While Governor Phil Scott’s signing of marijuana legalization bill H.511 was the culmination of years of hard work and cause of celebration for many, it presents an entirely new set of challenges for law enforcement agencies throughout the state.

Law enforcement officials remained steadfast in their opposition to the bill, but now that it’s been signed into law, they have no choice but to adapt and enforce the changes.

In May, Scott vetoed Senate legalization bill S.22 on the grounds that it did not do enough to address highway and youth safety. Although he felt H.511 did adequately address those concerns, those who opposed the bill echoed his previous sentiments, and their concerns aren’t unfounded.

The Commander of Safety Programs for the Vermont State Police (VSP) Lieutenant John Flannigan says that marijuana has been found in increasing amounts of DUI cases and DUI-related blood tests over the last couple of years.

“There are certainly some concerns that we’re going to see more impaired drivers under the influence of not only marijuana, but a combination of other drugs as well,” he said. “Our number one that we see in substances other than alcohol in impaired driving cases is cannabis, followed closely by what we call the Central Nervous System classification of drugs . . . and then next would be our narcotic analgesics, which are opioids.”

When asked if this increase is due to more people actually driving under the influence of marijuana or if it’s because more officers are able to detect marijuana impairment, he said that that’s a question that can’t really be answered.

Lamoille County Sherriff Roger Marcoux Jr. said it’s his understanding that prosecution for people driving under the influence of drugs has surpassed prosecutions for people driving under the influence of alcohol, but there isn’t necessarily a determinant for which drugs are involved in these cases.

“Vermont courts do not yet distinguish the difference between drug categories in driving . . . However, the Vermont Drug Recognition Experts (DRE) program does,” Flannigan said. “In 2017, the program saw an overall increase in cannabis cases, followed by regulated pharmaceuticals and narcotic analgesics.”

The Central Nervous System (CNS) classification of drugs consists of anti-depressants, anti-anxiety medications, sleep aids and other benzodiazepines. Toxicology results provided by Flannigan show that while cannabis was seen in the highest number of cases (30 percent), CNS Depressants came in a close second with 27 percent. The narcotic analgesics, or opioids, appeared in 23 percent of cases. Most, or possibly least, surprising of all was that 46 percent of toxicology samples obtained in 2017 contained drugs from two or more categories.

Flannigan reiterated his concern regarding an uptick in impaired drivers on the road, but said that the Marijuana Advisory Commission established by the governor is looking into a roadside test, the most agreed upon of which is an amino acid-based saliva test.

The tests are widely supported by law enforcement, and Vermont actually participated in a pilot program that found them to be both “accurate and reliable.” The test uses about one milliliter of saliva and indicates whether any number of common drugs are present, such as marijuana, cocaine, amphetamines, methamphetamines and opiates.

The American Civil Liberties Union (ACLU) vehemently opposes the tests. So much so, in fact, that they, along with the Defender General’s office, have threatened to bring the matter to court should the Legislature pass any measures allowing the tests.

Despite these threats, the House Transportation Committee did just that earlier this month when they almost unanimously passed H.237, a bill that would allow law enforcement officers to use roadside saliva testing.

“They ignored the science and did what they wanted to do,” said Defender General Matthew Valerio. “The compelling evidence is that saliva testing doesn’t tell you anything about impairment.”
While it’s true that the tests don’t determine impairment, Flannigan says that they are useful in corroborating detectable impairment.

“It’s not the silver bullet,” Flannigan said of the tests. “I think it’s a tool that’s going to greatly assist and enhance officers at the roadside to determine impairment and probable cause for us.”

Despite making it out of committee, H.237 still faces a long road that may not see the bill make it through the House, never mind through the Senate and onto the Governor’s desk.

Until a measure is passed regarding roadside testing, the state must rely on its DRE program. DREs are specially trained “drug recognition experts” who determine impairment by substances other than alcohol. Although it may seem logical to train all law enforcement officers as DREs, both Flannigan and Marcoux deem it to be an unnecessary use of resources.

“If I could afford it, I’d have one on the department,” Marcoux said in reference to the Lamoille County Sheriffs. “The issue with those people is that they can’t work 24/7, and usually if you need one, that person has to come out on overtime or you need to get a trooper from another region.”

The Morrisville Police Department currently employs one DRE.

