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Testing for drug impairment under the Cannabis Act

Guelph and Ontario police forces face the challenge of testing drivers for drug impairment now that cannabis use has been legalized. Driving while impaired is illegal in Canada. How will police forces test drivers in ways that will be recognized as proof of impairment in court?

The federal governments drug impairment limits

Under the Cannabis Act, the federal government has used the amount of THC (the active ingredient in cannabis that causes impairment) in an individual’s bloodstream to create two new criminal offences:

  • Two to five nanograms (ng). A person with this level of marijuana in their blood is subject to a lower-level offence. The penalty can be a fine as high as $1000.
  • Five ng and above. An offender faces penalties that increase each time the offence is repeated. They start with a minimum $1000 fine and escalate to prison sentences.

The existing drug-impairment test

Guelph police use the Standard Field Sobriety Test (SFST) to test if an individual’s faculties are impaired by cannabis use to the point where they cannot safely operate a motor vehicle. The SFST includes:

  • The Horizontal Gaze Nystagmus Test. A driver follows a moving object with their eyes. If the eyes move jerkily, the driver is considered impaired.
  • The Walk-and-Turn Test. The driver must walk heel-to-toe in a straight line.
  • The One Leg Stand Test. The driver must stand on one leg.

The proposed drug-impairment test: The Drager 5000 Saliva Testing Device

The federal government has approved a roadside testing device for police use. It works by:

  • Taking a sample of an individual’s saliva. The person wipes a small plastic tube around their mouth until an indicator turns blue, showing that bit has collected enough saliva for the test
  • Inserting the tube into the Drager 5000
  • Seeing the result after 4 to 5 minutes. If a line appears on the device, the person has no drug in their bloodstream.

Problems in tests of the Drager 5000

The Drager 5000 has performed inconsistently in test projects. In Canada, there are several issues:

Cold weather. The Drager 5000’s operating range lies between 4 C and 40 C. The manufacturer says it works properly inside the warm police car. In tests in Norway, Saskatchewan and the Northwest Territories, the Drager 5000 did not always work well in the cold.

False positives. The Drager 5000 returned several ‘false positive’ and ‘false negative’ results in the test projects. This means that some drivers were considered impaired when they were not, and other drivers were impaired but the Drager 5000’s test did not show that.

Slow operation. Roadside tests using the Drager 5000 take up to 24 minutes to run. This happens because:

  • The manufacturer recommends individuals wait 10 minutes after using cannabis before giving a sample
  • It takes one to four minutes to get a sample
  • The Drager 5000 usually takes 10 minutes to produce results.

Defence lawyers will challenge the Drager 5000’s results in court because of the false results, inordinate time, and cold weather issues.

How the police will test for cannabis impairment

Guelph police will use the Standard Field Sobriety Test. The force is training more officers to use SFSTs and hopes to train more drug recognition experts. The OPP is considering if it should buy the Drager 5000 or wait for better testing devices to be developed.

Penalties if you are found to be drug-impaired

If you fail an SFST, you face these penalties:

  • First offence: a 3-day licence suspension and a $250 penalty (this begins in January 2019)
  • Second offence within 5 years: a 7-day licence suspension and a $350 penalty (this begins in January 2019)
  • Third and subsequent offences within 5 years: a 30-day licence suspension and a $450 penalty (this begins in January 2019)

There are additional possible penalties for second, third and subsequent offences. Drivers must pay a $198 fee to reinstate their licence.

Seeking legal assistance

Searches and procedures under the new Cannabis Act may violate your legal rights. Co-operate if police stop and test you for drug impairment. Then contact an experienced criminal defence lawyer immediately to discuss your individual situation and what options you may have.

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Guelph, ON N1H 2S9

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