Analyst: New drugs and driving law a 'strong, positive step'

Recent amendments to the Criminal Code contained in Bill C-2 give police new powers to deal with drivers suspected of being under the influence of drugs. Alan Young, a criminal lawyer and a professor at Toronto's Osgoode Law School, told CBCNews.ca in a July 10 interview what he believes to be the possible complications from the new law.

Doug Beirness of the Canadian Centre on Substance Abuse has a different take on the legislation. He says the changes will provide powers and tools necessary to help deal more effectively with impaired drivers. Here is his view:

There are many contentious issues in drug policy. Regardless of whether one leans towards the "legalization" or the "total abstinence" end of the policy spectrum, however, virtually all will agree that operating a motor vehicle while impaired by drugs (or alcohol, or both) is a high-risk activity that poses a danger to pedestrians and other drivers and needs to be curtailed.

In Canada, studies indicate that drugs, either alone or in combination with alcohol, are found in up to 30 per cent of fatally injured drivers. The sheer magnitude of the situation demands that action be taken to reduce the problem. Bill C-2 is a very strong, positive step in this direction.

In his July 10 comments, Professor Alan Young suggests that the new drugs and driving legislation is premature and that we should wait until such time as research has established a threshold concentration value of drugs similar to the 80 milligrams per decilitre limit for alcohol.

The alcohol limit is essentially a convenience — a legal shortcut — that avoids the necessity to prove that the driver was impaired in order to proceed with impaired driving charges. It was established as a result of years of scientific research that clearly established that virtually all drivers show impaired performance at this alcohol level and that the risk of crash involvement begins to increase exponentially at levels in excess of 80 milligrams per decilitre.

At this point, there is no consensus on a similar limit for any drug. The research required to establish such a limit is complex and faces numerous logistic and ethical barriers.

However, this does not mean that Canada has a de facto zero tolerance policy towards drugs and driving. It is not necessarily a crime to operate a vehicle after taking a drug or medication any more than it is necessarily a crime to drive after having a glass of wine. It is, however, a crime if the extent of drug and/or alcohol consumption impairs one's ability to drive safely.

Levelling the playing field

Driving while one's ability is impaired by drugs has long been a criminal offence in Canada. But whereas drivers are required to provide a breath sample to determine the extent of their alcohol use, there has not been a comparable requirement for drivers to submit to tests to determine drug use. Many drivers, particularly young drivers, were well-aware of the limitations of the police in terms of their ability to enforce drugged driving laws and rates of driving after using drugs escalated accordingly.

The provisions of Bill C-2 have levelled the playing field for alcohol- and drug-impaired driving.

'An important aspect of this new legislation is that the focus is on impairment, not simply drug use.' —Doug Beirness

As of July 2, drivers suspected of driving while impaired by drugs are required to perform physical tests of impairment (the Standardized Field Sobriety Test or SFST) and, if evidence of impairment is found, to accompany the officer to the station and submit to an examination by a specially-trained Drug Recognition Expert using the systematic and standardized procedures of the Drug Evaluation and Classification (DEC) program.

This 12-step procedure includes examinations of the eyes, tests of physical coordination, measurements of temperature, pulse and blood pressure and an interview, and concludes with the demand for a sample of bodily fluid to be sent to the laboratory for analysis of drug content. Most drugs that can impair driving can be measured in samples of bodily fluid such as blood, urine or oral fluid. And while blood remains the medium of choice for drug testing, it has the disadvantage of requiring a medical practitioner to take the sample.

The DEC program was developed in Los Angeles in the 1970s and is now used throughout the United States. The program was introduced in Canada in 1995 and there are currently 360 officers trained in the procedures, 226 of whom are fully certified as Drug Recognition Experts. This year, 192 more will undergo the intensive two-week training program. Expanding the number of officers certified to conduct these investigations is a key component in the overall deterrent value of this legislation. 

Our research on the DEC program over the past several years shows it to be an extremely accurate and reliable tool. A detailed analysis of 1,349 cases determined that the DEC procedure correctly identified the category of drug(s) used by the subject 92 per cent of the time. 

In only nine cases (less than one per cent) did toxicology tests fail to find evidence of the drug indicated by the officer who performed the DEC examination (i.e.: false positives).  In 61 cases (4.5 per cent), the toxicology report found drugs present that were not indicated by the DEC examination (false negatives, or misses).  In neither case is it likely that these drivers would be charged.

Impairment evidence first and foremost

An important aspect of this new legislation is that the focus is on impairment, not simply drug use. The officer must first establish reasonable and probable grounds of impairment. Only then can the driver be taken to the station for a DEC examination and only then can the officer demand that the individual provide a sample of bodily fluid for analysis.

The legislation is designed to remove drivers from the roads whose ability to operate a vehicle safely is impaired by drugs and/or alcohol. Evidence of impairment is first and foremost; testing for the presence of drugs is secondary. Fears of being charged as a result of bodily fluid tests revealing drug use days or weeks ago are grossly overstated. That's because the officer must first establish that the driver is impaired and only then can the individual be tested for drugs.

The new legislation and the procedures used to enforce it may not be perfect. There will be challenges — both practical and legal. These challenges, however, should not be used as an excuse for inaction.

The provisions of Bill C-2 that came into force on July 2 are one piece of what should be a comprehensive strategy to deal effectively with drug-impaired driving that also includes enforcement, education, prevention, and rehabilitation.

There is a need to act now, to do everything we can to help rid our roadways of dangerous drivers whose abilities have been compromised by the use of drugs and/or alcohol. Drivers need to know that operating a vehicle while impaired by drugs and/or alcohol is not only dangerous and illegal, but that police officers in Canada now have the authority and the tools to help ensure that offenders are identified, charged, and punished.

Doug Beirness is the senior research and policy analyst and adviser with the Canadian Centre on Substance Abuse. For the past 25 years, his research has focused on alcohol- and drug-impaired driving.