The Federal Government has finally approved a second roadside testing device for cannabis. It’s no surprise, really. The Drager DrugTest 5000 has been the subject of intense criticism for its numerous failings, including its failure to work on cold temperatures and the lengthy period of time that an analysis takes. In fact, the criticism of the device was so significant that many police forces across Canada have simply refused to use the device.
So the approval of a second device seemed a natural progression.
The Abbott SoToxa is hard to find any information about online. This is likely deliberate. The Abbott SoToxa is a new name for the Alere DDS-2. Alere was recently purchased by the Abbott company, and with it came the rebranding of their line of drug detection devices. But don’t be fooled by the rebranding: this is the same device that was field-tested by Canadian police forces prior to cannabis legalization.
So what are the limitations of this new-ish device?
Well, the first and perhaps most concerning is the fact that the Abbott SoToxa does not detect impairment. This means that it will not take the people off the road who pose a danger to the public, but instead will put medical cannabis users at risk of license suspensions and criminal charges, in the same way we saw Michelle Gray lose her license despite passing the Drug Recognition Evaluation Test.
But it is at least arguable that while there is a criminal offence for having a certain threshold THC concentration in a person’s bloodstream it is necessary for police to have a means to detect that. I certainly do not agree with that proposition but it is one that may compel a court until the per se THC limits are struck down.
The Abbott SoToxa is a complicated device to use. There are three separate parts: the analyzer, the cartridge, and the testing swab. The analyzer must be placed on a flat and level surface and kept still during the testing process. The officer is supposed to unwrap a sealed cartridge and insert it into the unit for recognition. The device Is supposed to detect circumstances where there is an expired or defective cartridge.
Then, the swab is unpackaged and the driver is required to collect the sample. It’s unclear at this point how long the sample collection takes, but once the indicator turns blue, the swab is then inserted into the cartridge, which is still in the analyzer, and the whole process begins. Abbott claims that test results will come within five minutes, but Drager claims the test can be conducted in the same window and this appears to be the minimum, not the maximum or even the average. So we’ll see.
The concern, of course, with this many moving parts, is the huge potential for human error. Every step of the process has potential for fault. It is, in some respects, a device that has more potential for human error in the sample collection and analysis phase than the Drager DrugTest 5000. There is an inherent problem in that if the people who are being tested are people who are affected or impaired by drugs, they may behave unpredictably. That unpredictable behaviour increases the potential for something to go wrong in the testing, where there are so many phases.
Additionally, there are officer safety concerns that arise from this. Police officers have more potential to be distracted by what is going on with the insertion of various parts of the device and watching the screen for the myriad messages that they have to look for during the steps of the process that they may not recognize a risk facing them.
This is troubling. Roadside breathalyzers are at least designed in such a manner that the screen faces the officer while the device is in use, and it can be moved around so that the officer can also maintain watch over the driver. Not so with the SoToxa. Safety risks naturally arise, as do concerns about interferent substances ingested by the driver while the officer is distracted.
Like the Drager DrugTest 5000, the Abbott SoToxa has a recommended operating temperature. Again, this raises concerns about the suitability of the device for cold Canadian climates. While the temperature range is certainly more broad than that for the Drager, the range is not nearly sufficient for the realities of Canadian winters.
The other big problem with this device is that it is only detecting THC. It does not detect any of the other classes or categories of drugs that can cause impairment. And while the law was designed to address potential concerns about cannabis-impaired driving (which concerns have not borne out, I might add) the real drug problem that exists in Canada is opioids. Nothing is being done to address detection of these drugs behind the wheel.
Legally speaking, the fact that the device Is specific to only one substance also has a potential problematic effect on the validity of any Drug Recognition Evaluation Program. If the results of a roadside saliva test tell the officer a person has THC and only THC in their system, it is likely the DRE officer will identify THC as the cause of the impairment. This is a classic example that sets people up for investigator bias. If you’re told what to look for, you’re going to see it. Even when it isn’t there.
It will be interesting to see how the challenges play out in court where the DRE results in a positive identification of THC after the Abbott SoToxa is used. A good cross-examination may thoroughly undermine this approach to impaired driving enforcement by taking the teeth out of the two-stage analysis that tells an officer what to look for when they’re supposed to be conducting a blind multiple choice test for one of seven classes or categories of drug.
Ultimately, time will tell how the Abbott SoToxa is treated by our police, our legal system, and how well it fares in the courts. But at least for now we know one thing: there is a great deal of well-founded cynicism about whether roadside saliva testing for drugs is even reasonable in the first place.
Vancouver Criminal Lawyer with a focus on impaired driving, cannabis legalization and related issues, and immediate roadside prohibition defence.