With the Government's announced intention to legalize the recreational use of marijuana there has been increased attention to the issue of impaired driving as a result of the consumption of a drug.
The offence of impaired driving by drug has always existed but recently there has been increased priority placed on enforcement of these laws. Although there are pilot projects ongoing to date there is no equivalent to the breathalyser to test for the presence of drugs.
The detection of drivers impaired by drug at the roadside depends on human observations and the drivers performance on standard field sobriety tests. If the driver is taken to the station an examination is conducted by an officer with training in drug recognition and a urine sample may be taken.
In some cases a blood sample may be taken under the direction of a qualified medical practitioner. There is no dispute that drivers impaired by a drug can present a very real danger and this area of the law must be enforced. However, the current tools to detect impairment by drug are limited, largely subjective and subject to interpretation . Accordingly innocent persons will be erroneously charged. An experienced defence counsel will frequently be able to successfully challenge the evidence of the police officers with respect to possible impairment by drug of the person's ability to drive a car. For example a person who had difficulty with the one legged stand test could have done so for many reasons other than drug consumption. Furthermore, by definition a urine sample will normally only provide evidence of prior consumption and have little probative value as to the level of the drug in the driver's blood at the time of driving. The penalties for driving while impaired by drug are very similar to if not more serious than the penalties for drinking and driving. However, for those charged the situation is not hopeless. In any addition to all the potential challenges under the Charter of Rights to the lawfulness of the testing itself, the test results themselves are far from conclusive and subject to forceful and successful challenge by the defence. Anyone who is charged with operating a motor vehicle while impaired by drug should consult with an experienced defence counsel.