# Police opinion deemed expert evidence in drug-impairment trials, SCC rules



## trooper142 (23 Feb 2017)

Hot off the press today from the Supreme Court!

Very good news!

http://www.ctvnews.ca/canada/police-opinion-deemed-expert-evidence-in-drug-impairment-trials-scc-rules-1.3297748

A police officer’s opinion about a driver’s level of impairment can be admitted as expert testimony at drugged-driving trials without prior examination of the evidence, the Supreme Court of Canada has ruled.

Police officers can administer field sobriety tests for suspected drug impairment, but unlike alcohol, there’s currently no roadside test such as a breathalyzer.

There is also no legal blood-concentration driving limit for marijuana or other drugs. Therefore, in drug-impairment cases, the courts must rely on the specially trained police officers known as drug recognition experts, or DREs, sometimes referred to as evaluators. Police officers train to become DREs through a 12-step program that includes tests on an individual’s eyes, attention, blood pressure and pulse.

Related Links

SCC judgment - R. v. Bingley 

Supreme Court of Canada  
A police officer’s opinion about a driver’s level of impairment can be admitted as expert testimony at drugged-driving trials without prior examination of the evidence, the Supreme Court of Canada has ruled. 

In its 5-2 decision released Thursday, the Supreme Court ruled that an evaluator’s opinion can be admitted as expert evidence at trial without first submitting to a voir dire, or preliminary examination of the evidence.

That means that DREs can essentially avoid being subject to attacks on their credibility by defence lawyers in a voir dire scenario, says CTV legal analyst Edward Prutschi.

“That goes a long way towards getting a conviction,” Prutschi told CTV News Channel Thursday. “Makes it very difficult for defence lawyers like myself, (but) not impossible.”

The ruling could effectively mean quicker trials for cases of suspected drug-impaired driving, since the ruling gives legal weight to DREs’ testimony.

“They are considered experts, their opinion is given the weight of expertise in court,” Prutschi said.

He said that the people “who are happiest about this are going to be police officers and Crown prosecutors because it does pave a path for easier prosecution of drug-impaired driving, which … is becoming an increasingly difficult problem to deal with.

“And in particular, when we start talking about blending that with some form of decriminalization or legalization of marijuana, the likelihood that we’re going to see more and more of that, is a real concern to police forces all across Canada.”

The decision means the case involving Carson Bingley of Ottawa will proceed to a third trial. In 2009, Ottawa police charged Bingley with driving while impaired after he cut off a driver, crossed the centre line nearly colliding with oncoming traffic. He later struck a car in a parking lot.

An officer on scene said Bingley showed signs of intoxication, however, an alcohol screening test found his blood-alcohol concentration well below the legal limit.

Bingley failed a standard field sobriety test administered by a DRE at the scene. “When he failed the sobriety tests, Mr. Bingley was charged with driving while drug impaired,” a case summary notes.

Bingley admitted to taking two Xanax and smoking marijuana in the 12 hours before he was stopped by police. The DRE decided Bingley’s ability to drive was impaired by marijuana use. A urine test revealed the presence of cannabis, cocaine and Alprazolam.

Bingley was acquitted in an Ontario court, and a summary conviction appeal led to the acquittal being overturned and a new trial being ordered.

There, a second judge ruled that the DRE evidence could be admitted without a voir dire. However, on the voir dire, the judge determined that the DRE evidence was inadmissible, and Bingley was again acquitted.

The Crown’s appeal of that decision will now go to trial.

"Driving while impaired by drugs is a dangerous and, sadly, common activity, prohibited by the Criminal Code," Chief Justice Beverley McLachlin wrote in an explanation of the Supreme Court ruling. "Parliament long ago established a regime to enforce the law against alcohol-impaired driving, with breathalyzer testing and analyst certification at its centre. Enforcing the offence of drug-impaired driving was more elusive."

In her dissenting reasons, however, Justice Andromache Karakatsanis said that the 12-step evaluation used by DREs should be viewed as a tool for investigators, not as “an evidentiary shortcut at trial.”


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## kratz (24 Feb 2017)

I agree with providing LEOs with the tools to assess this issue. I disagree with considering LEOs experts, thus granting nearly uncontestable status. Slippery slope IMO


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## ModlrMike (24 Feb 2017)

trooper142 said:
			
		

> ...the courts must rely on the specially trained police officers known as drug recognition experts, or DREs, sometimes referred to as evaluators. Police officers train to become DREs through a 12-step program that includes tests on an individual’s eyes, attention, blood pressure and pulse.



This part might temper your fears.


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## brihard (24 Feb 2017)

kratz said:
			
		

> I agree with providing LEOs with the tools to assess this issue. I disagree with considering LEOs experts, thus granting nearly uncontestable status. Slippery slope IMO



To be perfectly blunt, I don't think you have an informed opinion on this one.

