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Enforcing new cannabis driving laws will be challenging

After October 17, cannabis possession and use in limited forms will become legal. The federal government has established limits on the amount of cannabis an individual can use before being considered impaired. Police forces are still figuring out how to test cannabis users for impairment.

The federal government bases its limits on the amount of THC in an individual’s bloodstream. THC is the active ingredient that gets a person high and causes impairment. There are two new criminal offences:

  • A driver with between 2 and 5 nanograms (ng) of THC in their blood can be fined up to $1000. This is a lower-level offence.
  • A driver with over 5 ng of THC in their blood with faces penalties that increase with each repeated offence, starting with a $1000 fine and escalating to prison terms

Police forces face a difficult problem. Do tests exist to determine an individual’s THC level that courts will accept?

THC Impairment Testing: The Standard Field Sobriety Test

British Columbia police forces and the RCMP continue to use the Standard Field Sobriety Test (SFST) to determine if a driver is impaired. The SFST consists of several different tests to see if a driver can perform the mental and physical tasks necessary to safely operate a motor vehicle. These include:

  • The Horizontal Gaze Nystagmus Test. A driver must follow 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 Delta, B.C. Police Force tested two users, C and M, for a television news report about police drug impairment testing. Both medical marijuana users agreed to be tested an hour after consuming cannabis. Both did poorly on the Walk-and-Turn Test. The police believed that neither person should operate a motor vehicle.

THC Impairment Testing: The Drager 5000 Saliva Testing Device

Police may also employ a new device the federal government recently approved to test for THC impairment.

The test works by taking a swab of an individual’s saliva, then inserting it into the device. It can take up to four minutes to get enough saliva for the test. Test results are mixed at best.

Problems with the Drager 5000

False positives. Ten to 15 per cent of Drager 5000 tests returned ‘false positives’ in European jurisdictions, but Australian police reported that 33 per cent of tests could be ‘false positives’. This means the person tested is considered impaired although they actually are not.

Sluggish performance. The device is also very slow to analyze swabs. Roadside tests take up to 24 minutes to complete, because:

  • The manufacturer recommends that 10 minutes must pass after the individual consumes cannabis before a test.
  • In tests, the Drager 5000 takes 10 minutes to complete a saliva analysis.
  • It takes one to four minutes to get saliva on the swab.

Cold weather. The Drager 5000 doesn’t like the cold. Its operating range lies between 4 C and 40 C. The manufacturer says that it works properly if it is kept inside the warm police car.

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

How the police will test for cannabis impairment

Vancouver 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. It will not buy the Drager 5000.

Penalties if you are found to be drug-impaired

Police can issue Immediate Roadside Prohibitions to drivers, seizing their licences, prohibiting them from driving for a time, or impounding vehicles. They can also pursue criminal charges against the driver. The Ministry of Public Safety says a new 90-day Administrative Driving Prohibition for drug-impaired drivers is not ready yet.

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 experienced criminal defence counsel after the incident to discuss your individual situation and what options you may have.

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