Marcoux went on to discuss the potential issue of drug detection K9s. His concern was that a K9 trained to detect marijuana wouldn’t know the difference between a legal ounce of marijuana or an illegal pound.

Currently, there are 21 K9s in use by the VSP, with four more teams in training that will be certified in narcotics by May. Fifteen of the initial 21 are certified in patrol and narcotics, but only five of those are trained to detect marijuana. These numbers do not include K9s used by sheriff’s departments or municipalities, but according to Lieutenant Kirk Cooper, who heads up the VSP’s K9 program, all agencies’ K9s must be certified through the Vermont Criminal Justice Training Council at the Vermont Police Academy.

The VSP stopped training narcotics K9s to detect the smell of marijuana a little over two years ago. Even the K9s that are still trained to detect marijuana can be used in other ways around the state. One such way is in correctional facilities where marijuana and other “contraband” is still prohibited.

“The narcotics dogs are dual purpose dogs,” Cooper said. “That means they are trained in apprehension and tracking, in addition to their narcotics detection capabilities.”

Three of the five dogs trained to detect marijuana will be considered for retirement in the next 12-18 months. Cooper stressed that this is not because of their training, but in fact because the dogs are more than 8 years old. The VSP use German Shepherds, Dutch Shepherds and Belgian Malinois.

Beyond the problems inherent in legalization, there are the issues that lie behind it, mainly bias in policing. H.511 cites multiple studies that serve to illuminate the issue of racial disparities in Vermont policing.

Specifically, the bill highlights a statistic saying that persons of color in Vermont are more than four times more likely to be cited or arrested for marijuana possession than whites, which is almost an entire percentage point above the national average. Vermont ranks third in the nation for racial disparity in drug arrests, even though the usage rates are virtually identical.

These numbers are despite tremendous efforts put forth in police training protocols, led in large part by the director of Fair and Impartial Policing, Lieutenant Garry Scott.

“We have had implicit bias training throughout our entire process,” Lt. Scott said. “When a person takes the exam and comes in for an oral board [interview], before they sit down . . . they’re asked what they will bring by way of diversity to the state police and they’re given scenario-based questions on implicit bias, whether it’s dealing with people of color or maybe the LGBT community.”

Lt. Scott outlined the extensive training VSP recruits undergo before they’re certified and allowed to enforce the law. Initially, recruits go through “Pre-Basic,” which is a military-style boot camp, part of which is a two-hour introductory seminar on implicit bias done by community member Etan Nasreddin-Longo.

Recruits then move on to the Vermont Police Academy, followed by a seven-week post-basic training. During this time, recruits are put through a multitude of scenarios dealing with implicit and explicit bias. This training includes the Harvard Implicit Association Test, which “measures attitudes and beliefs that people may be unwilling or unable to report.” The test is designed to show those taking it if they have an implicit attitude that they didn’t realize.

The test results were discussed with Vermont Partnership for Fairness and Diversity Executive Director Curtiss Reed Jr. following a full day screening and discussion of the Netflix documentary “13th.”

“13th” is an in-depth look at the United States’ history of racial inequality, focusing on the modern for-profit prison systems done by filmmaker Ava DuVernay.

With all this bias-based training, it’s curious then that Vermont should perform so poorly in regards to race and policing.

One explanation Lt. Scott offered was discrepancies in the data collection, an issue he says is also being addressed in the training process. The Fair and Impartial Policing Committee started collecting data in 2009, and the data used in the studies referenced in H.511 is the equivalent data set from 2010-2015.

He explained that in their system for collecting data, a traffic stop where the operator was issued a ticket for speeding and also consented to a search that yielded marijuana from one of the passengers would come up as a “negative find” on the stop despite there being marijuana found. Conversely, if a stop was made where the operator was issued a ticket for speeding as well as a ticket for marijuana possession, that would be entered into the system twice, effectively doubling the race data logged in the data set.

“We learned a lot from that because we hadn’t trained our members properly up front on how to really capture some of that data,” Lt. Scott said. “Unfortunately, when all that data was released, that was the message that was picked up by the media and not really relayed properly to the public.”

At this point, only time will tell what kind of impact H.511 will have on the issues it faces in Vermont and the issues it aims to tackle, but in the meantime decisions will have to be made based on information gathered in the wake of other states’ legalization.