdoing in order to receive approval from a judge for a search warrant.  Thus, given that possession of small amounts of marijuana is now considered a civil infraction, similar to a speeding ticket, challenges are beginning to surface in Vermont and surrounding states as to the lawfulness of warrants issued on a violation of ACT 76 alone.

Although the law is clear that for civil violations, officers may not detain motorists for a time that would exceed the normal time for issuing a traffic ticket, law enforcement continues to challenge this rule by attempting to expand the scope of their investigation when they claim to smell a strong odor of burnt marijuana.  However, some recent cases against search and seizure have arisen recently in Massachusetts, one most notably in      COMMONWEALTH vs. MATTHEW W. OVERMYER, which states “In sum, we are not confident, at least on this record, that a human nose can discern reliably the presence of a criminal amount of marijuana, as distinct from an amount subject only to a civil fine. In the absence of reliability, a neutral magistrate would not issue a search warrant, and therefore a warrantless search is not justified based solely on the smell of marijuana, whether burnt or unburnt.”

Thus, with the increasing number of drugged driving arrests occurring on Vermont roads, and the legalization of marijuana possession in the forefront of the Vermont legislature, it is reasonable to conclude that a substantial amount of grey area continues to exist in prosecuting such cases that can only be clarified through litigation in the Vermont County court system.

The battle over the saliva test in Vermont drugged driving

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Vermont lawmakers continue to struggle with finding the correct balance in prosecuting motorists who may be under the influence of marijuana or other drugs while operating a motor vehicle.  Vermont law enforcement has claimed that there is a saliva test that can be implemented in order to prove that a motorist has marijuana in their system.  However, what lawmakers continue to struggle with is determining whether that detection alone, satisfies the DUI statute, which states that the presence of the drug must effect the motorist’s ability to operate their motor vehicle safely.

In an effort to address the vague nature of the current DUI-drugs statute, the Vermont legislature introduced a bill in 2014 that lowered the standard of proving a Drugged Driving charge by being able to prove that the operator was under the influence to “the slightest degree”.  However, several lawmakers in the Judiciary Committee, including Chair, Jeanette White: D-Windham County, stated that this standard cast the net too wide.

In an effort to compromise, language to the bill was introduced that would allow someone to be arrested for Drugged Driving if prosecutors could show that drug use “interferes with safe operation of a vehicle in the slightest degree.”.

If this language is in fact adopted, it still remaining unclear exactly how law enforcement will be able to detect this level of impairment beyond the flawed Drug Recognition Expert (DRE) standard that they have used to this day.  John Flannigan, a Lieutenant with the Vermont State Police, has stated that a roadside saliva test may in fact be the answer to this question.

Flannigan’s argument is that the saliva test, which is able to detect the presence of certain drugs, including marijuana, along with the DRE testimony, would be sufficient to show impairment.

However, even with this additional evidence, under the revised drugged driving bill, law enforcement would still need to show that the motorist’s impairment “slightly” effected their ability to operate a motor vehicle safely.  Although the saliva tests and DRE testimony may be sufficient to arrest an individual, much remains to be seen if these charges can actually stick when individual cases maker their way through the Vermont Judicial system.

 

 

What is a Vermont DRE?

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DRE stands for drug recognition expert.  It is an attempt by Vermont law enforcement to combat the growing concern of individuals driving a motor vehicle while under the influence of marijuana or other drugs, which is otherwise known as Driving While High (DWH).  Here is how it works.

A motorist will get pulled over by law enforcement and during their initial interaction, law enforcement will note that they recognize certain clues of impairment (blood shot eyes, confusion, seating, nervousness etc..)  Based on these observations, the officer will inquire if the motorist has consumed any alcohol or drugs recently.  If the motorist admits to some form of consumption of drugs, the officer may, along with their observations, have enough evidence to perform certain tests aimed at detecting drug impairment.

In order to perform these tests, an officer needs to have specialized training that certifies them as a DRE.  Although prosecutors have attempted to enter DRE testimony into evidence at trial, there is still substantial question as to whether the training the officers have received is sufficient to qualify them as an expert and whether their testimony alone is sufficient to uphold a conviction for DWH.

According to the Governor’s Highway Safety Program, there are currently 35 officers across the State of Vermont that have been certified as a Vermont Drug Recognition Expert, with the aim of having an increased number of officers take the two day training each year.  The  additional training offered to law enforcement is beginning to see dividends for enforcing DWH laws as in 2014 it was reported that officers conducted 214 evaluations, a steady increase from previous years.

With marijuana legalization making its way through the Vermont legislature and additional tools being added to the arsenal of Vermont law enforcement, motorists will need to become increasingly cautious as to their driving if they have ingested drugs or alcohol recently. It appears that Drug Recognition Experts are only one small part of a significantly wider net law enforcement will be casting when they commence a DWH or DWI investigation that could ensnare many motorists who do now know the DWH laws in the State of Vermont.