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.

The announcement by the Federal Government that they intend to take cannabis off its schedule 1 classification seems logical. Considering that cannabis legalization has found its way to the desk of many governors, it was only a matter of time until marijuana, that has long shared the same classification as heroin and LSD, be classified as less serious, although still federally illegal.

Vermont passed a legalization law in 2022, becoming the 11th state to do so. Cannabis retail stores have been popping up all over the State ever since, allowing anyone over the age of 21 the ability to purchase a multitude of cannabis based products. Despite the ease of posession, the concern for the impairing effect that marijuana can have on operators of motor vehicles, continues to be a significant concern for law enforcement.

Driving While High Is as Illegal as Driving While Drunk

The DUI statute for driving while under the influence of marijuana carries the same maximum penalty ( 2 years in jail) as the DUI-alcohol statute. For a law enforcement officer to charge someone with a weed DUI, they must show that the operator was “under the influence to the slightest degree”. Any level of impairment is sufficient to meet the statutory requirements and subject the driver to a mandatory 90-day license suspension and a criminal conviction on your record.

How Does Law Enforcement Prove Impairment?

There is no per-se limit on cannabis DUIs. This differs from the .08 limit in alcohol DUIs. In response, marijuana DUI investigation focuses more on an officer’s observations and specialized training in determining impairment. Although the classic Cheech and Chong scene, where the officer approaches the two stoners who are lost in their van in a giant plume of smoke, such apparent evidence of consumption is not needed for an officer to reach an arrest decision.

Request or Demand for Blood.

An officer can also request that a suspect submit to a blood test in order to determine the presence of cannabis in their system. The Implied Consent laws for refusing to submit to a blood test are the same as an alcohol test refusal (six-month suspension for a first offense, with elevated penalties for subsequent offenses).

Depending on the circumstances of the arrest, an officer may also be able to apply for a search warrant from a judge if suspect consent is not obtained. This process is often initiated in cases where a serious injury or death has occurred, or if the suspect has prior DUI (alcohol or cannabis) convictions.

Just Because You Can Doesn’t Mean You Should

Despite cannabis being available for legal purchase throughout many Vermont towns, this permitted consumption does not extend to the road. So when you purchase that pack of joints from your neighborhood weed dealer keep in mind, that when it comes to driving while impaired, Vermont law enforcement will not look the other way just because you chose weed over booze.

The foregoing content is for informational purposes only and should not be considered legal advice. Readers with specific legal questions should consult with their private attorney.

The Massachusetts Supreme Court decision in COMMONWEALTH V. GERHARD has now limited police officer’s ability to use the standardized field sobriety tests as evidence of drug impairment, tests which have long been validated to detect alcohol impairment.

“The research on the efficacy of FSTs to measure marijuana impairment has produced highly disparate results. Some studies have shown no correlation between inadequate performance on FSTs and the consumption of marijuana; other studies have shown some correlation with certain FSTs, but not with others; and yet other studies have shown a correlation with all of the most frequently used FSTs.”

As has been litigated in Vermont Courts (and recently won by Attorney Evan Chadwick in a drugged driving case), a law enforcement officer who is not a certified Drug Recognition Expert should not be able to  testify as to their opinion of impairment when investigating an individual for DUI-Drugs .  The Gearhardt decision adds an extra layer of protection for these types of investigations by limiting what evidence can be presented on the roadside investigation.

Further clarification as to the sniff test may be supported by recent decisions in Massachusetts and Colorado, that have found that the oder of marijuana alone does not give an officer probable cause.  The Massachusetts case is especially important to Vermont as at the time of the decision, possession of one ounce or less of marijuana was considered a civil infraction in Massachusetts as it is considered in Vermont.  “[W]e no longer consider the “strong” or “very strong” smell of unburnt marijuana to provide probable cause to believe that a criminal amount of the drug is present.  Commonwealth v. Rodriguez.

The wild card in the entire calculus is the fact that it is all but assured that Vermont will legalize recreational marijuana use in the near future.  In 2017, a legalization bill made it all the way to Governor Phil Scott’s desk before he vetoed it, stating that further study was needed before he signed the bill into law.  Thus, if legalization does occur, the Vermont courts may look more towards the recent decisions in Colorado to guide them in reviewing the smell test as a sole basis for a search.  “Because Amendment 64 legalized possession for personal use of one ounce or less of marijuana by persons 21 years of age or older in Colorado, it is no longer accurate to say, at least as a matter of state law, that an alert by a dog which can detect marijuana — but not specific amounts — can reveal only the presence of ‘contraband,’”.  Colorado v. McKnight

If Vermont does pass a marijuana legalization bill, expect further challenges to law enforcement’s ability to decipher criminal behavior from that of legal, including, but not limited to their ability to tell the difference between a legal amount of marijuana and that which surpasses the criminal threshold.

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 3^rd 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.

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.