or alcohol :

Since December 2018, police officers have been able to require that a driver, if legally intercepted, provide a preliminary breath sample to verify if there is alcohol in the driver’s body, without reasonable suspicion of its presence. However, a police officer who has no reason to suspect the presence of alcohol in your blood can not ask you to blow into an approved detection device if he does not have the device in his possession. If the result is FAIL, the police officer has reasonable grounds to oblige you to go to the police station to take the test by means of an approved screening device, which will determine the blood alcohol level. We intend to challenge constitutionally the power given to police officers to require any driver to blow into a device without reasonable suspicion.

Since 2012, the Supreme Court has ruled that it is up to the accused to raise a reasonable doubt regarding the proper functioning or use of the approved instrument. Given the great difficulty of fulfilling this burden, means of defenses are often, but not exclusively, found in the right to counsel, necessity, the time lapse between the arrest and the exercise of the right to counsel, or the time elapsed between the arrest and the passage of the test. With respect to care and control, the means of defense is often the fact that the accused person did not intend to drive and was waiting for someone to drive. Finally, in cases of refusal, the defense is usually the inability to breath.

For drugs :

Police can use saliva drug screens to detect the recent presence of drugs, including THC. Police may require a saliva sample if they reasonably suspect that a drug is in a driver’s body. The officer may reasonably suspect that a driver has drugs in his body based on objective facts, such as::

– eye redness;

– muscular tremors;

– agitation;

– dictional disorders

However, in Quebec there is no detection device currently approved. Thus, once the police officer can reasonably suspect that a driver has drugs in his body based on objective facts mentioned above, the officer can make him complete a test of sobriety on the side of the road. If you fail this three-step test which means you had difficulty following a pen that was moved in front of your eyes, you had trouble standing on one foot; and you were unable to walk a short distance while touching your heel with every step, he will have reasonable grounds to arrest you and will advise you of your rights to remain silent and to consult a lawyer.

If this is the case, you will have to undergo an evaluation conducted by a drug recognition expert. The expert will determine if your ability to drive a motor vehicle was impaired by a drug. You will be taken to the police station so that a drug recognition expert can conduct the assessment.

The Drug Recognition Expert will have you complete a 12-step assessment test.

These steps are as follows:

(a) a preliminary examination, which consists of measuring your pulse and determining that your pupils are the same size and that your eyes follow the same object;

(b) eye examinations, which consist of

(i) the test of the nystagmus of the horizontal gaze,

(ii) the vertical look nystagmus test, and

(iii) the lack of convergence test;

(c) the split attention tests, which consist of

(i) the Romberg equilibrium test,

(ii) the walk and turn test,

(iii) the foot test,

(iv) the finger test, which includes having to tilt the head back and touch the tip of the index finger in a specified manner while keeping the eyes closed;

(d) an examination that consists of measuring your blood pressure, your temperature and your pulse;

(e) examination of pupil size in ambient light, near total darkness and direct light and examination of nasal and oral cavities;

(f) an examination to check your muscle tone and pulse; and

(g) a visual examination of your arms, your neck and, if you are exposed, your legs looking for injection sites.

If the Drug Recognition Expert concludes that your ability to drive a motor vehicle was impaired by a drug, he or she may ask you to provide a sample of your urine for analysis to detect the presence of a drug or many of the following types of drugs in his body: depressant, inhaler, dissociative anesthetic, cannabis, stimulant, hallucinogen, and narcotic analgesic. Upon completion of these tests, the Drug Recognition Expert will be able to determine if your driving ability was impaired by a drug.

Regarding cannabis-impaired driving cases, the major issue is that there is no scientific study correlating the THC level with impairment. Alcohol is a water-soluble molecule, so it is diffused throughout the body proportionately in the breath and we are able to have something that is similar to that in the blood. As a result, we can, with a sample, have an idea of the concentration rate in a person’s brain. Inversely, THC is liposoluble, which means in certain places rich in fat as in the brain, the rate is higher than in the blood and in the breath . Thus, it is very difficult to establish.

In addition, a chronic cannabis user always has a residual level in the blood. Although this type of consumer may not be impaired at the time of arrest, he may still commit a criminal offense while driving his vehicle.

In Quebec it is even zero tolerance which implies that a person cannot drive after having consumed cannabis. With respect to the use of cannabis for medical purposes, the provincial Act will undoubtedly be constitutionally challenged to the extent that it prohibits a person who has obtained a legal authorization to consume cannabis for medical purposes from driving.

Regarding the penalties for impaired driving, if the cause is alcohol, the judge may immediately allow the convicted individual to drive provided that an alcohol ignition interlock device is installed in the car. However, if the cause is drugs, there is a total ban on driving for 1 year. We consider this to be ludicrous as the person who drove while impaired by cannabis is more severely punished than the person who drove while impaired by alcohol.

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