Canada: Drug-impaired driving law 'cumbersome'

[CLICKHEREx]

http://www.thestarphoenix.com/news/Drug+impaired+driving+cumbersome/9987923/story.html


By Douglas Quan, Postmedia News

June 30, 2014


Six years after federal law changes gave police new powers to compel suspected drug-impaired drivers to take roadside sobriety tests, watchdogs say the system has been ineffective, resulting in few charges.

But there is no consensus as to what should be done about it.

A B.C. technology company is producing what it says will be the first commercial marijuana-detecting breathalyzer, but a prototype is still a few months away from release and needs further testing.

The advocacy group MADD Canada recently went to Parliament Hill to push the idea of random roadside saliva testing - a system already in use in Australia and Europe but is likely to draw concerns about civil liberties here.

And unlike the 0.08 per cent blood alcohol concentration threshold, there's no scientific consensus about how much consumption of certain drugs will cause impairment, further complicating matters.

"We're moving forward. We're not quite there yet," said Doug Beirness, an impaired-driving research consultant in Ontario.

The current challenges aren't a complete surprise, Beirness said. Just look at the introduction in 1969 of the national breathalyzer law to combat drunk drivers. It was fraught with growing pains and lawyers are still arguing the reliability of the devices today.

"Any piece of technology will be challenged. And it will be challenged almost continuously."

Under 2008 Criminal Code amendments, an officer who suspects a driver may be impaired by drugs can demand the driver take part in a physical co-ordination test, known as a Standardized Field Sobriety Test.

If the driver fails that test, the officer can compel the driver to go to the police station for a lengthier evaluation by a certified drug-recognition expert.

If, at the end of that evaluation, the expert believes the driver is impaired by a particular drug, the expert can order the driver to submit a blood, urine or saliva sample to confirm the presence of that drug.

"Unfortunately, the new drug-impaired driving law has proven to be very costly, time-consuming, and cumbersome to enforce and prosecute," says an article published this month in the journal Traffic Injury Prevention and written by Western University law professors Robert Solomon and Erika Chamberlain.

The article said only 1,126 drug-impaired driving charges were laid in Canada in 2012, which is less than two per cent of the total impaired driving charges that year.

Further, the article said, "Canadian courts remain skeptical about the link between the presence of drugs in a driver's system and the actual impairment of his or her driving ability."

Enter the Cannabix Breathalyzer, a hand-held device for detecting marijuana being developed by B.C. technology company West Point Resources, which went public last Thursday.

Company officials say their device will be able to tell within minutes whether a person has consumed marijuana within the past two or three hours and can help bolster the observations of officers in the field.

"The likelihood of conviction goes up a lot more," said company president Kal Malhi, a retired B.C. RCMP officer who spent four years working in the drug section.

Plus, he said blowing into a device is not as invasive a test as saliva or urine samples.

But the device is only in the prototype stage and needs to go undergo scientific review. Some observers are skeptical.

"With all work that was done in Western Europe and Australia, if there was a reliable breath test for cannabis, I would've thought it would've (already) been pursued in the EU," said Solomon, who is also legal adviser to MADD Canada.

Convinced the current system for detecting drugged drivers is "not working," the advocacy group is appealing to federal lawmakers to adopt a system similar to what's been in place for years in Australia and parts of Europe - the random roadside screening of drivers for certain illicit drugs using saliva swabs.

"If the evidence out there is overwhelming and good we should adopt it, rather than reinvent the wheel," Solomon said.

Such a tactic is an effective deterrent, Solomon added, because it sends a message you can be "tested anytime, anywhere."

But random testing will surely run into civil liberties challenges, experts say. Canada has never allowed random alcohol breathalyzer testing.

"If you can't test randomly for alcohol, there's no way on earth you going to test randomly for drugs," Beirness said.

The debate doesn't end with what detection tools or methods work best. There's also no consensus over how much of a certain drug one has to consume before they become impaired.

Some have said five nanograms per millilitre of blood should be the limit for cannabis, while others have said it should be 10.

"The jury is still out," Beirness said.

At least a dozen U.S. states have opted for a strict zerotolerance policy where the detection of any amount of drug in one's system could lead to criminal sanction.

But critics have said such an approach could lead to a perception the policy is less about traffic safety and more about going after drug users.

The Canadian Society of Forensic Science's drugs and driving committee has received funding from the RCMP and the Ontario transportation ministry to assess the reliability of saliva-based roadside drug testing and investigate the establishment of limits for drugs.

Until they come out with their findings, young people will continue to believe that it's better to smoke a couple joints and drive than have a couple beers because they're less likely to get caught, Solomon said.

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There's also no consensus over how much of a certain drug one has to consume before they become impaired.

Some have said five nanograms per millilitre of blood should be the limit for cannabis, while others have said it should be 10. -

Our current law, at least in S.A., and probably other states, assuming impairment from a positive saliva swab is manifestly unjust, because a person may not have ingested cannabis on that day, and possibly 24 hrs or more previously, and have been totally unimpaired at the time of testing.

Reform is urgently needed, so that positive tests may still assume impairment, and prevent further driving at the time, until blood test results proving a blood content of five nanograms per millilitre of blood, or more, are available. Also, a standard field sobriety test should be applied, for those testing positive, as an indicator to the courts of the severity of the level of impairment, if any.

Edited July 1, 2014 by CLICKHEREx