CCSA-Drug-per-Se-Laws-Policy-Brief-2014-en
CCSA-Drug-per-Se-Laws-Policy-Brief-2014-en
CCSA-Drug-per-Se-Laws-Policy-Brief-2014-en
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www.ccsa.ca • www.cclt.ca<br />
<strong>Se</strong>pt. <strong>2014</strong><br />
<strong>Policy</strong> <strong>Brief</strong><br />
<strong>Drug</strong> Per <strong>Se</strong> <strong>Laws</strong><br />
Key Considerations<br />
Despite the inher<strong>en</strong>t difficulties associated with establishing <strong>per</strong> se drug laws, there is suffici<strong>en</strong>t<br />
evid<strong>en</strong>ce to move forward with the following actions:<br />
<br />
<br />
<br />
<br />
<br />
Implem<strong>en</strong>t <strong>per</strong> se drug laws for certain substances as part of a compreh<strong>en</strong>sive approach to<br />
drug-impaired driving that includes <strong>en</strong>hanced training of all police officers in the recognition<br />
of symptoms of drug use and a strong <strong>Drug</strong> Evaluation and Classification (DEC) program, as<br />
well as support from the toxicology labs across the country.<br />
Establish a <strong>per</strong> se limit for cannabis (Δ 9 -tetrahydrocannabinol) in the range of 3–5 ng/mL in<br />
whole blood.<br />
Establish a zero tolerance policy for a limited number of substances, the effects of which are<br />
incompatible with the o<strong>per</strong>ation of a vehicle (e.g., LSD, PCP, ketamine).<br />
Develop standards for id<strong>en</strong>tifying those medications that have the pot<strong>en</strong>tial to impair<br />
<strong>per</strong>formance to help create guidelines for labelling products and providing information to<br />
pati<strong>en</strong>ts on the risks associated with o<strong>per</strong>ating a vehicle while taking medications.<br />
To aid in the <strong>en</strong>forcem<strong>en</strong>t of drug impaired driving laws, support the further developm<strong>en</strong>t and<br />
implem<strong>en</strong>tation of roadside oral fluid scre<strong>en</strong>ing devices to detect the pres<strong>en</strong>ce of specific<br />
drugs.<br />
The Issue<br />
There are two basic types of laws for dealing with impaired drivers. The first type is a behavioural<br />
impairm<strong>en</strong>t law whereby it must be demonstrated that the driver’s ability to o<strong>per</strong>ate a vehicle is<br />
impaired by alcohol or a drug. The second type is known as a “<strong>per</strong> se” law whereby it is an off<strong>en</strong>ce to<br />
o<strong>per</strong>ate a vehicle with a conc<strong>en</strong>tration of alcohol or drugs in the body in excess of a specified<br />
threshold value. A special form of <strong>per</strong> se law sets the threshold value at zero, which is oft<strong>en</strong> referred<br />
to as “zero tolerance.”<br />
Per se laws provide a legal shortcut, ess<strong>en</strong>tially eliminating the requirem<strong>en</strong>t to prove the driver’s<br />
ability was impaired. Theoretically, it is only necessary to prove that the driver had an alcohol or drug<br />
conc<strong>en</strong>tration in excess of the statutory threshold. Per se laws for drugs are oft<strong>en</strong> viewed as a more<br />
effici<strong>en</strong>t and effective means of dealing with drug-impaired drivers than the curr<strong>en</strong>t system that<br />
requires evid<strong>en</strong>ce of impairm<strong>en</strong>t.<br />
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Background<br />
Canada has had an alcohol <strong>per</strong> se law since 1969. <strong>Se</strong>ction 253b of the Criminal Code makes it an<br />
off<strong>en</strong>ce to o<strong>per</strong>ate, or have care or control of, a vehicle with a blood alcohol conc<strong>en</strong>tration (BAC) in<br />
excess of 80 milligrams of alcohol in 100 millilitres of blood (80 mg/dL). This level of alcohol is<br />
deemed to be consist<strong>en</strong>t with significant psychomotor impairm<strong>en</strong>t and increased risk of crash<br />
involvem<strong>en</strong>t. It is also an off<strong>en</strong>ce to o<strong>per</strong>ate a vehicle while one’s ability to do so is impaired by<br />
alcohol, a drug or a combination of alcohol and a drug (<strong>Se</strong>ction 253a of the Criminal Code).<br />
