Driving while high after cannabis legalization
Enforcement remains unchanged, impaired driving is based on the ‘physical indicia of impairment’
HAMILTON
POLICE are training as many officers “as we can get through the course” to be drug recognition experts in the lead-up to recreational cannabis legalization, says Chief Eric Girt.
Yet, despite that push, little is actually changing around how Hamilton police plan to enforce impaired driving — because it’s already illegal to drive high.
“One of the pieces of misinformation that I continue to harp on is that it’s always been illegal to drive while you're impaired by drugs,” Girt said during an interview about how the police service is preparing for Oct. 17 legalization. That’s true of illicit drugs, prescription medication and cannabis.
Police have always charged people with impaired driving based on the “physical indicia of impairment,” he said. This includes looking for swerving, driving too fast or slow, mounting curbs, collisions, and physical signs on a person such as slurred speech, slow response, fumbling with documents or unsteady walking.
“The issue isn’t the specific drug, it’s the impairment behind the wheel,” he said, adding that continues to be the focus of Hamilton police and what he’s working to instil in front-line officers.
The federal government has set driving blood concentrations for Tetrahydrocannabinol (THC) — the psychoactive compound in cannabis. It’s illegal to drive with 5 nanograms (ng) of THC per millilitre (mL) of blood, and to have at least 2.5 ng/mL when combined with alcohol. These
“The issue isn’t the specific drug, it’s the impairment behind the wheel.” ERIC GIRT Chief, Hamilton police
are charges in addition to the existing impaired driving laws.
The new blood concentrations have drawn criticism from lawyers, civil liberties associations and researchers who say the issue hasn’t been studied well enough to say at what level people are actually impaired. This may be of particular concern for chronic users, as some fear people may be unfairly charged.
Girt agreed there are often other factors that contribute to impairment including sleep, food, interaction with other products and individual tolerances. That reaffirms why he wants his officers to focus on signs of impairment.
The legislation is supported by Mothers Against Drunk Driving.
But unlike alcohol there is not yet an approved screening technology. The Draeger DrugTest 5000 is widely used elsewhere and was recommended by the Canadian Society of Forensic Science. Canada’s attorney general is reviewing the tool and expected to say later this month whether it will be approved here.
Presently, officers who pull over a suspected impaired driver use the standard field sobriety assessment — basically looking for signs of impairment such as looking at the person’s eyes, and the walk and turn test.
In the case of alcohol, all the officer needs is “reasonable suspicion” to ask for a breath test. With cannabis, the legislation says police need “reasonable grounds,” which is a higher standard.
If there are “reasonable grounds” the suspect can be taken back to the police station for a more detailed 12-step evaluation by a drug recognition expert (DRE).
Girt said very rarely, and typically only in cases involving death or very serious injury, would they take blood to test someone’s drug level. Police need to prove that taking blood cannot interfere with someone’s health as determined by a medical professional.
Hamilton has had certified DRE officers for nearly a decade — the course run by the Ontario Police College follows a program and standards set by the International Association of Chiefs of Police, and first developed in the United States.
The service has 52 DRE trained officers, and about 60 more officers are expected to be trained when instructors return to Hamilton for three courses in the fall.
It’s a detailed and time-consuming course, which is why many police services across Canada have not been able to train as many officers as quickly as they would like. Last month the Canadian Association of Chiefs of Police warned that it’s unlikely to reach its goal of having 2,000 officers across the country trained to detect drug-impaired drivers by legalization.
“We already have drug recognition experts, it would be nice to have more, but it’s not like every
officer is going to be a drug recognition expert,” Girt said. “It’s like our breath techs, you have to look at what’s reasonable in terms of staffing specialized areas.”
However, with more training officers are better recognizing the signs of drug impairment and the charges for impaired driving by drugs are up slightly, even before legalization takes effect. Last month Hamilton police said they’d charged 32 people in the first six months of this year, surpassing the 29 people charged at the same point of both 2016 and ’17, respectively.
It’s impossible to say whether legalization with significantly alter how many Canadians consume cannabis and whether more will drive high.
“Will we have an actual increase? We don’t know,” Girt said.
Studies in other small jurisdictions have seen varying results.
“I think the biggest piece on legalization of cannabis is, I don’t think, to my knowledge, that there’s been a geographic country this large ... where they’re going to legalize,” he said.