Drugged drivers are a deadly menace that must be removed from our roads.
But recent proposals won’t get the job done.
While it’s difficult under current laws to convict a drugged driver, we must be cautious that if the laws are revised, they do not become unreasonable.
A recent report by two law professors from the University of Western Ontario in London recommends changes in the law that teeter on the unreasonable.
One recommendation is to give police the power to obtain roadside saliva tests — much the same as roadside breathalyzer tests for suspected drunk drivers.
But it’s one thing to blow into a breathalyzer. Obtaining bodily fluids from a suspect is a different kind of intrusion — and it would be closely scrutinized by the courts, particularly because it also gives police the opportunity to build a DNA bank.
Bill C-2 gives police authority to demand blood or urine tests from suspected drug drivers. But medical personnel recognized by the courts to conduct such tests are not obligated under the law to perform the tests despite an officer’s demand. And if such tests were taken, they likely shouldn’t be taken on unsanitary roadsides.
So courts would be reluctant to accept roadside mucus tests. The possibility of contamination is too great.
And delivering such evidence to laboratories again brings into question the possibility of contamination. The delicacy and complexity of any process precludes a police role in either taking, transporting or analyzing samples. It makes no sense to force officers who already have too much on their plates to take on these tasks, and to provide the training necessary to ensure samples are beyond reproach.
A failure on the roadside breathalyzer test means an automatic driving suspension. But the same could not apply to suspected drugged drivers since no legal testing device has yet to be developed to give instant results. That proof is up to the medical labs to determine, and that could take days or even weeks.
Then there’s the question of saliva heading to the DNA data banks, regardless of the results of drug testing. The law would have to specifically state that samples be used only for drug analysis purposes and nothing else. Likely, they would have to be destroyed after testing, to protect everyone.
A recent Mothers Against Drunk Drivers report condemns the current laws, calling them inadequate in keeping drug users from driving. It noted that few convictions have been handed out, and cited an example where a Saskatchewan judge acquitted a suspect despite the driver having failed physical co-ordination tests and whose urine showed marijuana use.
At this point, however, there are no guidelines to specify when a marijuana user is over the limit. And in fact, marijuana residual can remain in the body for a month, and heroin, as another example, lingers for a week.
So the presence of drugs does not necessarily constitute proof of incapacitation.
In their report, university researchers Robert Solomon and Erika Chamberlain claimed enforcement of the law was “grossly under funded.”
“While long overdue (for a change), the current enforcement approach is cumbersome, expensive and time-consuming . . . federal and provincial governments need to restructure their approach to drug-impaired driving.”
They are right: the system, as it exists, is not conducive to a crackdown on driving while drugged.
“I think in their (the government’s) zeal to pass the law, they’ve simply put together an ineffective piece of legislation that has the advocates celebrating today because they don’t realize how threadbare it really is,” said Alan Young, a criminal lawyer and professor at Toronto’s Osgoode Law School.
We want every kind of incapacitated driver off the roads. We want no more deaths because drunks and users made selfish, stupid choices. But we need to attack the problem of apprehending and convicting drugged drivers with a thorough, workable plan.
To this point, we don’t have one.
Rick Zemanek is a former Advocate editor.