Canada curr<strong>en</strong>tly has no <strong>per</strong> se limit for any drug other than alcohol. <strong>Drug</strong>-impaired driving requires<br />
evid<strong>en</strong>ce of behavioural impairm<strong>en</strong>t. Proving to a court that the driver was impaired has always had<br />
its chall<strong>en</strong>ges, regardless of whether the impairm<strong>en</strong>t was the result of alcohol or drugs. In 2008,<br />
parliam<strong>en</strong>t <strong>en</strong>acted legislation providing police with new investigative tools to facilitate the detection<br />
of drivers who were impaired by the use of drugs other than alcohol. Officers trained and certified in<br />
the <strong>Drug</strong> Evaluation and Classification (DEC) program, known as <strong>Drug</strong> Recognition Ex<strong>per</strong>ts or DREs,<br />
could demand that a driver suspected of using drugs submit to a series of tests to determine (a)<br />
whether he or she was impaired and (b) the most likely class or classes of drugs responsible for the<br />
observed impairm<strong>en</strong>t. The evaluation includes a demand for a sample of blood, urine or oral fluid to<br />
be analyzed at a toxicology laboratory to determine the pres<strong>en</strong>ce of drugs. Together, these elem<strong>en</strong>ts<br />
provide the evid<strong>en</strong>ce required to prove the off<strong>en</strong>ce.<br />
In the five years since the new drugs and driving legislation was implem<strong>en</strong>ted, Canada has struggled<br />
to train and maintain a suffici<strong>en</strong>t number of certified DREs to conduct drug influ<strong>en</strong>ce evaluations.<br />
Canada is a geographically diverse country with a large number of remote jurisdictions with small<br />
populations, many of which do not have access to a DRE. Although roadside surveys indicate that the<br />
preval<strong>en</strong>ce of drug use by drivers is comparable to that of alcohol, the number of drug-impaired<br />
driving charges pales in comparison with those related to alcohol-impaired driving. The courts have<br />
also struggled with the evid<strong>en</strong>ce provided by the DEC program, resulting in acquittals and case law<br />
that has created further chall<strong>en</strong>ges for the program. These developm<strong>en</strong>ts have prompted some to<br />
question the value of the DEC program, claiming it is exp<strong>en</strong>sive to train and certify officers as DREs,<br />
requires too much time to conduct an evaluation, and has yet to prove its worth in terms of charges,<br />
convictions and reductions in the drug-impaired driving problem. 1<br />
As an alternative, it has be<strong>en</strong> proposed that Canada adopt drug <strong>per</strong> se laws that specify the<br />
maximum conc<strong>en</strong>tration of a drug allowed in the blood of a driver, comparable to the approach tak<strong>en</strong><br />
with alcohol. Per se laws not only simplify the adjudication of off<strong>en</strong>ders, they can facilitate<br />
<strong>en</strong>forcem<strong>en</strong>t and <strong>en</strong>hance deterr<strong>en</strong>ce. The relative simplicity of <strong>per</strong> se laws, their widespread<br />
acceptance for dealing with alcohol-impaired driving and the demonstrated effectiv<strong>en</strong>ess of alcohol<br />
<strong>per</strong> se laws have bolstered the call for similar <strong>per</strong> se limits to be established for other drugs. The<br />
following sections discuss the chall<strong>en</strong>ges of implem<strong>en</strong>ting <strong>per</strong> se laws for drugs.<br />
Curr<strong>en</strong>t Status<br />
Driving under the influ<strong>en</strong>ce of narcotics was first added to the Criminal Code in 1925. In 1951,<br />
am<strong>en</strong>dm<strong>en</strong>ts to the Criminal Code changed driving “under the influ<strong>en</strong>ce” or “while intoxicated” to<br />
driving “while impaired” and the term “narcotic” was expanded to include “any drug.” 2 Despite the<br />
long history of laws on drugs and driving, in the abs<strong>en</strong>ce of a procedure to systematically assess<br />
impairm<strong>en</strong>t and collect bodily fluid samples for analysis, it was difficult to gather suffici<strong>en</strong>t and<br />
