Police need Reasonable Suspicion for a Roadside Drug Test

The standard for demanding a roadside drug test in Canada is higher than for a roadside breath test.  On December 18, 2018, our laws changed to remove the requirement that police must have ‘a reasonable suspicion that a driver consumed alcohol’ before demanding a roadside breath test. As a result of this change, police can now demand a breath sample from any driver who was lawfully pulled over, regardless if there is any evidence that the driver had been drinking.

However, the requirement for demanding a roadside drug test has not changed, and police continue to need grounds to form a reasonable suspicion that a driver has consumed a drug before they can demand an oral fluid sample or further drug testing. The following observations are commonly relied on by police as signs that a driver is impaired by drugs.

• red eyes
• muscle tremors
• agitation
• abnormal speech patterns

If indicators such as these have given a police officer grounds to form a reasonable suspicion that a driver has consumed drugs, the officer may demand that the driver submits to a standard field sobriety test (SFST) and may test the driver’s saliva using an oral fluid drug screener. Police officers may also make a demand for a Drug Recognition Expert Evaluation (DRE).

The roadside drug screening device currently approved for use in Canada is called the Draiger DrugTest 5000 and the results of the test will indicate a positive or negative response for the presence of certain drugs, including THC and cocaine.  This is the only device currently licenced for roadside drug testing in Canada, although critics have pointed out that the Draiger DrugTest 5000 occasionally reports false positives and doesn’t always function well in the cold.

Getting a positive result on the DrugTest 5000 doesn’t prove that a driver is impaired – this device is just one of the tools used by police in establishing grounds to detain a driver for additional tests that may prove impairment.  If the oral fluid drug screener indicates the presences of drugs and there are other signs of drug use or impairment, the police may have grounds to make a demand for a blood sample.  Of course, police may also form a reasonable suspicion that a driver is impaired ‘the old-fashioned way’, for example, if they see drug paraphernalia in the car and the car smells strongly of weed.

Penalties for Drug-impaired Driving

THC is the main psychoactive ingredient in cannabis, and there are two prohibited levels of THC for anyone driving in Canada: 1) 2 to 5 ng; and 2) 5 ng or more.

Below are the penalties for persons convicted of drug impaired driving.  All of these impaired driving charges stipulate that it is an offence to have consumed the specified amount of drugs or alcohol within 2 hours of driving.

• Between 2 and 5 nanograms (ng) of THC per 1 ml of blood is a lesser charge, and is punished as a summary conviction offence with a fine of up to $1000.

The following drug-impaired driving actions are considered more serious offences and all carry a maximum jail sentence of 10 years.  And, if it’s your first offence, you also face a mandatory minimum fine of $1000.  A second offence carries a mandatory minimum jail sentence of 30 days, and a 3^rd offence carries a mandatory minimum jail sentence of 120 days.

• Having 5 ng or more of THC per 1 ml of blood.
• Having the following combination of drugs and alcohol in your system: a blood alcohol level (BAC) of .05 or more and 2.5 ng or more of THC.
• Driving with any detectable amount of any of the following drugs:
  • LSD
  • cocaine
  • Methamphetamine or 6-man (a metabolite of heroin)
  • Psilocybin
  • Psilocin or magic mushrooms
  • Ketamine
  • PCP
• Having 5 mg or more of GHB per 1 litre of blood.

Also, refusal to comply with a demand for fluids will result in a mandatory minimum $2000 fine for a first offence, and jail time for repeat offences.

If you were detained or charged with drug impaired driving, seek help from an experienced Toronto impaired driving lawyer who well understands the legal arguments and evidence needed in building a strong defence and winning an acquittal.