Drug Recognition Experts (DREs) dont do what they do based off some four hour e-learning course. To get selected, firstly they typically have to have an established record of doing impaired driving files, and most are already breath technicians before getting DRE. They then do a three week course in the US with a very solid theoretical component based on a lot of science and research into the physiological effects of various drugs on the body, and they also do evaluations on in-custody volunteers who are under the influence of various drugs.

To even get to the point where a DRE is used, an officer on the road has to have reasonable and probable grounds to believe that a person is operating or has care and control of a motor vehicle, and that their ability to do so is impaired by drugs. That officer, based on their own knowledge and experience and their observations of driving and personal behaviour already has to believe that that person can be arrested for impaired driving. At that point they demand that the person submit to a DRE evaluation.

A DRE evaluation, in turn, tests a number of physiological indicators- stuff a person cannot control, things like certain eye movements, etc. The DRE evaluation does not in and of itself suffice to lay charges. What it does is it develops the necessary grounds for the DRE to then require the suspect to submit to the more intrusive search of providing a blood sample. That blood sample then goes to a lab, and a toxicological examination determines the presence, if any, of blood in the system.

So you have an officer's roadside observations -> An officer forming grounds to believe and impaired driving offence has been committed -> a DRE demand being made -> a DRE evaluation being done -> DRE forming grounds to demand a blood sample -> Blood being tested in a lab -> Charges being laid if the toxicology analysis supports the presence of drugs in conjunction with the original investigating officer's observation of driving impairment.

A DRE is essentially the investigative analogue to the breath testing machine at a police station used for alcohol impaired driving. DRE evaluations are not simply some sort of half baked witchcraft. The science has been tested over and over and validated, and the officers get considerable training to have that skillset.


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## mariomike (24 Feb 2017)

For reference to the discussion,

Drug Recognition Expert
http://www.rcmp-grc.gc.ca/ts-sr/dre-ert-eng.htm

Impaired driving investigations are technically complex and can involve both drugs and/or alcohol.

The RCMP and other police agencies across Canada conduct enforcement of drug impaired driving using Drug Recognition Experts (DRE).

DREThe Drug Evaluation and Classification Program (DEC) was founded in Los Angeles in the 1970s. At that time, peace officers were routinely arresting drivers that showed gross signs of impairment but who were not under the influence of alcohol. The LAPD used Standardized Field Sobriety tests in conjunction with accepted medical knowledge to devise a step-by-step procedure to enable them to determine drug influence. When a person is suspected of drug use, they are evaluated based on seven drug categories (central nervous system (CNS) depressants, inhalants, dissociative anaesthetics, cannabis, CNS stimulants, hallucinogens and narcotic analgesics). During the evaluation the DRE must also determine if the person may be suffering from another condition which may cause signs of impairment (illness, fatigue, mental condition, etc).

The DRE program was introduced in British Columbia in October 1995 with the first national course being delivered in January 2003. The program received legislative support in July 2008 when changes to the Criminal Code came into force making the drug evaluation compulsory by way of a demand. The legislation calls for drivers to submit to standardized field sobriety tests (psycho-physical coordination tests) which are performed on the road side. If there is evidence of impairment, the driver must accompany the officer to the police station for further evaluation of drug influence by an officer trained in the DRE program.

The DRE program is governed by the International Association of Chiefs of Police and is primarily used in Canada and the United States. There are currently more than 8000 DREs worldwide.


Drug Recognition Expert Evaluations  
http://www.rcmp-grc.gc.ca/ts-sr/dree-eert-eng.htm

When a police officer suspects that a person is impaired by alcohol and or drugs, he or she will conduct a series of tests to determine if there are probable grounds to conduct further testing. A police officer may use a divided attention test battery known as the Standardized Field Sobriety Tests or SFSTs. This series of tests has undergone a number of field validation studies in the United States and Canada that have shown it produces accurate indicators of a blood alcohol level of 80mg% (.08) or greater. In addition, the tests do show impairment that can be caused by other things such as prescription or illicit drugs. The SFST test battery consists of examining eyes, the Walk and Turn test and One Leg Stand test.

