Historically, it has been difficult for the crown to prove that a person’s ability to operate a motor vehicle was impaired by a drug under section 253(1)(a) of the Criminal Code. However, the enactment of Bill C-2 on July 2, 2008 was partly designed to crack down on impaired driving when the person’s ability to operate a motor vehicle is being impaired by a drug. It is too early to tell if the new laws relating to operating while impaired by a drug will be effective or how the various challenges to the new legislation will play out in court.
Among the changes brought about by Bill C-2 were provisions for mandatory physical tests and drug evaluation officers and evaluation tests. New section 254.1 of the Criminal Code provides for regulations prescribing the qualifications and training of drug evaluation officers, the physical co-ordination tests and the drug evaluation tests which are to be implemented.
New section 245(3.1) authorizes a peace officer in certain situations to demand that a person submit to an evaluation by an evaluating officer to determine whether the person’s ability to operate a motor vehicle is impaired by a drug or a combination of alcohol and a drug.
The Regulations under these sections have now been declared and they set out the qualifications required for an evaluating officer and the physical co-ordination tests (horizontal gaze nystagmus tests, walk and turn test and the one leg stand test) which are to be applied under section 254(2)(a).
|Michael Kruse is a leading Ontario DWI attorney with over 20 years of trial experience practicing in the areas of impaired driving and criminal law.|
There are also evaluation tests and procedures under section 254(3.1) including a preliminary examination (measuring pulse and pupil eye tracking), eye examination (horizontal and vertical gaze nystagmus test, lack of convergence test), various divided attention tests (Romberg balance test, walk and turn test , one leg stand test and finger to nose test), an examination (blood pressure, temperature and pulse), examination of pupil sizes, an examination (checking muscle tone and pulse), and a visual exam (arms, neck and legs for evidence of injection.)
It is stating the obvious to say that these tests are open to subjective interpretation and inherent bias. It remains to be seen how the new Bill C2 crackdown on drivers who are impaired by drugs will play out in court. However, there is no doubt that these DWI, DUI and OVI charges and the new drug evaluation laws will be vigorously challenged in court by the Ontario OVI lawyers at Kruse Law Firm.