compelling evid<strong>en</strong>ce to charge and convict off<strong>en</strong>ders.<br />
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Formal recognition of the DEC program in the Criminal Code <strong>en</strong>hanced the ability of police to<br />
investigate suspected drug-impaired drivers. Nevertheless, there remain chall<strong>en</strong>ges to <strong>en</strong>forcem<strong>en</strong>t<br />
of the law and the adjudication of off<strong>en</strong>ders. The cost and complexity of this approach have led to<br />
calls for a simpler, more effici<strong>en</strong>t method of dealing with drug-impaired driving comparable to that<br />
used to deal with alcohol-impaired driving by establishing drug conc<strong>en</strong>tration levels above which it is<br />
an off<strong>en</strong>ce to o<strong>per</strong>ate a vehicle — that is, <strong>per</strong> se laws.<br />
What the Evid<strong>en</strong>ce Says<br />
A <strong>per</strong> se law is ess<strong>en</strong>tially a legal shortcut used to simplify the adjudication of off<strong>en</strong>ders. In the case<br />
of alcohol, without the burd<strong>en</strong> of having to prove the accused was impaired by alcohol, the<br />
prosecution can focus on two elem<strong>en</strong>ts: was the <strong>per</strong>son driving and was his or her BAC in excess of<br />
80 mg/dL. The simplicity of <strong>per</strong> se laws streamlines adjudication and they have be<strong>en</strong> shown to<br />
facilitate <strong>en</strong>forcem<strong>en</strong>t and <strong>en</strong>hance deterr<strong>en</strong>ce. Together, these factors have had a positive impact<br />
on the preval<strong>en</strong>ce of impaired driving and alcohol-related crashes. Research has determined that<br />
alcohol <strong>per</strong> se laws are associated with an 8–15% reduction in alcohol-related fatal crashes. 3 While<br />
it is oft<strong>en</strong> assumed that <strong>per</strong> se laws for drugs would have similar effects, to date there is no<br />
empirical evid<strong>en</strong>ce to support this hypothesis.<br />
Limitations and Gaps<br />
On the surface, implem<strong>en</strong>ting drug <strong>per</strong> se laws appears to be a reasonable approach. Unfortunately,<br />
the situation is considerably more complex than it seems. Foremost, the 80 mg/dL limit for alcohol<br />
was derived from years of ex<strong>per</strong>im<strong>en</strong>tal and epidemiologic research demonstrating that this level of<br />
alcohol was associated with considerable impairm<strong>en</strong>t of many of the skills and abilities necessary for<br />
the safe o<strong>per</strong>ation of a motor vehicle. This research also showed that the risk of crash involvem<strong>en</strong>t<br />
was significantly increased among drivers who had an alcohol conc<strong>en</strong>tration of this magnitude. The<br />
same cannot be said of the hundreds of substances — illegal drugs, prescription medications, overthe-counter<br />
remedies — that have the pot<strong>en</strong>tial to impair the ability to o<strong>per</strong>ate a motor vehicle safely.<br />
Few of these substances have be<strong>en</strong> subjected to rigorous ex<strong>per</strong>im<strong>en</strong>tal testing or included in<br />
epidemiological research. Establishing a sci<strong>en</strong>tific basis to justify a <strong>per</strong> se limit for each substance<br />
would require an extraordinary amount of time and resources.<br />
There are many factors that complicate the establishm<strong>en</strong>t of <strong>per</strong> se limits for drugs. The<br />
mechanisms by which differ<strong>en</strong>t substances are absorbed, distributed and metabolized in the body<br />
(i.e., pharmacokinetics) are more complex than for alcohol. The observed effects of the drug at<br />
differ<strong>en</strong>t conc<strong>en</strong>trations (i.e., pharmacodynamics) dep<strong>en</strong>d on the g<strong>en</strong>der, weight, age, disease state<br />
of the individual and the ext<strong>en</strong>t of acquired tolerance to the substance. Some drugs form active<br />
metabolites (e.g., diazepam) that ev<strong>en</strong> after the level of the par<strong>en</strong>t drug has waned, active<br />
