Driving while intoxicated by alcohol or drugs: Impaired driving, is an offence under section 320.14 (1) (a) of the Criminal Code and occurs:

• when a person operates a motor vehicle while impaired by alcohol, drugs (including prescription, over-the-counter medications, and illegal substances), or a combination of both.

The law defines impairment as a diminished ability to operate a vehicle safely due to the consumption of alcohol or drugs. If you have been charged with a criminal driving offence such as impaired driving, it is important to hire an experienced criminal defence lawyer as soon as possible.

In Canada, police are trained to detect if a driver is under the influence of a drug and enforce drug-impaired driving laws using:

• Standard Field Sobriety Testing (SFST)
• Approved drug screening devices and bodily fluid samples, and
• Drug Recognition Evaluations (DRE)

When must a driver submit to a drug test?

An officer can demand that an individual submit to a roadside drug test where the officer has reasonable grounds to suspect that the individual has a drug in his or her body.

Reasonable grounds to suspect could include a driver:

• erratically moving in and out of lanes,
• following other vehicles at unsafe distances,
• having red eyes, muscle tremors or unusual speech patterns, etc.

If the officer has formed a reasonable suspicion that a driver has consumed drugs, the officer may demand that the driver submits to a Standard Field Sobriety Test (SFST) and may test the driver’s saliva using an approved oral fluid drug screening device.

Standard Field Sobriety Testing (SFST)

The Standardized Field Sobriety Test (SFST) is conducted at the roadside by specially trained police officers and consists of preliminary questions, an eye exam, and physical movement tests, such as:

• walking in a straight line,
• standing and turning, or
• standing on one leg.

Bodily fluid test using Approved Screening Devices (ASDs)

Section 320.11 Criminal Code allows officers to take a saliva sample using an oral fluid testing device approved by the federal government (approved screening device/ASD) This device tests for the recent presence of several drugs, including cannabis, cocaine, and methamphetamine.

Oral fluid drug screening does not provide the concentration of any drug that may be present in the body. The screening only detects the presence of particular substances in concentrations that exceed an established legal threshold by identifying if there is a drug in a person’s oral fluid above the cut-off level of the device.

The drug cut-offs set in the Standards by the Drugs and Driving Committee of the Canadian Society of Forensic Science are:

• THC – 25 ng/mL in oral fluid
• Cocaine – 50 ng/mL in oral fluid
• Methamphetamine – 50 ng/mL in oral fluid

A positive result of the screening is not proof of impairment. Instead, oral fluid screening is used to establish grounds to detain a driver for additional tests that may prove impairment. If the oral fluid drug screener indicates the presence of drugs and there are other signs of drug use or impairment the police can then demand a Drug Recognition Evaluation (DRE) by a specially trained officer or demand a blood sample for testing.

Drug Recognition Evaluation 

When a police officer suspects drug impairment, they may call in a trained Drug Recognition Expert (DRE) to perform the more thorough 12-step Drug Evaluation and Classification Program procedure (DECP) at a police station or medical facility that assesses the driver’s physical appearance, behavior, and performance on various tests to determine if drug impairment is present.

The 12-step DECP includes:

• sobriety tests that are similar to tests for alcohol impairment that measure a driver’s ability to perform tasks, such as standing on one leg or walking in a straight line;
• taking blood pressure, oral body temperature and pulse;
• measuring pupil size in different lighting conditions;
• reviewing the interview of the arresting police officer; and
• reviewing the interview and previous statements made by the driver.

Based on the results of the entire DRE, the police officer forms an opinion as to whether the driver is impaired. If the DRE determines that the driver is impaired by drugs, then they can demand further bodily fluid (blood, saliva or urine) sample testing.

If due to the results of a DRE an officer believes a driver was impaired, they can testify to this in court. For more information on Drug Recognition Experts and the Drug Evaluation and Classification Program, visit the Canadian Centre on Substance Abuse and Addiction (CCSA).

Blood sample testing

Blood samples test blood-drug concentration limits and are required to prove the Criminal Code offences of:

• Driving while exceeding the legal blood-drug limit, section 320.14 (1) (c)
• Driving while exceeding the legal combination of blood drug/alcohol limit, section 320.14 (1) (d)

As per the Code, a blood sample must be taken within two hours after the driver has ceased to operate a motor vehicle by a qualified medical practitioner or a qualified technician and only if they are satisfied that taking the sample would not endanger the person’s health.

It is important to note that a driver does not have to exceed the legal blood-drug limit limit to be charged with the offence of impaired driving.

What happens after the tests are completed?

After the DRE is completed, the blood, urine and/or oral fluid samples are sent to a forensic laboratory to be analyzed. However, the mere presence of a drug in a sample is not enough evidence to charge the driver with impaired driving.

In order to charge the driver:

• signs and symptoms of the DRE must be consistent with one or more drug categories, and
• the police evaluator’s findings must be supported by the test results of the bodily fluid samples.

For specific information on cannabis-impaired driving, refer to our Cannabis Law section.

What if a driver refuses a test?

If a driver refuses to provide a bodily fluid sample, or perform a sobriety test, he or she may be charged with the offence of failure or refusal to comply with demand under section 320.15 of the Criminal Code.

You do not have the right to have a lawyer present for roadside testing, however, if you are arrested and taken to the police station or medical facility for further testing, you do have the right to have a lawyer present.

Get help

To erase your criminal record, call toll-free 1-888-808-3628 or learn more at Pardon Partners. It’s easier than you think.

If you have been charged with a driving offence, it is important to hire an experienced criminal defence lawyer as soon as possible. Contact our preferred criminal defence expert, Calvin Barry Criminal Lawyers for a free consultation at 416-938-5858 .

								
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