Drug recognition experts are expected to be at the front lines of battling drivers impaired by cannabis now that the drug will be legal in Canada Oct. 17.
Although the federal government is testing roadside oral-fluid screening devices, there is currently no approved roadside testing device in Canada to screen drivers for impairment from cannabis.
Although the RCMP has roadside devices to track drivers impaired by alcohol, nothing like that is available for drugs. Police now rely on science-based observational tests, known as standardized field sobriety tests, and drug recognition expert evaluations to nab drivers impaired by any type of drug.
Richard Nowak, provincial co-ordinator for the Alberta Drug Recognition Expert Program, said that the two types of tests are extremely reliable to catch those who are driving under the influence.
“In Alberta, including all police agencies that conduct DREs, we have an 97 per cent accuracy when compared to toxicological analysis,” Nowak said.
With legalization around the corner, the federal government has allocated $81 million across Canada to increase training for drug impairment recognition over the next four years, with Alberta getting more than $7 million of the funding.
“We have the tools. We are actively using them and we are actually increasing our training and capacity to detect this with legalization on the horizon,” Nowak said.
Walk the line
If an RCMP officer pulls a vehicle over suspecting that the driver may be impaired, the officer, if they are trained in standardized field sobriety tests, is able to conduct a preliminary roadside test to further determine if the driver is under the influence of drugs and alcohol.
Three tests will be administered by the officer, including an eye evaluation to track the involuntary movement of the eye, a walk and turn test and a test where the driver has to stand on one leg. If the officer has evidence of impairment, the driver will be allowed to contact a lawyer and then will be taken to the detachment where they will meet with a trained drug recognition expert to undergo further testing. Drivers are tested for any health conditions before they are put through further testing.
In Alberta, there are 89 trained drug recognition experts who are able to administer the exam to drivers and they are spread to every corner of the province so every jurisdiction has a DRE able to arrive within three hours of a call.
St. Albert detachment commander Insp. Pamela Robinson said the St. Albert detachment has one trained DRE expert and has access to others because of the proximity to the central Alberta district.
"There is quite a pool of people with this specialized and experience within our region," Robinson said.
Once the drug recognition expert arrives, they will administer a 12-step test that includes testing for alcohol impairment, interviews, eye and co-ordination exams. The driver’s pulse will be taken several times throughout the test and the driver will be asked to divide their attention to complete tasks.
“The most important part of the test is that they divide the subject’s attention,” Nowak added, because when behind the wheel of a vehicle a driver will need to focus on multiple factors at once, including speed, road signs and other vehicles.
“You need to divide your attention and maintain constant awareness. These co-ordination tests do just that,” Nowak said.
By the time the DRE arrives at the 11th step, the officer will have enough information to form an opinion and decide if the driver falls into one of the seven drug categories for impairment. If the DRE determines the driver is impaired, they will take a toxicological sample from the driver and charges will not be laid until the results of the sample come back.
Before the judge
Once the case moves into the court system, the drug recognition experts will be called to testify in front of a judge to give their opinion on the impairment of the driver.Right now, the courts already handle cases with drivers impaired by drugs.
“Drug impaired driving isn’t going to start when cannabis is legalized. It has already been happening,” Nowak said.
Local defence lawyer Brad Leebody from Leebody and Lloyd said that he suspects the number of cases before the courts will increase as it becomes more socially acceptable to consume cannabis in public. As the cases increase Leebody noted the court system will likely get bogged down with drug impaired driving charges, similar to the way drunk driving charges now monopolize Crown time.
In Alberta, between 12 and 16 per cent of criminal charges laid by police are for impaired driving but impaired trials account for 40 per cent of trial time for the Crown.
Nowak notes that the science-based tests that DREs conduct are enough to determine if a driver shouldn’t be behind the wheel.
“It is the behaviour of someone that is impaired that it is proof they have too much in their system,” Nowak noted, and said that if a driver is pulled over for driving erratically and is found to be impaired by a drug, it is enough evidence that they should not be driving.
“People don’t do drugs that make you feel stone sober,” Nowak said.
The problem with not having a specific device to measure the level of intoxication is that cases will be determined by expert testimony. Leebody noted that with any expert testifying there is always a high level of subjectivity and while the experts may be good at their jobs, it introduces an uncertain factor into the courts.
Leebody anticipates that along with more charges, trials will take longer as defence lawyers will be cross-examining the DREs to ensure that they have conducted the 12-step program. It may be several years, Leebody added, before the kinks have been ironed out in the eyes of the law.
“I think there are going to be challenges with respect to how these tests are done,” Leebody said and noted that legal decisions will eventually decide the ground rules that determine how long the tests can take and when the tests can be done.
“All these things are going to have to work themselves out. This is a burgeoning new area of the law,” Leebody said.
One of the main areas defence lawyers may focus on while in court is the length of detainment while conducting the tests, Dave Lloyd from Leebody and Lloyd said.
“Defence is always going to be attacking the validity of the detention so it is going to be up to the police to have sufficient evidence to show that the person was lawfully detained,” Lloyd said.
The drug recognition exam was introduced in Canada in October 1995 when British Columbia began delivering the exam. The program was legislated into the Criminal Code in July 2008 when the government made it compulsory when demanded by an officer. In Canada, if a driver is suspected of being impaired they must submit to a field sobriety test. Once the roadside test is conducted and the officer has evidence of impairment, the driver must accompany the officer to the police station to be screened by an officer trained with the drug recognition program.
Testimony from DREs has held up in the Supreme Court of Canada and they are determined to be experts before the law.
