Senate Bill S.214

The General Assembly’s consideration of whether to regulate and legalize marijuana started in the Senate. After considering the issue for a year, the Senate passed S.241, a bill that would have created a detailed regulatory system for licensed cultivation, retail, and testing establishments. It would also have legalized the possession of up to an ounce of marijuana and the sale of up to a half-ounce for residents (a quarter-ounce for nonresidents). Legalization would have begun in January 2018 and would have been restricted to individuals 21 or older.

Under the Senate bill, the Department of Health would have promulgated rules addressing a myriad of details, including the creation of a marijuana education and abuse prevention program, the establishment and operation of marijuana dispensaries, and marijuana advertising. The Agency of Agriculture, Food and Markets would have been tasked with adopting rules on cultivation and testing. The bill would also have established a commission to review and recommend action on such matters as the sale of edibles and allowing home-grown marijuana. It would have raised funds through license fees and a 25% tax on the sale of marijuana; changed current laws on medical marijuana; invested in highway safety, including increasing the number of Drug Recognition Experts (DREs); and created a committee to study the use of marijuana in the workplace.

House Attempts to Amend the Senate Proposal

The House Judiciary Committee took testimony for nearly four weeks then passed out a significantly scaled-back bill that did not legalize activities related to marijuana. Rather, the amendment addressed concerns related to marijuana use in Vermont and laid the groundwork for eventual marijuana legalization. Next, the Ways and Means Committee considered the Judiciary Committee’s bill and offered a further amendment that would legalize the possession of an ounce of marijuana and up to two marijuana plants. As the Senate bill and these amendments lay dormant at their next stop, the House Appropriations Committee, the Senate attached the language of S.241 to an unrelated bill, H.858, that it sent to the House.

House Rejection of Senate Version

Late in the session, the Senate version of marijuana legalization had its day on the House Floor when H.858 was considered. The House rejected the Senate version on a 121 to 28 vote. The vote in part reflected the sentiment held by many representatives that there had not been sufficient time for the House to vet the complicated issues involved in the initiative. Nor had enough time passed to understand the costs and benefits of marijuana legalization in states that have recently legalized marijuana. In addition, a number of representatives were concerned about creating a commercial market for legal marijuana, particularly if Vermont were the only state to do so within a day’s drive of some 40 million people. The Senate approach also frustrated those who wanted to see the legalization of home-grown marijuana.

House Rejection of Decriminalization of Possession of Two Plants

After overwhelmingly rejecting the Senate proposal, the House considered an amendment that would have decriminalized the possession of up to two marijuana plants. (Decriminalization is not the same as full legalization. If possession were decriminalized, it would not be a crime, but the possessor would still be subject to a civil penalty.) The amendment sought to address the current inconsistency in Vermont law whereby individuals who possess up to one ounce of marijuana are subject to a civil fine (such possession is currently decriminalized), but in order to obtain that ounce of marijuana they must engage in a criminal transaction. The House defeated this amendment on a 70 to 77 vote.

House Passage of Amendment Addressing Education and Highway Safety and Creating Marijuana Advisory Commission

The House did pass another amendment, however. This amendment recognized that Vermont is not addressing problems caused by current use of marijuana in the state, primarily health risks to youth from use of marijuana and highway safety. In addition, it recognized that marijuana legalization in Vermont and neighboring states is likely inevitable, and our state needs to prepare for that eventuality.

First, although youth usage of marijuana has remained steady, fewer young people believe that regular use of marijuana causes them harm. In fact, youth use of marijuana does raise a serious risk of harm. The medical community has articulated the deleterious effects of regular marijuana use on the developing brain. Addiction specialists have explained how youth are particularly prone to develop addictions if they start using marijuana in their teens. To address this issue, the House amendment would have directed the Department of Health, in collaboration with the Department of Public Safety, the Agency of Education, and the Governor’s Highway Safety Program, to develop and administer an education and prevention program focused on the use of marijuana by those under 25 years of age.

A second concern relates to the safety of our roads. Vermont lacks the infrastructure to mitigate highway safety risks from those driving under the influence of marijuana, which is particularly dangerous when combined with alcohol consumption. Although the number of crashes involving fatalities or serious bodily injury has gone down overall in Vermont, the number where a driver had THC (the psychoactive ingredient in marijuana) in his or her blood has been going up. Law enforcement does not have the tools or resources at present to address this growing problem.

The House amendment would have directed the Secretary of Transportation and the Commissioner of Public Safety to work collaboratively to ensure that funding is available for two programs that would assist enforcement of impaired driving laws statewide. In one program, law enforcement officers would receive training in the Advanced Roadside Impaired Driving Enforcement (ARIDE) program. In the ARIDE program, officers learn how to observe, identify and articulate the signs of impairment related to drugs, alcohol or a combination of both. The other program would involve training additional Drug Recognition Experts (DRE). DREs are officers who receive more intensive training on recognizing impairment in drivers under the influence of drugs. The funding for both of these programs would be obtained through existing grants from the National Highway Traffic Safety Administration, as administered by the Governor’s Highway Safety Program. A separate transportation bill would have established a new impaired driving violation to account for the heightened traffic safety risk from poly-substance use – the combined consumption of alcohol and marijuana. It would also have allowed the use of road-side and evidentiary saliva tests to detect the existence of THC in a person’s blood.

Third, the House also recognized that a neighboring state will likely legalize marijuana in the near future and that Vermont will eventually also end marijuana prohibition. Thus, the amendment would have established a Marijuana Advisory Commission to guide the administration and the General Assembly. The Commission would advise on issues relating to the national trend toward reclassifying marijuana at the state level and the possible emergence of a regulated adult-use commercial market for marijuana within Vermont. In addition, a Workforce Study Committee would have been created to examine the potential impacts of alcohol and drug use in the workplace.

Senate Rejection of House Actions

The Senate did not pass the House amendment described above. It failed to support the provisions on youth education and highway safety and the establishment of the advisory commission. Nor did it agree with the House’s provision in the transportation bill that would have created a poly-substance impaired driving violation and would have permitted the use of saliva tests to detect THC.

Conclusion

No law addressing recreational marijuana made it out of the legislature this year, despite the fact that many representatives in the House were sympathetic to the arguments in favor of legalizing or decriminalizing possession. Proponents of marijuana legalization have argued that prohibition and the war on drugs have failed. Marijuana is already widely used by Vermonters, and in order to obtain marijuana, users must confront the dangers associated with the black market, including product with pesticides or other additives and exposure to dealers selling other more harmful drugs. Proponents assert that individuals should have the same right to moderate use of marijuana that they do for alcohol without being subject to criminal penalties so long as they are not causing others harm. But the House majority was not yet ready to legalize or decriminalize. Nevertheless, many in the House recognize that legalization is likely going to occur more broadly in the region, and potentially in Vermont in the future. The work done by the House in examining the issues will help the State to prepare for that eventuality.