metabolites are still causing impairm<strong>en</strong>t. Per se laws would have to take into the account the<br />
metabolic breakdown patterns of such substances. The concomitant use of more than one<br />
substance is also common. It is possible that the conc<strong>en</strong>tration of no single drug exceeds the <strong>per</strong> se<br />
limit but the combination of drugs creates significant impairm<strong>en</strong>t. Per se laws would have to include<br />
provisions for the use of a drug in combination with other drugs or alcohol.<br />
Measuring drug conc<strong>en</strong>trations is considerably more complicated that measuring alcohol<br />
conc<strong>en</strong>tration. Unlike alcohol, which can be readily and reliably measured using breath samples,<br />
drug testing requires a sample of blood, urine or oral fluid. Because drug conc<strong>en</strong>trations are not<br />
equival<strong>en</strong>t across the differ<strong>en</strong>t sample media, separate limits would have to be determined for each<br />
type of fluid or a preferred type of fluid would have to be specified. Blood is the “gold standard” for<br />
determining drug conc<strong>en</strong>trations. The difficulty is that blood samples can only be drawn by a<br />
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qualified medical practitioner under the su<strong>per</strong>vision of a lic<strong>en</strong>sed physician. Medical <strong>per</strong>sonnel are<br />
not required by law to collect blood samples from suspected impaired drivers and there are no<br />
re<strong>per</strong>cussions for not collecting a sample. The more substantive issue, however, is the time required<br />
to transport the suspect to a medical facility and wait for medical <strong>per</strong>sonnel to collect a blood<br />
sample. The time delay can be substantial and, dep<strong>en</strong>ding on the drug involved, can be suffici<strong>en</strong>t for<br />
the conc<strong>en</strong>tration of the drug to have fall<strong>en</strong> below the threshold value for charges.<br />
Oral fluid provides a pot<strong>en</strong>tial alternative to blood. Collecting a sample of oral fluid is less intrusive<br />
than collecting blood, requires no particular ex<strong>per</strong>tise and can be done virtually anywhere in a matter<br />
of a few minutes. Unfortunately, at this point, no governm<strong>en</strong>t for<strong>en</strong>sic toxicology lab in Canada has a<br />
protocol for testing oral fluid samples. All samples have to be s<strong>en</strong>t to a lab in the United States for<br />
analysis. Although point-of-contact oral fluid scre<strong>en</strong>ing devices are available, none has be<strong>en</strong><br />
approved for use in Canada. However, the use of such devices is on the horizon and, with further<br />
developm<strong>en</strong>t, these devices might ultimately provide an evid<strong>en</strong>tial-quality test.<br />
What Other Countries Are Doing<br />
Many countries in Europe (e.g., France, Swed<strong>en</strong>, Belgium, Portugal) have established zero tolerance<br />
laws for illegal substances, whereby any amount of the substance in the body is an off<strong>en</strong>ce. Others<br />
(e.g., Spain, United Kingdom, Italy) have behaviour-based statutes that require evid<strong>en</strong>ce of<br />
impairm<strong>en</strong>t to prove the off<strong>en</strong>ce. 4 Norway has tak<strong>en</strong> a somewhat differ<strong>en</strong>t approach and established<br />
numerical thresholds for 20 substances, including some pharmaceuticals. 5 These limits were<br />
determined by an ex<strong>per</strong>t panel that reviewed the sci<strong>en</strong>tific literature and used their ex<strong>per</strong>i<strong>en</strong>ce,<br />
ex<strong>per</strong>tise and judgm<strong>en</strong>t to establish what were deemed to be drug conc<strong>en</strong>trations that would<br />
produce a degree of impairm<strong>en</strong>t comparable to that associated with a BAC of 20 mg/dL. Evid<strong>en</strong>ce of<br />
impairm<strong>en</strong>t is required for the use of substances for which no <strong>per</strong> se limit has be<strong>en</strong> established.<br />
<strong>Se</strong>veral states in Australia have de facto zero tolerance laws for certain substances (i.e., cannabis,<br />
