The Drug Recognition Evaluation Program is going to be very important post-legalization, as officers across Canada are training at an alarming rate to become qualified in this pseudo-scientific nonsense test for drug impairment. This first post will outline what the Drug Recognition Evaluation Program is, and how it will be used when Bill C-46 becomes law.
So, on the first week of DRE-mas, your DUI lawyer gave to you: a DRE program overview.
The Drug Recognition Program was developed by the National Highway Traffic Safety Administration, working together with the Los Angeles Police Department in California, in the early 1970s. By 1979, the program was developed in full and adopted by NHTSA in the 1980s. However, the methods of data collection were poor: police officers would go down to the beaches in California, and find people who were already high on drugs. Officers who were then supposed to use the training to identify the impaired suspects were also told who took what drugs. Unsurprisingly, the officers were often right in their assessment of impairment.
Basically, it’s easy to identify impairment when you are already told a person is impaired and what is impairing them.
The purpose of the DRE is to identify those drivers who are impaired, determine whether the impairment is due to drugs or a medical condition, and if it is by drugs, the category or class of drug causing the impairment. Officers are trained that they are basically doctors for the purpose of administering the test, which is great because it’s a lot cheaper than medical school.
There are seven categories of drug in total: Central Nervous System depressants (benzodiazepines), Central Nervous System stimulants (like meth), dissociative anesthetics (such as PCP), cannabis, hallucinogens, inhalants, and narcotic analgesics (opiates). The point is that at the end of the evaluation, the officer should be able to say which of those seven categories of drugs a person is impaired by, and then that opinion will be used as evidence in court.
In Canada, the testimony of the DRE officer is accepted as expert opinion, without any need for a voir dire to determine the qualifications of the expert officer. Since the decision in the Bingley case, Bill C-46 was introduced, and sets out that not only are DRE officers experts, but also that their conclusion is proof positive of impairment by the class or category of drug that they identified, provided a blood or urine test confirms the presence of that drug. This presumption has to be rebuttable, but the manner in which it will be rebutted is completely unclear at this point in time.
There are twelve steps to the Drug Recognition Evaluation, everywhere except Canada. The steps are:
- Breath test for alcohol.
- Interview of the Arresting Officer.
- Preliminary Examination and First Pulse.
- Eye Examinations.
- Divided Attention Psychophysical Tests.
- Vital Signs and Second Pulse.
- Dark Room Examinations.
- Examination for Muscle Tone.
- Check for Injection Sites and Third Pulse.
- Subject’s Statements and Other Observations.
- Analysis and Opinions of the Evaluator.
- Toxicological Examination.
I intend to break down all of the steps of the DRE in the following weeks, in detail, to describe how they are done and how they can be done wrong and what could be done to improve them. In Canada, we do the tests slightly differently. The standard battery of tests is not followed, but a varied version is set out in the Evaluation of Impaired Operation (Drugs and Alcohol) Regulation. This is a federal regulation setting out what tests have to be in Canada.
Notably absent from the testing is the breath test. However, Section 254(3.3) of the Criminal Code allows the police to demand a sample of breath in any event, and so the breath test will be part of our discussion over the next few weeks. The most concerning absence, however, is the absence of a required interview of the subject. And while this is likely due to the fact that it would be inconsistent with Charter rights to compel a person to participate in an interrogation, the statements are very useful.
When I was trained about the Drug Recognition Evaluation Program by Dr. Lance Platt, he informed us that the interview is the most important aspect of the DRE Evaluation. When someone says they smoked cannabis two hours before driving, that provides valuable insight, obviously, into their potential state of impairment, and what category or class of drugs may be impairing them.
It appears to be a trade off made by government to respect Charter rights, but the tradeoff has a consequence in relation to the reliability of the test. None of the so-called “validation studies” (which are not peer-reviewed or published in respectable journals) have suggested that without the interview the DRE is a workable program, much less conducted properly. And if we are going to use this as presumptive proof of impairment, is it not better to use a program that has been properly designed?
So as you are reading this series over the next twelve weeks, think about whether the DRE will actually be effective as a presumptive indicator of impairment in Canada or not.
My view is it won’t be. But you probably already knew that.