Between the race to develop a marijuana "breathalyzer" and the legalization of marijuana in U.S. border states like Colorado and Washington, there has been a great deal of discussion about drug impaired driving law in British Columbia and Canada. Many groups such as MADD Canada and the Canadian Centre on Substance Abuse have been putting pressure on government to establish "per se" limits for drugs in the body. But will this really deal with the problem of drug-impaired driving? And is drug-impaired driving really a problem in Canada?
There are two ways that Government can seek to deal with the problem of drug impaired driving, either federally as a criminal charge or provincially under a road and highway scheme. Think about the way the Immediate Roadside Prohibition scheme in British Columbia addresses alcohol-impaired driving. Even though it's a matter of criminal law, because it relates to roads and highways the Province is entitled to legislate about it.
Drug-Impaired Driving in British Columbia
In British Columbia, we have drug-impaired driving laws in Section 215 of the Motor Vehicle Act. If a police officer has reasonable grounds to believe the driver's ability to drive is affected by a drug, then he can take away your license for 24 hours. No blood or saliva testing is required, no evidence of any drugs needs to be located in the vehicle. At first blush, this seems reasonably fair. It addresses the public safety concern that potentially impaired drivers pose, while not being overly harsh. The problem is in the inability to review the prohibition.
There is no review process with RoadSafetyBC for a 24-Hour Prohibition for drugs. The only avenue of redress is by filing for judicial review in BC Supreme Court. This is a costly and time-consuming process. And because the standard the police have to establish is low, the chances of success are a mixed bag. In a later blog post, I'll write more about how to dispute a 24-Hour for Drugs in BC Supreme Court and what is involved.
If the consequences of a 24-Hour Prohibition were simply that the driver was removed from the road for 24 hours, this would not really be a significant concern. However, that's not what happens. The 24-Hour Prohibition - DRUGS is recorded on a driving abstract, forever. Just take the example of Derek Kowalenko, who was issued a 24-Hour Prohibition for drugs despite never having used marijuana. He's now out of work because there is no accessible or reasonable process to have that record removed from his driving abstract. For Class 7 "N" drivers this is also a problem. A 24-Hour Prohibition for drugs will, without fail, trigger a further driving prohibition of at least two months under the so-called "Driver Improvement Program." So the law says the punishment is 24 hours, when in reality, it's a lot longer.
There are also collateral consequences of having multiple alcohol and/or drug-related incidents on your driving record. For example, you could be referred to the Responsible Driver Program. Or, inexplicably, the Ignition Interlock Program. Even though the Interlock will do nothing to prevent you from driving if you are affected by a drug.
Your driving record is forever, and police agencies have access to your driving record when dealing with you. Border officials, for example, can see that you've received a drug-related incident and deny you entry to the United States. That's a hefty punishment for something that you cannot readily challenge and that is only based on an officer's supposition. The Superintendent of Motor Vehicles has promised to create a review process for drivers, but recent sweeping amendments to the Motor Vehicle Act have not added any such changes.
Lip service? Probably. Looking at the changes to the Motor Vehicle Act, we probably don't want the type of review process our government seems to believe provides an appropriate mechanism of redress. As it stands, drug impaired driving in BC remains a significant blow to drivers, disguised as a slap on the wrist.
Drug-Impaired Driving in Canada
In Canada, driving while impaired by a drug is a criminal offence. Typically, police observe some type of poor driving behaviour, rule out alcohol based on the absence of a smell or admission of consumption, and perform Standardized Field Sobriety Tests or Drug Recognition Examinations to determine whether a person has been affected by a drug.
However, we have no laws in Canada relating to how much of any particular drug can be in your system when you are driving. Impairment is subjective, and tolerances to different levels of drugs can make one person impaired while another not impaired. All of this means that Canada's drug-impaired driving laws are difficult for police to investigate and make it difficult for the Crown Prosecutors to secure convictions. While some have proposed setting "per se" limits for drugs in the body, this has obvious problems. Some people need a certain level of an otherwise impairing drug to function normally. I'm sure we all have that friend who wakes and bakes, and cannot put together a sentence without having a few hits from a joint. Frankly, I wouldn't want to get in a car with that friend unless they'd already smoked some marijuana.
Recently, the courts have been rejecting the Drug Recognition Evaluation tests as a mechanism by which impairment by drugs is proven. The Courts instead conclude that the only thing that DRE tests establish is the presence of a drug in a person's body, not impairment by it. And there is no crime committed by drivers who simply have drugs in their body. Nor is it necessarily a good idea to write laws that criminalize driving with any drug in the body, as Illinois has recently learned.
But what, then, is the best way to prosecute these offences? Or does it make sense to do so? Future blog posts on this topic will attempt to answer those questions. Stay tuned.
Vancouver Criminal Lawyer with a focus on impaired driving, cannabis legalization and related issues, and immediate roadside prohibition defence.