Today, the BC Government announced its stance on marijuana legalization. Unsurprisingly, the announcement comes with some indication about how the province intends to tackle the issue of marijuana impaired driving.
Without giving away the details, the Government has announced that it will be introducing a 90-day Administrative Driving Prohibition for marijuana impaired driving. Nothing about this is surprising, as we had long suspected that the so-called success of the Immediate Roadside Prohibition would be translated into drug impaired driving when the time came. However, what is confusing is how the Government expects to administer the law effectively.
If the Government intends to make this a roadside penalty, similar to the IRP scheme, then there are essentially two equally flawed options available to them. If they intend this to be a 90-day prohibition based on a more thorough investigation, then that too holds inherent flaws.
So what are the options?
Option One: Saliva Testing
Saliva testing is one way through with the Government could implement its 90-day drug impaired driving prohibition. The problem with this option is obvious on its face: saliva testing can only detect the presence of a drug in a person’s body. It does not give an officer an indication of a particular blood drug concentration, or give any indication that a person is impaired.
Additionally, saliva testing is flawed in the sense that the saliva testing devices are susceptible to cold temperatures, rendering their accuracy questionable when the temperatures dip below freezing. While that may be acceptable in the Lower Mainland, the rest of British Columbia may have a problem with risking wrongful punishment six months of the year.
I’m also very concerned about the privacy interests that are affected by saliva testing. For what purpose will the saliva swabs be used after the police have imposed the roadside prohibition? It’s gathering of DNA — an inherently personal substance — that can then be used to link a person to another offence or gain personal biological core data about a person. I should hope that if the Government goes this route there are clear guidelines and restrictions for how the police are to dispose of the saliva swabs, protect personal privacy, and penalties for mishandling this information and evidence.
It may be that the Government designs some combination of physical evidence — like bloodshot eyes or pinpoint pupils — and saliva testing results, or requires evidence of erratic driving. However, any factor that is suggestive of drug impairment in either driving or physical condition can also easily be explained by other causes, such as fatigue, inattentiveness, or a medical condition.
Which leads me to the next option.
Option Two: Standardized Field Sobriety Tests
The second option for a quick and dirty roadside prohibition for drugs would be to use the results of Standardized Field Sobriety Tests. These are the three tests one would typically see done in an episode of Cops: walk the line, one-leg-stand, and the horizontal gaze nystagmus test (the pen-eye test). This too presents a number of significant concerns.
The first is constitutional. The SFST battery requires compelled participation on the part of a driver. Under the Criminal Code, these tests can only be used for the purposes of allowing an officer to gather evidence to make a demand for a Drug Recognition Evaluation or a demand for breath samples at the police station. By extending their use for punishment at the roadside, the Government would be running afoul of constitutional law authority that states that there is use immunity associated with these tests.
And while the Government has successfully argued that it can use the results of approved screening device testing to determine whether a person is a candidate for an IRP, the parallel is not the same. The IRP scheme relies on the minimal impairment of constitutional rights, in the sense that the testing is brief, non-intrusive, and subject to reasonable suspicion and forthwith requirements. This is not so for SFST testing.
Rather, a person given an SFST demand must participate in a series of three lengthy steps that involve a prolonged detention. Rather than a few seconds of blowing into a device, a person is forced through a physical three-ring circus at the demand of a peace officer. The intrusion into personal freedom and liberties is inherently more significant.
Which also dovetails nicely with the second concern with using SFST testing for a roadside penalty. The results of the tests are entirely subjective. The potential for abuse by police is high, given that its an officer’s interpretation of how the test was completed that forms the basis of the penalty. Additionally, the manner in which the officer administers the test can affect its outcome. And unless video evidence is preserved at the scene, unlike roadside breath testers with calibration records, there is no way to objectively review the performance on the tests and the manner of their administration.
Remember that the constitutionality of the first version of the IRP scheme failed on the basis that the results of the roadside testing were not sufficiently reviewable. Will there be a requirement, if SFSTs are used, that they be recorded and the recording provided to the subjects? Or does this present an administrative hurdle for RoadSafetyBC in the review of these prohibitions?
All this is set against the backdrop of the science behind these tests. Not only is there a real dearth of peer reviewed literature that supports the scientific validity of the testing, but SFSTs — despite their use heretofore in Canada — were never intended to be used for drugs. Their use was studied and developed for alcohol.
The science also fails to account for the fact that medical conditions can explain all of the poor performance on the tests. Horizontal Gaze Nystagmus is present in individuals who have suffered head injuries, or as a result of some eye conditions. Trouble balancing on one leg can be attributed to knee or hip injuries, as well as simply being overweight. And if you’ve ever tried to do the walk-the-line test, it is designed to make a person fail. People are asked to walk in a completely non-natural manner.
Without the ability to properly review SFSTs, which were not intended or designed to be used for this purpose anyway, the use of them to issue 90-day driving prohibitions for drugs will likely not survive a court challenge.
Option Three: Drug Recognition Evaluation
While this option is the most thorough and the most likely to collect evidence that the Court will consider to be objective support for the conclusion that a person is impaired by a drug, this option has its own inherent flaws.
While the problem with the Drug Recognition Evaluation protocol is properly the subject of a lengthy series of blog posts, the same concerns about an officer’s subjective interpretation of a scientifically invalid and not-peer-reviewed process remain present with using the results of a Drug Recognition Evaluation as the basis for a 90-day suspension. Add into this the inherent limitations on reviewing the results of these tests in the administrative context, and there are similar concerns related to the reviewability of the search that led to IRPs being declared unconstitutional in the first instance.
But there is a further constitutional consideration. Thus far, cases that have withstood judicial scrutiny for roadside penalties for impaired driving are, as noted above, cases where there is limited intrusiveness of a search, and a minimal detention. The DRE protocol is a lengthy process that involves inspecting minute nooks and crannies of a person’s body, taking a statement, taking breath samples, and serious physical scrutiny. It takes upwards of 45 minutes to complete properly, and if done in the roadside context may be authorized without the right to counsel.
This will be completely contrary to many judgments that have authorized the limitation on contacting lawyers in the administrative sphere, which could lead to the courts finding that the DRE method of penalizing drivers is too much of an intrusion into Charter-protected liberties.
I suspect for these reasons that this option will be the least likely for the Government to pursue. However, I am not holding my breath that the constitutional rights of people to contact lawyers and be secure against unreasonable search and seizure will have much of a bearing on how the Government purports to address the problem of drug-impaired driving.
What remains to be seen is how they will approach the issue. No matter what approach, it is clear that there will be constitutional challenges and litigation ahead.
Vancouver Criminal Lawyer with a focus on impaired driving, cannabis legalization and related issues, and immediate roadside prohibition defence.