In the News

New law compels drivers to test for drugs

July 5, 2008

Police have been given new powers to make drivers do tests to see if they are impaired by drugs. Under amendments to the Criminal Code that took effect July 2, 2008, drivers who refuse to do the tests or to comply with a subsequent demand to provide bodily fluid samples will face the same penalties as convicted drunk drivers.

If police suspect on reasonable grounds that you have been driving or have care or control of a motor vehicle with drugs in your body they can demand you to perform forthwith roadside physical coordination tests to substantiate their suspicions. If the suspicions are confirmed, police can demand you undergo an evaluation consisting of further tests at the station.

Bodily samples can be required

If the officer who does the evaluation is satisfied that your ability to operate a motor vehicle is impaired by a drug, or a combination of alcohol and a drug, he can require you to provide a blood, urine or saliva sample to test for the presence of drugs. A blood sample, however, can be taken only by or under the direction of a qualified medical practitioner.

If you fail or refuse to provide a bodily sample, or fail or refuse to comply with a demand for the roadside physical coordination tests or a subsequent evaluation you are liable to lose your driver's licence for at least one year and to a minimum fine of $1,000 or up to 18 months jail. Previously police could request drivers to participate in such tests, but it was not a crime to refuse.

The roadside tests are an eye exam called the horizontal gaze nystagmus (HGN) test; the walk-and-turn test; and the one-leg stand test. Together these comprise the standardized field sobriety test (SFST) battery. Information on the HGN test is available from the U.S. National Highway Traffic Safety Administration website.

Evaluation tests and procedures

If you are detained for an evaluation you will be subjected to the following tests and procedures:

1. a preliminary examination, which consists of measuring your pulse and determining that your pupils are the same size and that your eyes track an object equally;
2. eye examinations, which consist of
1. the horizontal gaze nystagmus test,
2. the vertical gaze nystagmus (VGN) test, and
3. the lack-of-convergence test;

3. divided-attention tests, which consist of
1. the Romberg balance test,
2. the walk-and-turn test
3. the one-leg stand test, and
4. the finger-to-nose test, which includes tilting your head back and touching the tip of your index finger to the tip of your nose while keeping your eyes closed;

4. an examination, which consists of measuring your blood pressure, temperature and pulse;
5. an examination of pupil sizes under light levels of ambient light, near total darkness and direct light and an examination of your nasal and oral cavities;
6. checking of your muscle tone and pulse; and
7. a visual examination of your arms, neck and, if exposed, your legs for evidence of injection sites.

Specially trained officers

The evaluation can be carried out only by a specially trained officer known as a DRE or drug recognition expert. DRE officers must complete the Drug Evaluation and Classification program offered by the International Association of Chiefs of Police.

Critics say research is lacking to equate drug quantity and impairment. Another potential problem in testing bodily fluids is that they can detect marijuana smoked several days or weeks earlier, whose effects will have worn off.

Amendments similar to those now coming into force were introduced by the government in 2004 and 2006, but never made it into law.

Funding lag

Implemention of the new law may be delayed. In Ontario, for example, the government-run Centre of Forensic Sciences, which is responsible for the testing, does not currently have the resources in place to analyze bodily fluid samples seized subject to the amendments. The centre reportedly will accept samples only in "serious" cases, likely referring to those involving accidents that result in death or bodily harm.

Ron Jourard is a Toronto criminal lawyer. He can be reached at (416) 398-6685 or toll free (Canada and U.S.) 1-888-257-0002, or by email at jourard@defencelaw.com.

The information provided above is believed to be correct at the time of writing. It is published for educational purposes and should not be regarded or relied upon as legal advice.

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