With all the excitement regarding the legalization of cannabis you might be forgiven for not having paid careful attention to the numerous reportings in the media and public government announcements that a second phase of new legislative changes is about to take effect on December, 18, 2018 further revising the Canadian Criminal Code regarding alcohol and drug related impaired driving offenses.
New Canadian Criminal Code provisions regarding alcohol and drug related impaired driving offenses
Since June 21, 2018 some changes have already been in force creating three new offenses for impaired driving based on the presence of and/or concentration of various drugs and alcohol in a driver’s system, particularly THC, the psychoactive component in cannabis.
Those changes have also eliminated a defense routinely used commonly referred to as “bolus drinking” (whereby a motorist claims to have consumed alcohol shortly before driving such that any test results might be skewed by the recent drinking) by simply making it a crime to have consumed alcohol and/or drugs above the designated time limit of 2 hours before driving.
However, the new legislation will grant police additional investigate powers regarding motorists and is likely to raise public concerns about potential police abuse.
Under the previous law, a police officer was required to show that he had a reasonable suspicion before being able to compel a breath sample from a motorist. That is, an officer needed objective evidence pointing to signs of faulty driving such as a Highway Safety Code violation combined with observable physical signs of impairment such as red or glassy eyes, slurred speech or poor coordination.
The requirement was often higher if the officer wished to compel a blood sample for analysis – often by requiring a court order – given its invasive nature.
Mandatory screening process
The new rules do away in part with reasonable suspicion by creating a mandatory screening process such that police officers who lawfully pull over a motorist and whom are equipped with a recognized screening device (breathalyzer) will be authorized by law to demand a breath sample without even having any suspicion at all of impairment.
Drug impaired driving investigations
In addition, the new legislation makes drug impaired driving investigations and, ultimately the prosecution of those offenses easier.
Police officers who have a reasonable suspicion that a driver has consumed any type of drug either alone or in combination with alcohol will be permitted to demand an oral fluid sample (saliva). A failed sample may then be used to establish reasonable grounds to demand an evaluation by another officer trained in drug recognition. Alternatively, they may also demand a blood sample to confirm the nature of the drug without getting court approval. A motorist who unjustifiably refuses to submit will risk criminal liability as under the old law.
Oral fluid screeners
Although still relatively expensive devices for most smaller police departments and subject to some technological limitations compared to breathalyzer devices, oral fluid screeners like breathalyzer devices may become increasingly used by the police as they are pre-programmed to detect a whole host of drugs.
Drug recognition and evaluation agents (“DRE”)
Of greater concern is that officers trained as drug recognition and evaluation agents (“DRE”) will now be allowed to provide opinion evidence in Court. This type of evidence has normally been reserved for those witnesses formally declared as experts by the Court. DRE officers will be able to testify, essentially as an expert, as to their belief that a driver was impaired and by which drug.
In effect, this means that where an arresting officer has made subjective observations of impairment, those observations combined with the opinion of a DRE officer regarding the drug type and testing will create a legal presumption of impairment within the prescribed window of 2 hours before driving with limited defenses available to a defendant.
Consequently, the new legislation will undoubtedly place a greater legal burden on motorists both by increasing police powers and by reducing potential defenses. What remains to be seen is to what extent these new police powers are used and how the Courts will ultimately interpret the inevitable legal challenges regarding the validity of these powers.
Arrested for impaired driving
Criminal Impaired Driving | DUI Criminal Lawyer Montreal Randi Zaritsky handles all types of impaired driving cases including DUIs, roadblocks and driving under the influence of drugs. Call (514) 944-1737.