Impaired by Drugs

July 1, 2019

Under Canadian law it is illegal to drive when impaired. Usually when we hear about impaired driving in the media, the focus is on drinking and driving. However, it is also illegal to drive while under the influence of drugs. This law applies both to illegal drugs and to prescription drugs which affect the user’s ability to drive.

The focus is not on the legal status of the drug, but on its effects. Drugs that impair depth perception, attention span, concentration, decision-making, and reaction time are all considered to be “impairing”. This would include street drugs such as cocaine and marijuana and also a wide variety of prescription drugs such as morphine, oxycodone, valium and other painkillers. Obviously, drugs that cause hallucinations, distort the user’s perception of time and distance, cause confusion or make it hard to distinguish between fantasy and reality are extremely impairing. This would include a variety of hallucinogenic street drugs such as magic mushrooms, LSD, acid, and also amphetamines such as ecstasy, crystal meth, methylenedioxymethamphetamine (MDMA), dexamphetamine.

If a driver is stopped by a roadside spot check (such as Toronto’s RIDE program) or spotted driving erratically by the police, and the police suspect that he or she is currently impaired by drugs, they will investigate. The police have many resources available to them to test whether an individual is driving under the influence of drugs.

If the police officer has a reasonable suspicion that a suspect is impaired by drugs, he or she may administer a Standardized Field Sobriety Test (SFST). This SFST consists of a series of three tests. The first test is known as the “horizontal gaze nystagmus test”. “Horizontal gaze mystagmus” is the technical terms for the natural involuntary jerking of the eyeball that occurs as the eyes gaze to the side. When an individual is impaired, this jerking becomes exaggerated and occurs earlier. The officer will likely ask the suspect to watch his hand as he moves it from side to side to see if your eyes react abnormally. Moreover, individuals impaired by drugs have difficulty concentrating on a moving object, and so this is also a factor the officer will look for when applying the first test.

The second and third tests in the SFST are known as “divided attention tests”. These test require that the suspect listen and follow instructions while performing simple physical movements. The first is the walk and turn test. The suspect will be instructed to walk nine steps, heel to toe, along a straight line, and then turn on one leg and walk back. The second test is the one leg stand where the suspect is asked to stand on one leg with the other foot about six feet off the ground and count by thousands (“one thousand, two thousand, etc.). Though these tasks would be extremely easy for a sober person to perform, an impaired individual will often have trouble performing these tasks. Impaired individuals often have trouble performing tasks that require them to pay attention to instruction, perform simple mental actions (such as counting in thousands) or performing simple physical acts (such as balancing on one foot). During the “walk and turn test” the officer will watch for seven factors: if the suspect has trouble balancing while listening to the instructions, begins before the instructions are finished, stops while walking to regain his or her balance, does not touch heel-to-toe, uses his or her arms to balance, loses his or her balance while turning, or takes an incorrect number of steps, these will be considered signs of impairment. During the “one leg stand”, the officer will watch to see if the individual has trouble balancing on one foot. If the suspect sways, uses his or her arms for balance, hops on one foot to maintain his or her balance, or looses his or her balance, the officer will view that as a sign of impairment.

The SFSTs are entirely voluntary in every Canadian province except Quebec. In Toronto and the rest of Ontario you are not legally obliged to comply with the SFSTs. There are a variety of reasons why you should not comply with these tests. Though the tests have been studied and shown to be 60-80% accurate when performed properly in ideal conditions, criminal defence lawyers know from experience that, in practice, these test are almost always performed incorrectly in conditions that skew the results. For example, if a suspect is asked to perform these tests on an incline or if the ground is wet, this may interfere with the quality of the results. Moreover, police officers often give poor instructions, causing suspects to misunderstand and subsequently fail the test. Moreover, these skewed results can be used to detain the suspect and transport him or her to the police station for further testing.

If the suspect is detained and taken to the police station, he or she will be evaluated by a Drug Recognition Expert (DRE). If the drug recognition expert is able to evaluate the individual and determine that a specific family of drugs caused the suspect to be impaired, the suspect will be forced to submit to a saliva, urine or blood test. This will be tested for drugs to determine whether or not the individual is impaired.

The new testing regime described above, most notably the mandatory fluid samples, is a relatively new process in Ontario law. It was introduced in July 2008 under Bill C-2: the Tackling Violent Crime Act. There are many reasons why criminal defence lawyers feel that this new legislation is unlikely to be effective. First, unlike alcohol impairment, which is quite obvious, individuals under the influence of marijuana and other similar drugs display few obvious signs of impairment. Though individuals on amphetamines and opiates may display more symptoms of impairment there is very little evidence that these drugs are actually linked to car accidents in any significant way. It seems that most people voluntarily refrain from driving while under the influence of these drugs. Thus, it will be hard to officers to identify correctly suspects to undergo this new process. Second, there is very little evidence that saliva or urine tests provide any accurate information about levels of drugs in the body. The technology for saliva testing of THC (the active drug in marijuana) levels is rudimentary at best. Moreover, urine testing only tells us if the suspect has consumed drugs in the recent past (30 days for marijuana); however, it cannot conclusively link the ingestion of the drug with the time of driving. Only a blood plasma test has the ability to show current levels of drugs in the body. However, since up until now Canadian law has espoused a zero tolerance policy with respect to drugs, there is very little research indicating what levels of each drug in the blood actually leads to “impairment”. Since impairment is a necessary component of the offence of “driving while impaired”, this is an important deficiency in the law. Finally, since a blood test is an invasive procedure and because our law recognizes that individual’s have the right to protect their bodily integrity and make important decisions about their body, mandatory testing – which is unlikely to show conclusive results – it is almost certainly unconstitutional. If you are charged under the new regime, your criminal defence lawyer will certainly challenge the constitutionality of the test. Thus, it is very unlikely that the new process will lead to an increase in convictions of individuals driving while under the influence of drugs.

Recently, in the case of R. v. B., although the Drug Recognition Expert concluded that B was impaired by drug (most likely marijuana), a urine sample taken by the police definitely showed that there was no active drug in B’s bloodstream.

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