Drug-Impaired Driving: Consultation Document
Options for Enhancing Drug Impaired Driving Investigations
There are several legislative options for enhancing the investigating officer's ability to secure evidence and the prosecution's ability to have the evidence admitted at trial.
One option is to introduce "legal limit" offences for drugs, alongside alcohol, within paragraph 253(b) of the Criminal Code. Most U.S. states and European countries do not attempt to set specific "legal limits". A few do set "zero limits", however, there is great concern, for example, with cannabis because a zero limit overreaches the goal of sanctioning drivers who are not only using the drug but who are also impaired by the drug. With cannabis, presence may not show recent use, let alone impairment.
As many officers are now trained to administer SFST tests at the roadside, it would assist if, based upon a reasonable suspicion of a drug in the body, a peace officer with certification to administer SFST could be authorized to demand that a driver perform the SFST tests at roadside. In respect of elevating "suspicion" of a drug in the body to "reasonable grounds" to believe the 253(a) offence has occurred, this would be analogous to the demand for a breath sample on an "approved screening device", typically used with respect to paragraph 253(b) alcohol investigations (failure on the "approved screening device" is not an offence but leads to the reasonable grounds required for the officer to demand a sample of breath into an "approved instrument"). A "fail" result on SFST would not result in a charge but could provide the reasonable grounds that are needed to demand that the suspect participate in a DRE evaluation. A similar legislative proposal that may assist in alcohol impaired driving investigations would be to extend the same SFST demand, based upon a reasonable suspicion of alcohol in the body, and allow a fail result to lead to the demand for a breath sample on an "approved instrument". This could assist officers where there is no readily available "approved screening device".
Based upon a reasonable suspicion of a drug in the body, a peace officer could be authorized to demand a saliva or sweat sample at roadside. This would be analogous to the demand for a breath sample on an "approved screening device", typically used with respect to paragraph 253(b) investigations. A "fail" result would not lead to a charge. It would provide reasonable grounds to demand DRE tests. The officer needs the ability to confirm the suspicion at the roadside before continuing with a drug-impaired investigation. Testing of a saliva or sweat sample at roadside could confirm the officer's suspicion.
The choice of SFST, or a saliva or sweat swab would be left to the peace officer and not the suspect.
Also, an officer at roadside who gathers evidence (admissions or observations of indicators of impairment) and who believes on reasonable and probable grounds that a suspect was driving while impaired by a drug needs legislative authority to demand that the suspect participate in a DRE evaluation.
Based upon a reasonable belief that the driver has committed a paragraph 253(a) offence involving a drug or a combination of alcohol and a drug in the previous three hours, a peace officer could be authorized to demand that the driver accompany the officer for the purpose of providing a DRE evaluation by an officer certified to administer DRE tests. DRE test results, as with "approved instrument" results for alcohol, would be admissible in evidence, in this case to prove the paragraph 253(a) offence. (The Working Group considered the option of legislating a power of detention while the officer seeks a warrant to compel the person to participate in a DRE evaluation. There were two divergent areas of concern:
Legislation is required to permit a DRE officer to perform the DRE evaluation and compel the suspect to participate. It may also be necessary to set out in legislation or in regulations the formal process of the DRE evaluation (similar to legislation recognizing "approved instruments" for alcohol testing). The thinking is that certification to standards will ensure that the officer follows the protocol. There is a view, however that this may be overly restrictive of a process that may evolve over time and that certification of the officer could help to avoid having to set out in legislation or regulation what the various DRE steps are.
A demand for a confirmatory bodily fluid sample, based upon a reasonable belief that the driver has committed a paragraph 253(a) offence involving a drug, or a combination of alcohol and a drug, in the previous three hours, is necessary and could involve the taking of a urine sample, a blood sample or saliva sample. As with the DRE results, this result would be admissible as evidence to prove the offence, as opposed to the initial observations/SFST/saliva swab or sweat swab results that would only be used to determine whether the officer had the reasonable grounds necessary to demand the DRE tests/bodily fluid tests. Matters of continuity of exhibits, etc. appear to have been handled without difficulty in British Columbia. It is believed that a Criminal Code amendment would be required to ensure that the analyst's results may be admitted upon certificate in a trial.
There is a need to create a refusal offence related to SFST, DRE, and bodily sample demands that would parallel the refusal offences that attach to the "approved screening device" and "approved instrument"/blood sample demands currently in the Criminal Code. Without sanctions, there would be no improvement over the present situation of voluntary participation in the drug testing protocol.
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