MONTPELIER -- Senators on Friday worried that passing a bill about drugged driving will result in Vermonters being unnecessarily stopped, tested and perhaps charged with DUI-drugs.

Law enforcement officials said the bill, H.501, simply lowers the standard of proof for convicting someone of DUI-drugs to align it with that for DUI-alcohol.

The House passed the bill earlier this month. Rep. Dave Potter, D-North Clarendon, is the sponsor.

Vermont law has two standards for charging someone with driving under the influence of alcohol. There is a single, higher standard for DUI-drugs.

The DUI-alcohol standard is a .08 or higher blood alcohol concentration (or .02 for driving a school bus), or that a driver is "impaired to the slightest degree," a standard set by the courts.

To convict a person of drugged driving, however, a prosecutor must prove a person was "incapable of driving safely."

Prosecutors say DUI-drug cases are rarely won because that standard is nearly impossible to prove. As a result many are pleaded down to a charge of negligent operation, which carries fewer penalties.

A defense attorney can admit a client was on drugs and driving unsafely but unless the prosecutor can prove the person was incapable of driving safely, they can't win, prosecutors say.

As Greg Nagurney, an attorney with the Department of State's Attorneys and Sheriffs, explained the bill to the Senate Judiciary Committee on Friday, senators worried passing it could lead to more, perhaps uncalled for, drug tests of drivers.


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"I think there's a great deal of concern about what this bill might do to the average Vermonter who is not using any drug but is suspected of using drugs," said Sen. Dick Sears, D-Bennington.

To be evaluated for a suspicion of drugged driving a person is often taken, handcuffed, in the back of a police car to a police station, Nagurney said. The person is not necessarily given a blood test, but could be.

All officers have special training in detecting drug and alcohol use, Nagurney said, and clues in DUI-drugs cases are usually very straightforward.

Sen. Dick Sears, chair of the Senate Committee on Judiciary. (File photo by Alan Panebaker/VTDigger)
Sen. Dick Sears, chair of the Senate Committee on Judiciary. (File photo by Alan Panebaker/VTDigger)

"I don't think there's going to be many people who are fishing around for something in their purse and wind up getting a DUI-drugs," he said.

If an officer has evidence of impairment he can't attribute to alcohol, he calls a drug recognition expert, Nagurney said.

First, the expert attempts to rule out other reasons for impairment, such as a medical condition.

Sears asked whether it could be held against a person if he or she refused a blood test as part of the evaluation by the drug recognition expert. Nagurney said he believed it could but the Vermont Supreme Court has not ruled on it.

"I guess what's troubling is we passed the alcohol test and then now we have to go through another test," Sears said.

"I think, frankly, that's reasonable if the suspicion is that you're impaired by drugs, not alcohol," Nagurney said.

Vermont State Police Lt. John Flannigan said that officers deal with someone who admits to taking prescription medication in the same way as someone who admits to having had a beer or two.

"That doesn't mean that they're under the influence," he said.

The officer looks for red flags such as paraphernalia or drug containers or if the person vomited or handed the officer a credit card instead of a license.

"It's the totality of the circumstances," Flannigan said.

Sen. Jeanette White, D-Windham, told the story of an elderly woman stopped at a police checkpoint and asked to touch her toes and stand on one foot.

White worried this could set Vermont up for people to be charged unnecessarily.

"I think we're creating a police state," White said.

One in 10 drug recognition expert evaluations results in a determination of no impairment or uncovers a medical condition, Flannigan said.

The committee plans to take more testimony on the bill, including from Defender General Matthew Valerio.

Sears asked to see a video of the roadside stop and drug recognition expert evaluation process.

Sears also proposed changing the effective date to a time after the state has increased the number of drug recognition experts, suggesting it be 25 percent of all officers.