It’s now been a little over 24 hours since cannabis was legalized, and near as I can tell, there has been no sudden carnage on the roads and highways caused by stoned drivers. Go figure. Which brings me to a bittersweet ending to my weekly series on the Drug Recognition Evaluation Program.
This week, I cover the toxicological evaluation. Or, in layman’s terms, the urine or blood test. Each of these is problematic for its own reasons.
This is another area where we see some deviation from the standardized process established for the test. While in the United States, the toxicological examination occurs as step twelve of the DRE program, in Canada the toxicological examination occurs following a demand after the eleventh step.
So instead of simply doing the blood draw or urine test, the police will have to read a separate demand under the Criminal Code for those samples to be provided. Refusal to comply with that demand can lead to a separate refusal charge, which in turn would lead to a criminal record on conviction. It is arguable that this then triggers a second obligation on the police to inform drivers of the right to counsel and allow them an opportunity to contact counsel before the samples are provided.
But why the deviation? The DRE evaluation is a search. So to conduct the search including the toxicological evaluation does not appear to offend any of the search powers in the Criminal Code. It is the same reasonable and probable ground standard necessary for taking the person back to the detachment to take the physical and medical tests. The distinction seems arbitrary and unnecessary.
Bill C-46, which includes changes to the Drug Recognition Evaluation program also permits the police new powers to take the blood samples themselves. Whereas previously the blood could only be drawn by a qualified technician under the supervision of a qualified medical practitioner, the Code has now been amended to allow police to draw the blood themselves.
Not only does this pose a host of safety risks for the police (can you imagine trying to jab a needle into someone who is high on PCP?) it also poses a number of safety risks for drivers. If the police are not following sanitary practices, or are taking the blood sample in a less-than-sanitary environment, like a jail cell, a person could end up with a communicable disease.
This also poses a new layer of problems for the police power to draw blood. The Criminal Code only permits the taking of a blood sample where to do so would not endanger the life or well-being of the person whose blood is being drawn. But if the blood draw is not done at the hospital, there is no one to make a determination that taking blood will not pose any risk. I question what training the police are receiving to make these calls.
But that does fit with the trend in the DRE protocol of assuming police are capable of acting as doctors after only a few weeks of training. Who needs medical school when you can join the RCMP!
And how many needle sticks do the police get to get it right? How many times do the police get to find a vein before they aren’t permitted to take your blood any longer? I’ve had major bruising as a result of improper needle sticks in medical evaluations. Are suspected drug impaired drivers just supposed to endure this? These answers will only come after litigation of the issue. Unfortunately, some poor soul will have to suffer physical harm before the court can address how inherently problematic this is.
Urine testing may be preferred by police to blood testing, for the sole reason that the invasiveness of the search is much less. Additionally, the health risks associated with urine testing are mitigated, but they are not eliminated.
Urine testing, though, poses some significant problems.
First, a urine sample is viable for retesting for a much shorter period of time than blood. And while police are required to take two samples of blood sot act retesting can be done by the defence if they so wish, there is no such requirement in place for urine.
The reason this becomes such a big deal relates to what can be found in the urine. Urine is basically the body’s dumpster. And when the police go dumpster diving, they are not looking for the actual concentration of a drug in the blood stream. In fact, that cannot be determined. Rather, a urine test will only reveal metabolites of drugs. Carboxy-THC is the metabolite of Delta-9-THC, and indicates past use of cannabis.
Past use does not equate to impairment. Past use does not equate to having an impermissible quantity of a drug in your body. It cannot even be connected to a particular date or time of usage, in the case of cannabis. And yet the provisions of Bill C-46 that are now law in Canada will permit the prosecution to rely on the presence of a metabolite of THC in your urine to mean that you were impaired, and specifically impaired by cannabis, at the time you drove, based on your DRE evaluation and the urinalysis.
To me, this seems rife for challenge due to the lack of any rational connection or scientific basis to draw the line between impairment and presence of a metabolite. But again, someone has to suffer through the indignity of a drug-related criminal charge to bring this challenge.
So is blood testing any better? The answer is of course not.
Not only is there the hugely problematic way in which police will be permitted to take blood samples and the harm that can arise as a result of that, but there is also a huge problem in testing blood samples for drugs.
Drugs, frequently, are not pure. They are not just cocaine or just heroin or just methamphetamine. Drugs are often cut with other substances, and the possibilities of what those substances can be are endless. This can lead to problematic results on a blood test for certain drugs.
When a blood test is done, the testing process takes place by way of Gas or Liquid Chromatography with Mass Spectrometry. The blood sample is separated into its individual molecules, which are then analyzed. So it’s a lot like building a puzzle. This many carbons and this many hydrogens and this many einsteiniums all add up to this drug. But when you throw the impurities into the mix, you’re now trying to build a puzzle without a picture for reference and with the pieces from several different puzzles.
We do not and cannot know the molecular makeup of every single substance on earth. And so the possibility of these substances looking like drugs and not being drugs is significant.
When it comes to THC this is something that is particularly problematic. THC is one of hundreds of cannabinoids. Indeed, it is possible, based on some research being done into terpenes, that we do not know all the cannabinoids that yet exist. So without this foundational knowledge, cannabinoids, or parts of cannabinoids, may be added up together to make a whole that looks like THC but isn’t.
With gas and liquid chromatography, there are also many steps in the process that can go wrong. As I’ve said before, get you a lawyer who has held a gas chromatography coil, before you go about trying to defend against a blood drug test.