The evaluation of a suspected drug impaired driver is conducted by an evaluator who is accredited by the International Association of Chiefs of Police, through the RCMP. The Drug Recognition Expert (DRE) uses a 12-step procedure in performing the evaluation. These steps are:
1.Breath test to rule out alcohol as the primary cause of impairment
2.Interview of the arresting officer
3.Preliminary examination (includes the first of three pulse checks)
4.Eye examinations (Horizontal Gaze Nystagmus, Vertical Gaze Nystagmus and the ability of the eyes to converge)
5.Divided attention tests (SFSTs plus finger to nose and Modified Romberg balance test)
6.Clinical indicators examinations (blood pressure, temperature, second pulse)
7.Darkroom examination of pupil sizes (also includes examination of nasal and oral cavities)
8.Muscle tone examinations
9.Search for and examination of injection sites
10.Statements and interview of the suspect
11.Opinion of the DRE
Based on the totality of the evaluation, the DRE forms an opinion as to whether or not the subject is impaired. If the DRE determines that the subject is impaired, the DRE will indicate what category or categories of drugs may have contributed to the subject's impairment. The DRE bases these conclusions on his training and experience and the DRE Drug Symptomatology Matrix. While DREs use the drug matrix, they also rely heavily on their general training and experience.
12.Toxicological sample (urine and oral fluid or blood)
 After the evaluation, the toxicological sample is sent to a forensic laboratory for analyses to confirm or refute the findings of the evaluator. The mere presence of a drug in the sample does not constitute sufficient evidence to charge a person as being impaired by a drug. The evaluation must show impairment, signs and symptoms consistent with one or more drug categories, and the evaluator's findings must be supported by the toxicology.


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## kratz (24 Feb 2017)

Brihard,

Thank you for the condensed version. You are right, in that I do not have an informed opinion, but when the general public reads this information in the news, they are often at the same disadvantage.

I'm glad we have a form here where I / we can learn more about these topics. 😀


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## GAP (24 Feb 2017)

Brihard said:
			
		

> To be perfectly blunt, I don't think you have an informed opinion on this one.
> 
> Drug Recognition Experts (DREs) dont do what they do based off some four hour e-learning course. To get selected, firstly they typically have to have an established record of doing impaired driving files, and most are already breath technicians before getting DRE. They then do a three week course in the US with a very solid theoretical component based on a lot of science and research into the physiological effects of various drugs on the body, and they also do evaluations on in-custody volunteers who are under the influence of various drugs.



 :goodpost:


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## Colin Parkinson (24 Feb 2017)

So as i understand it, there are 8,000 DRE qualified police officers worldwide, wiki says there were just over 69,000 PO's in Canada in 2012, that would mean very few officers are qualified DRE, is that correct?


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## brihard (24 Feb 2017)

Colin P said:
			
		

> So as i understand it, there are 8,000 DRE qualified police officers worldwide, wiki says there were just over 69,000 PO's in Canada in 2012, that would mean very few officers are qualified DRE, is that correct?



That's correct. Most will be offices working normal patrol / traffic duties who, as needed, will be called back to the station to perform an evaluation.

Every officer gets some training (and develops experience) in recognizing indicia of impaired driving. Many/most depending on the police service in question will be qualified to administer roadside breath tests, andor standardized field sobriety tests (physical coordination). Those two skill sets help an officer to move from 'reasonable suspicion' to 'reasonable and probably grounds to arrest'. In the case of alcohol impaired driving, that then means a breath test on a more precise instrument, administered by a qualified breath technician (I am one), and in the case of drug impaired driving, a breath test to rule out alcohol and then a DRE evaluation. DRE is basically the highest qualification a police officer will get for impaired driving investigative techniques. There are definitely parts of Canada where DREs are not available, such as in more remote areas policed by RCMP/SQ/OPP. In other cases DREs may not be on shift but will be called in on overtime. The last place I worked had about 40~ officers, and only one DRE.


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## dapaterson (24 Feb 2017)

The article title is misleading; the SCC ruled that qualified police officers are deemed to be providing expert evidence; as written, the title suggests that all LEOs are deemed expert in this domain, which is not the case.


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## Colin Parkinson (24 Feb 2017)

Brihard said:
			
		

> That's correct. Most will be offices working normal patrol / traffic duties who, as needed, will be called back to the station to perform an evaluation.
> 
> Every officer gets some training (and develops experience) in recognizing indicia of impaired driving. Many/most depending on the police service in question will be qualified to administer roadside breath tests, andor standardized field sobriety tests (physical coordination). Those two skill sets help an officer to move from 'reasonable suspicion' to 'reasonable and probably grounds to arrest'. In the case of alcohol impaired driving, that then means a breath test on a more precise instrument, administered by a qualified breath technician (I am one), and in the case of drug impaired driving, a breath test to rule out alcohol and then a DRE evaluation. DRE is basically the highest qualification a police officer will get for impaired driving investigative techniques. There are definitely parts of Canada where DREs are not available, such as in more remote areas policed by RCMP/SQ/OPP. In other cases DREs may not be on shift but will be called in on overtime. The last place I worked had about 40~ officers, and only one DRE.


Interesting, one would think the cost of training more might be worth it in saved OT in the long run.


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## Lawrence (24 Feb 2017)

Colin P said:
			
		

> Interesting, one would think the cost of training more might be worth it in saved OT in the long run.



Sadly its not the cost of the OT its finding a place that we can do actual evaluations on people.  At this time there is no where in Canada that allows us to do this.  There are two jails in the U.S.A. that allows the DRE course to continue, so not as much the money, as it is trying to find training time at one of the two facilities.


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