amphetamines and Ecstasy [MDMA]). The limit is ess<strong>en</strong>tially determined by the detection threshold<br />
of the scre<strong>en</strong>ing device used at roadside. Charges are based on the confirmation of the pres<strong>en</strong>ce of<br />
the drug by a toxicology lab. 6<br />
In the United States, the Office of National <strong>Drug</strong> Control <strong>Policy</strong> (ONDCP) and others 7 have be<strong>en</strong><br />
promoting the adoption of <strong>per</strong> se drug laws by all states. It should be noted that those promoting <strong>per</strong> se<br />
drug laws in the United States are almost invariably referring to setting zero as the limit. Curr<strong>en</strong>tly, 16<br />
states have <strong>en</strong>acted some form of <strong>per</strong> se drug law (i.e., zero tolerance) for controlled, scheduled,<br />
restricted or illegal substances. Some states exclude cannabis and metabolites (e.g., IO, MN, WI) and<br />
others allow a valid prescription to be used as an affirmative def<strong>en</strong>ce (e.g., IN, UT). In addition, four<br />
states (CA, CO, KS and WV) have zero tolerance laws for “drug addicts” or “habitual users” and one<br />
state (SC) has zero tolerance for those under 21 years of age. Two states (NV and OH) have set non-zero<br />
limits for some substances and rec<strong>en</strong>tly Colorado and Washington have set a 5 ng/mL limit for cannabis<br />
(Δ 9 -tetrahydrocannabinol or THC). Ohio and Nevada have established a limit of 2 ng/mL for THC. 8<br />
Options for Improvem<strong>en</strong>t<br />
The simplest approach to the issue would be to set the <strong>per</strong> se limit for illegal drugs at zero. This<br />
approach is tak<strong>en</strong> by several countries in Europe and is being promoted by ONDCP and others in the<br />
United States. The rationale is relatively straightforward and compelling: if the substance is illegal to<br />
possess, it certainly should be illegal to drive after using it. However, this approach ext<strong>en</strong>ds beyond<br />
the domain of impaired driving and <strong>en</strong>ters the domain of drug control. It also does not recognize that<br />
drivers can be impaired wh<strong>en</strong> using prescription drugs.<br />
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Perhaps the most prud<strong>en</strong>t course of action would be a type of hybrid approach, similar to that<br />
employed for alcohol. For example, in Canada there is a <strong>per</strong> se limit for alcohol as well as a<br />
behavioural impairm<strong>en</strong>t law. Suspected off<strong>en</strong>ders are oft<strong>en</strong> charged under both sections. This<br />
approach provides for charges to be pursued in cases where a driver is displaying impaired<br />
behaviour, but has a BAC below the 80 mg/dL threshold. In the case of drugs, <strong>per</strong> se limits could be<br />
established for those substances for which there is suffici<strong>en</strong>t evid<strong>en</strong>ce to support a specific limit.<br />
This <strong>per</strong> se limit would be in addition to the existing behavioural impairm<strong>en</strong>t law. There are also<br />
drugs for which it is reasonable to establish a zero tolerance policy (e.g., LSD, PCP). Where there is<br />
insuffici<strong>en</strong>t sci<strong>en</strong>tific evid<strong>en</strong>ce to establish a <strong>per</strong> se limit, a behavioural impairm<strong>en</strong>t standard would<br />
be used as the basis for charges.<br />
Whether <strong>per</strong> se laws are ultimately implem<strong>en</strong>ted or behavioural impairm<strong>en</strong>t laws remain the<br />
standard, detecting drug use and drug impairm<strong>en</strong>t in drivers will continue to be an issue. Detection<br />
begins with establishing a “reasonable suspicion” of drug use. However, the signs and symptoms of<br />
drug use can differ dramatically from those of alcohol use. Special training and ex<strong>per</strong>i<strong>en</strong>ce is<br />
required for officers to become profici<strong>en</strong>t in the recognition of the signs and symptoms of drug use.<br />
Once suspicion has be<strong>en</strong> established, the officer can demand the driver to complete the<br />
