DRE program not ‘silver bullet’ for VT marijuana impaired driver testing

By Guy Page

Since his veto of marijuana legislation earlier this year, Gov. Phil Scott has repeatedly maintained that in order for him to sign a marijuana legalization bill into law, measures to ensure highway safety are required, including a reliable test for driving while marijuana-impaired.

It is generally accepted that drug recognition evaluation is the most reliable way to determine marijuana intoxication. In a series of phone discussions this fall, I interviewed DRE expert Sgt. James Roy of the Colchester Police Department about aspects of the Vermont Drug Recognition Expert (DRE) program, in particular:

· Vermont court admissibility of DRE testimony, including potential challenges to securing convictions;

· History of DRE-based DUI convictions;

· Vermont court preparedness to handle DRE testimony

Due to my respect for him and his expert stature in the field, I asked Sgt. Roy to “vet” all information below for accuracy. He has done so, and I am grateful for his cooperation.

Sergeant Roy became one of Vermont’s first Drug Recognition Experts (DRE) in 2005, according to the Governor’s Highway Safety Program website. He was active in developing Vermont’s program and became Vermont’s first DRE Instructor in 2010. Sergeant Roy has been critical in developing new DRE’s as a lead instructor and course manager in Vermont’s four schools since 2011. He has also taught several schools outside of Vermont and continues to provide training in other impaired driving programs. Sergeant Roy has also been a member of the national impaired driving curriculum development team. GHSP stated in an awards presentation earlier this year: “Sergeant Roy has been an enormous asset to Vermont’s DRE and impaired driving programs and the state is better prepared for the challenges we face in this area thanks to his selfless contributions.”

Admissibility of DRE testimony in Vermont courts — in the 2014 case of State of VT vs. Gingras, VT Superior Court (Windsor County) Judge Samuel Hoar Jr. in a 25 page ruling said DRE evidence is admissible in a DUI case, under two conditions: 1) the officer is DRE trained, and 2) the evaluation is performed thoroughly and correctly. Other states generally support DRE admissibility.

Condition #1 — “the officer is DRE trained.” At present there are 53 trained DRE law enforcement officers in Vermont. Their number is up from 38 just two months ago, when 15 were added on November 6. DREs performed 251 evaluations in 2016. Roy said having too few DREs can create an availability problem, while too many can lead to “rusty” skills if some DREs perform just one or two evaluations a year, as has happened in other DRE-heavy states. The head of the state highway safety program is unsure how well the workload will balance out in 2018, WCAX reported on November 6:

“There have been some calls throughout the state that we have not been able to provide this expertise to some law enforcement agencies in the state, and we want to make sure that we can get to every case,” Lt. [John] Flannigan said. Flannigan they are going to re-evaluate next year to see if they need to add more experts. He says the information gathered will be used by the Governor’s Task Force’s study on the legalization of marijuana.

Condition #2 — “Evaluation performed thoroughly and correctly.” An evaluation almost always takes place indoors, away from the roadside, and typically lasts about an hour. A thorough evaluation requires personal observation of speech, gait, eyes, skin pallor, etc.; testing vital signs such as blood pressure and pulse; and face-to-face interview. The more thorough the evaluation, the more weighted and persuasive the evidence. There is no hard-and-fast “complete at least 80%” rule; rather, it is “more is better” and the court must decide how much is “enough” on an individual basis: did the DRE gather enough information to develop an informed opinion?

Police may not compel suspect participation in an evaluation. The suspect may refuse to take off sunglasses, submit to a pulse or blood pressure test, and answer questions. Sgt. Roy concedes the potential problem: participation is crucial to completion of the evaluation, yet suspects may not participate.

“The more that the evaluation can be satisfactorily and thoroughly completed, the better the standing of the DRE evidence in court,” Sgt. Roy said. “Conducting an evaluation involves in some part the participation of the individual.”

He notes he has only had a few refusals in his 12 years as a DRE. On the contrary, many suspects participate in an effort to prove their innocence. Yet non-participation could become a favored defense strategy of choice among drug-impaired drivers and their lawyers, Sgt. Roy said.

There are no other reliable forms of testing for driving under influence of marijuana. A saliva test is an option but has its limitations, Sgt. Roy said.

History of DRE-based DUI convictions. To date, there have been no convictions by a Vermont judge or jury in a contested DUI case, based on DRE evidence, Sgt. Roy said. (His informed opinion was supported when I asked the same question of a judge, a criminal lawyer, and a former prosecutor.) There have “guilty” plea agreements, based on DRE testimony. However, no judge or jury has yet to hear DRE testimony during a criminal trial and use it to convict someone claiming innocence.

Preparedness of Vermont courts to handle DRE testimony. In recent years, Vermont has made considerable progress in court officer familiarity with DREs. Yet there is still work to be done in developing statewide judicial and state’s attorney personnel understanding about how the evaluation works and how evidence may be used in court. It’s a hurdle that more time and training will overcome, Sgt. Roy said.

Addendum: this morning, Vermont State’s Attorneys Association Executive Director John Campbell told me that while DRE training among prosecutors is ongoing, the pace of this training (some of it taking place out-of-state) is necessarily limited by their other demanding duties. And, looming funding cuts could reduce the prosecutor workforce, he said.

The author is the former editor/publisher of the Colchester Chronicle, and is (among other government affairs positions) advocacy director for Physicians, Families & Friends for a Better Vermont, an organization opposed to marijuana legalization in Vermont.