How Do Police Test For Cannabis Impairment?

Welcome back to our YouTube channel, and thanks so much for joining me today. I have an interesting topic for you. Well, first of all, under our criminal law, as you know, you can be charged with impaired driving by alcohol or impaired driving by drug or a combination of the two and/or alcohol. And today I want to ask the question, Well, what about cannabis impaired driving? How do the police test for that? And that’s the serious problem in Canada, cannabis driving, and they’re starting to crack down on this more and more. So here’s how it goes about. Let me give you some hypothetical situations. So let’s say the police. See you weaving on the roadway, and they pull you over, and low and behold, there’s odor of alcohol on your breath or anything, but you’re acting a little quiet and what not. And maybe they suspect you’re under the influence of drugs. So what they can do is they can demand that you do standardized field sobriety tests, which is a walk and turn test, a one leg stand for balance, and what’s called a horizontal gaze nystagmus test where you follow a pen or your finger and it’s shown that for marijuana impairment, your eyes will flicker. It’s like a gaze nystagmus. You know, it’s not smoothly tracking it. So if you failed that test that gives them the grounds to bring you back to the police station.  They’ll make what’s called a drug recognition evaluation demand, where you have to submit to this 12 step process, which I’ll talk about a little bit later on. It’s a very involved, it’s an expert, trained police officer who is going to determine whether you are impaired by any form of drug, let alone marijuana. 

Now, another thing they can do which they aren’t doing much in Canada now, which I haven’t seen many of these. They brought in this legislation back in, I think, 2018 for saliva test at the roadway. So they give you saliva test which detects drug level, like THC. And that particular saliva test is a screening test. If you fail it, it gives them the grounds to again, do the drug recognition evaluation. Then they’ll bring you back to the police station, make that demand, and then go through this evolved 12 step process to determine if you’re impaired by any particular drug, including marijuana, that’s with a trained evaluator who’s very trained in this area, a police officer. 

Now, as well, in Canada, they can demand a blood sample back at the police station. And there’s what’s called per se cannabis limits now in Canada, I won’t get into it, but there’s, it’s leveled in nanograms, and there’s different fine levels criminal charges. So if you if your blood test comes back showing a certain level of nanograms, you can get different charges and wind up with, you know, serious criminal record on that. 

So the 12 step DRE that’s what they call it, drug recognition evaluation. That’s this very involved process, and I always have trouble remembering all the steps. Well, I’m just going to take a look at my notes on that and I’ll review them with you a little bit. 

So first of all, they’re going to have a breathalyzer test, actually an Intoxilyzer test to rule out alcohol impairment. They’re going to do an interview with the arresting officer. The drug recognition officer’s going to get the objective grounds. They’re going to have a preliminary examination. They’re going to check your pulse rate, your coordination and your eye signs.  They’re going to do tracking of your eyes. They’re going to do those balance tests again. The walking and divided attention test and see what your balance is like. By the way, those tests are hard sober. In particular an older guy like me. I have a hard time doing those tests whether I’ve had zero drinks or 1 drink.  I don’t know how much credence I put in those tests, because they’re not easy to do. Vital signs. They check your blood pressure, pulse, body temperature, muscle tone, whether you have any injection sites. They’re going to look at you very carefully. 

They’re going to ask for an interview. You have a right to remain silent I mean, you shouldn’t answer those questions. Then this trained evaluator is going to form an opinion about what type of drug, if any, you’re impaired by. That may be marijuana, it may be other types of drugs. They’re trained in this sort of thing. And they can also do a blood test if they want. But oftentimes they’re not doing blood tests. They’re just doing a urinalysis. Urinalysis is very under satisfactory for court, because all it confirms is that, for example, you had traces of marijuana or cocaine in blood. Now, you could have had that marijuana days before, or the cocaine days before, so that all that does is kind of possibly somewhat confirm the evaluator’s opinion. The more the better, faster, the better, faster, the more conclusive test is a blood test. So if you do a blood test and it shows you’ve got things in your blood stream well you could be cooked unless there’s a Charter argument but I can tell you this, the DRE it’s very unsatisfactory. There’s been a lot of different rulings on it. It’s a bit, I hate to say. I find it a bit junk science, frankly, doing these somebody standing on one leg who is 60 years old who can’t stand on a good day as a nerve wracking situation. There’s competing arguments of how accepted it is. Our course in Canada accept it, but there is room to win these type of cases. Our office and myself have more many of these type of cases, we often hire our own expert to challenge the evidence as well because it’s nice to have our own expert there to say, look, this evaluator didn’t do ABCD appropriately and their final conclusion report, which is Step 12, whether there’s impairment or not is not valid. So I’m not saying those cases are easier to win, but they are, many of them are flawed with difficulties and holes, and if you know what you’re doing during cross examination and know what you’re looking for, and you know, we obviously do this regularly, in conjunction with our experts, you can often win these types of cases.  So there you have it. The bottom line in a nutshell is there’s a screening test at the roadside, Saliva test which they’re not doing much these days for not only marijuana but other drug testing. There’s a screening test involving balance and following your eyes. If they get grounds to bring you back to the station, they can do that for a full drug recognition evaluation. And of course, they can take blood and urine samples as well. And as I mentioned, there’s per se limits that you can’t have marijuana in your bloodstream while you’re driving. Some people, of course, with a minor amount of marijuana might not even be impaired while they’re driving where others will, but those blood tests are very conclusive. It doesn’t matter whether that causes you impairment or not, you’re going to get convicted. If the blood test shows certain level of nanograms, you’re going to get different fines. So there you have it. In a nutshell, it’s a serious criminal offense, and it can obviously result in you losing your license and getting a criminal record. Not good. Marijuana may be legal in Canada now but it’s certainly not legal to have alcohol over the legal limit or any type of drugs while you’re driving. You shouldn’t do that because you’re going to get charged with these type of offenses.