# NEW Testing Devices for Impaired Driving



## George Wallace (20 Nov 2016)

New testing devices are being developed for use by Police forces to enforce laws regarding driving while impaired.  


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> How The New Marijuana Breathalyzers Work
> Blue Lives Matter
> By Cover Wife
> On November 19, 2016
> ...



More on LINK.

Many will say that the books are still out on whether or not these devices will accurately detect impairment.


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## Fishbone Jones (20 Nov 2016)

George Wallace said:
			
		

> Many will say that the books are still out on whether or not these devices will accurately detect impairment.



Because it is. No device has been found, legally, foolproof or enforceable yet.


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## brihard (20 Nov 2016)

Such a device is badly needed, but some solid research will have to happen first, and then there will need to be some additions to the criminal code.

Impaired driving can be slightly tricky law. For impaired driving, we in fact have two related but distinct offences in play. *Impaired Operation of a Motor Vehicle by alcohol or a drug* is exactly that; one must be _operating or in care and control of_ a motor vehicle (or train or plane or boat), and one must be _impaired_ by either alcohol or a drug. The first is relatively straight forward you are driving or are in a position to pretty immediately do so and appear to intend to. The second element requires both the impairment and the presence of either alcohol or a drug. How much of that alcohol or drug doesn't matter, but the crown must show beyond a reasonable doubt that that person's ability to operate that vehicle is impaired by that substance.

*Operation of a motor (or other) vehicle over .080 BAC* is different. Demonstrable impairment is not actually part of the offense. It suffices that you are proven to have a quantity of alcohol in your blood that meets or exceeds a level at which sound toxicological science has proven that the brain's ability to sufficiently process things is impaired such that you are a danger.

A person can be _impaired by alcohol_ well below .08. Some people can be tanked off of two drinks. Conversely, some people might blow twice the limit and not show it at all. In normal, predictable circumstances they're essentially fine, but when the brain has to process additional unexpected variables (e.g., sudden hazard or distraction) that's where the impairment is definite, however slight it may be. I know from one of my courses that I can consume nine ounces of rum in one hour, and blow .070, so short of the criminal offense of over .080. However I also know that I would definitely be impaired in my driving at fewer drinks than that becuase I can feel how that quantity of alcohol effects me.

In a vanilla impaired driving case where we see someone swerving a bit, blow a stop sign, we pull them over, they admit two drinks, we smell a bit of booze, they fail a roadside test, they come back to the station and they blow .120 and .110, they'll get charged with both 'impaired operation' (S.253(1)(a)) and 'Over .080' (S.253(1)(b)). Different rules apply if they refuse to blow, but that basically lays out how impaired driving works in plain form. 

Presently, impaired driving law also covers drugs, however there's no 'over .080' analogue. I need to be able to prove a substance is present in the body, and I need to be able to prove impairment, either through observed driving behaviour and/or physiological/behavioural effects. We have a series of tests some officers are trained to perform that can go from a roadside physical coordination test based on suspicion, to a drug recognition expert test if we have reasonable and probable grounds, and a failed DRE test results in a blood sample that goes to the lab.

We do not presently, to my knowledge, have sufficient data to determine concentrations of THC or CBD in the blood that can be conclusively said to mean that any and every person's brain is impaired in its multivariate processing like we do with alcohol. It is unquestionably possible to be impaired in your driving by marijuana. Marijuana can alter a person's state sufficiently that their ability to safely operate a motor vehicle is impaired. Right now we need to be able to suspect the presence of marijuana in a suspect, usually by smell or observed paraphenalia, in conjunction with observed behaviour/driving that gives us the indicia of impairment.

So a screening device for marijuana could fit into the existing system, with minor adaptation in law, in one of two ways:

1) A reliable roadside device that can accurately indicate the _presence_ of THC and/or CBD in the blood could prove consumption of marijuana sufficient to elevate an officer's _suspicion_ to the point of _reasonable and probable grounds_ sufficient to allow them to move to a demand that a suspect come back to the station for a Drug Recognition Expert evaluation. Such a device would replace a standardized field sobriety test- physical coordination tests, essentially. It would be less subjective than SFST, and could also help to more quickly rule out those who have _not_ recently consumed marijuana. It would not suffice on its own to prove a criminal offense.

2) A reliable instrument that can accurately and consistently indicate the _levels _of THC and/or CBD in the blood, in conjunction with sufficient data about the impact of those chemicals (separately and/or in conjunction)on the brain, could suffiice to prove actual physiological _impairment_ by that substance, allowing for the equivalent of the 'over .080' offense to be created for marijuana. This should be an ultimate goal, but will be much harder to achieve. This could _potentially_ eliminate the need for a much more intrusive blood sample to be taken for a toxicology test, at least in the case of marijuana. Developing a less intrusive means of developing that evidence is desirable from a civil liberties standpoint.

Both could be put into place, probably separately. A roadside screenign device for alcohol comes into play where we have a 'suspicion', but it's not enough to prove a crime because the devices are not calibrated before each test. The larger instruments used at the station are tested and calibrated before each test sequence, so they're good to go for criminal charges. Province the presence of marijuana is easier than proving the level thereof, so we'll probably see option 1 well before we ever see option 2.

Simple screening tests for marijuana are definitely needed. Driving high is a problem. Not as bad as alcohol or distracted driving, but definitely still a danger. Marijuana can be consumed responsibly, and I believe that it is not necessarily incompatible with being able to safely drive, but we know that it has an impact ont he brain and we need to try to continue to develop the science and validate as precisely as we can just where that is. There's a point somewhere between 'completely fine' and 'obviouslyand staggeringly baked' at which someone's use of marijuana ceases to be compatible with safe driving. Particularly with marijuana's imminent (and appropriate) legaliation, we need to figure out where that point is to reduce ambiguity.

Our entire criminal code generally and our drunk driving laws specifically need modernizing. This would be a good thing to tackle at the same time.

(Edit to add: I have necessarily simplified a few things, but nothing significant. I'm not a scientist or up to speed ont he literature, so they may be closer to this than I am aware of. Even when one study comes out and says 'at ___ parts per million of THC in the blood, a person's ability to ___ is impaired', that study will need to be peer reviewed and replicated many times over before courts will go for it. I don't know where in this process we may presently be, though I suspect it's quite early.)


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## the 48th regulator (20 Nov 2016)

:goodpost:

Well said Brihard!  Impairment, regardless of the condition (is that the correct word to use?) needs to be stopped when people are driving Motor Vehicles. Full Stop.  I support any technology that helps the police to control that.


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