Impaired by Drug – How Can They Prove It?

This week, the OPP launched their annual Festive RIDE campaign with a bit of a twist. Inspector Mark Wolfe has explained that the OPP will be partnering with Petawawa Military Police, Deep River Police and the Ministry of Transportation to target drivers who are impaired by drugs as well as drivers impaired by drinking.

The new focus of the RIDE program might come as a bit of a surprise to some. Can the police detect if a driver has consumed drugs? Perhaps more significantly, Can a Court determine, beyond a reasonable doubt, that a driver is impaired by drugs?  In short, the answer is Yes and Yes.

 

Since January 2016, the Upper Ottawa Valley OPP has set-up 260 RIDE spot checks. The spoils of these checks? Twelve impaired by alcohol charges and 2 impaired by drugs.

Unlike alcohol, drug consumption is difficult to identify and even more difficult to quantify. In the broadest of terms, police can gain this evidence through one of two ways: the driver confesses to the drugs (Sorry, officer, I was a little high and lost control for a second) or the officer is able to make an ‘expert opinion’ through his own observations and/or the evidence he collects as a result of those observations.

If the driver confesses, this evidence will be used against him as proof of impairment.

Police do not need a confession to form an opinion about whether the driver is impaired. An officer may perform Standard Field Sobriety Tests to determine the sobriety of the driver. These tests include:

  • Walking in a straight line and turning
  • Standing on one leg
  • Eye movement tracking

If the officer believes the suspect has failed the SFST, they will be taken as soon as possible to a Drug Recognition Evaluator. The Criminal Code of Canada allows an officer (usually referred to as a “Drug Recognition Evaluator” or DRE) to conduct further tests including:

  • Pupil measurement, comparison, pulse, and eye tracking
  • A “gaze nystagmus test”
  • A “lack of convergence” test
  • Balancing, walking and turning, one-legged standing, finger to nose (think: every tv show you’ve ever seen with a roadside)
  • Blood pressure, temperature, pulse
  • Pupil size measurement in different lights
  • Nasal and oral cavity exam
  • Muscle note and pulse exam
  • Exam for injection sites

From these tests, the DRE officer can make the opinion that the person is impaired by drugs. The officer can also demand a saliva, urine or blood sample to send for analysis to determine if the driver has drugs in his system.

 

How does this play out on the road?

  1. Police officer has reasonable suspicion that the suspect has a drug in his body has driven in the past three hours.
  2. Police conduct SFST
  3. Police form reasonable grounds that the suspect is impaired by drug
  4. DRE officer performs DRE evaluation
  5. DRE test allows demand for bodily sample
  6. Bodily sample sent to toxicologist for analysis
  7. Toxicologist provides report that drug was in the body and that what effects that drug might have had at the time of driving

Let’s take, for example, the local case of Robert Conron. One morning in December 2010, Mr. Conron was found in his running vehicle while he was asleep. When officers awoke Mr. Conron, they observed he was slow, lethargic and unsteady on his feet. The officers found no booze or bottles in Mr. Conron’s car nor any smell of alcohol on his breath. The officers then conducted a “Standard Field Sobriety Test”. After the Field Sobriety Test, the officers brought Mr. Conron back to the station and conducted further tests. Officers then demanded that Mr. Conron provide a urine sample. The sample was sealed and sent to the Centre of Forensic Sciences.

On the SFST and the DRE, police testified that Conron didn’t perform particularly well: he was uncoordinated and had issues with his balance, but passed the Gaze nystagmus tests and pupil-measurement test. However, the urine sample he provided returned a report of a number of detected drugs.

To put it simply, the police officers at the scene were satisfied that Mr. Conron’s behavior and performance on the Field Sobriety Tests merited further investigation through further testing which then led to urine analysis. On the totality of that evidence, the Crown prosecuted Mr. Conron. However, at trial, Mr. Conron was acquitted.

 

How does Drug Recognition Evidence get handled at court?

To convict someone of impaired driving by drugs, the trial Judge must be convinced beyond a reasonable doubt that:

  1. The accused was in care and control of the motor vehicle
  2. That the accused’s driving was impaired and
  3. That impairment was the result of drug consumption (as opposed to distraction, for example)

In Mr. Conron’s case, the Crown was able to show that Mr. Conron was in care and control of the vehicle: he was in the driver’s seat while the car was running. However, Mr. Conron’s lawyer argued that his missteps on the Field Sobriety Test and DRE could be explained by the fact that he might have been tired, or simply uncoordinated. Finally, the evidence was not sufficient to prove that the drugs in Mr. Conron’s system would have necessarily impacted his driving.

 

What can we expect going forward?

Since Mr. Conron was stopped in 2010, the education and training surrounding the investigation of impaired driving by drugs has advanced. Since Mr. Conron’s case was heard in 2012, the law, too, has evolved.

In a 2015 Ontario, R. v. Bingley, the Ontario Court of Appeal determined that the evidence of the officer completing the testing after the SFST (the “Drug Recognition Evaluator”) is expert evidence that can be admitted as some proof of driving impairment on its own. In other words, if a police officer qualified as a DRE believes that a driver is impaired, the officer’s opinion of impairment can be used to convict the driver. If this evidence had been admitted as expert evidence in Mr. Conron’s case, he may have had a much different result.

The investigations and prosecutions for driving while impaired by drugs, in the Pembroke region and across Canada are a hot topic, causing much debate and controversy. Nevertheless, a few things can be said for sure:

  1. If you believe you may be impaired by drugs or by alcohol, it is always best to find an alternate form of transportation and avoid driving.
  1. A confession (whether in jest, sincerity or otherwise) to an officer can, and likely will, be used as evidence against a driver in these situations.
  1. If you find yourself charged with the offence of impaired by drugs or impaired by alcohol (also referred to as “DUI”), it is advisable to contact a lawyer immediately to help you navigate this complex and specialized area of law.


Jodie Primeau, Barrister & Solicitor

Call 613.732.2883 if you have any questions about cases like this or if you are in need of legal assistance. 

This is my personal weblog and the views expressed here are solely the author’s and should not be attributed to my firm or its clients.  The material and information provided on this website are for general information only and should not, in any way, be relied on as legal advice or opinion. The author makes no claims, promises or guarantees about the accuracy, completeness, currency, or adequacy of any information linked or referred to or contained on this weblog. No person should act or refrain from acting in reliance on any information found on this website or blog, without first retaining counsel and obtaining appropriate professional advice from a lawyer duly licensed to practise law in the relevant province, state, territory or country. This blog is presented for informational purposes only. These materials do not constitute legal advice and do not create a solicitor-client relationship between you and Jodie Primeau. Please note that I am only able to provide legal advice to clients and will not provide free legal advice. Please don’t send me any information or questions by email or otherwise because any information sent to me cannot be considered to be solicitor-client privileged or confidential.

 

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