Standardized Field Sobriety Test (SFST). The SFST is a widely used test of impairm<strong>en</strong>t that consists<br />
of three compon<strong>en</strong>ts: Walk and Turn, One Leg Stand and Horizontal Gaze Nystagmus. Although this<br />
test battery has be<strong>en</strong> validated as a measure of alcohol impairm<strong>en</strong>t, its validity has never be<strong>en</strong><br />
established for impairm<strong>en</strong>t by drugs. Further research demonstrating the validity of the SFST for<br />
drugs other than alcohol would be b<strong>en</strong>eficial in establishing a standard to assess drug impairm<strong>en</strong>t. 9<br />
Roadside drug scre<strong>en</strong>ing devices could also prove b<strong>en</strong>eficial for police officers in id<strong>en</strong>tifying drivers<br />
who might be impaired by drugs. These devices can detect some of the most commonly used drugs<br />
in a sample of oral fluid collected at roadside. Further work to establish the validity and use of these<br />
instrum<strong>en</strong>ts is needed before they can be used in Canada.<br />
An alternative approach would be to establish presumptive limits for certain substances.<br />
Presumptive limits ess<strong>en</strong>tially provide drug conc<strong>en</strong>tration guidelines that, in combination with<br />
evid<strong>en</strong>ce of impairm<strong>en</strong>t, could assist the courts with the interpretation of the evid<strong>en</strong>ce. The limit<br />
merely indicates the point at which impairm<strong>en</strong>t is likely to occur, but behavioural evid<strong>en</strong>ce would<br />
also be required. The value of a presumptive limit is that it would allow the drug conc<strong>en</strong>tration to be<br />
<strong>en</strong>tered as evid<strong>en</strong>ce, but would not be irrefutable evid<strong>en</strong>ce of impairm<strong>en</strong>t. It would be incumb<strong>en</strong>t<br />
upon the prosecution to prove that the ability of the accused to o<strong>per</strong>ate a vehicle was impaired.<br />
Observations of driving behaviour or results from a DEC evaluation or both could provide the<br />
evid<strong>en</strong>ce of impairm<strong>en</strong>t.<br />
ISBN 978-1-77178-175-6 © Canadian C<strong>en</strong>tre on Substance Abuse <strong>2014</strong><br />
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Criminal Law Quarterly, 60(2), 238–276.<br />
2<br />
Prud<strong>en</strong>, H. (2013). Impaired driving legislation. Pres<strong>en</strong>tation at the Canadian Council of Motor Transport Administrators Alcohol<br />
Workshop, Ottawa.<br />
3<br />
Mann, R.E., Macdonald, S., Stoduto, L.G., Bondy, S., Jonah, B., & Shaikh, A. (2001). The effects of introducing or lowering legal <strong>per</strong> se<br />
blood alcohol limits for driving: An international review. Accid<strong>en</strong>t Analysis and Prev<strong>en</strong>tion, 33(5), 569–583. Tippetts, A.S., Voas, R.B., Fell,<br />
J.C., & Nichols, J.L. (2005). A meta-analysis of .08 laws in 19 jurisdictions in the United States. Accid<strong>en</strong>t Analysis and Prev<strong>en</strong>tion, 37, 149–<br />
161. Villaveces, A., Cummings, P., Koepsell, T.D., Rivara. F.P., Lumley, T., & Moffat, J. (2003). Association of alcohol-related laws with<br />
deaths due to motor vehicle and motorcycle crashes in the United States, 1980–1997. American Journal of Epidemiology, 157, 131–140.<br />
4<br />
Schumacher, M., & Knoche, A. (2012). Recomm<strong>en</strong>dations for developing impairm<strong>en</strong>t thresholds for illicit drugs and medicines.<br />
Pres<strong>en</strong>tation at the 91 st Annual Meeting of the Transportation Research Board, Washington, DC.<br />
5<br />
Christophers<strong>en</strong>, A.S. (2011). Change of Norwegian Road Traffic Act: Impairm<strong>en</strong>t based limits for driving under the influ<strong>en</strong>ce of drugs<br />
other than alcohol. Pres<strong>en</strong>tation at the International Symposium on <strong>Drug</strong>s and Driving, Montreal.<br />
6<br />
Davey, J., Freeman, J., & Palk, G. (2010). Deterring the drug drivers: A study into the initial impact of oral random roadside drug testing.<br />
Pres<strong>en</strong>tation at the International Confer<strong>en</strong>ce on Alcohol, <strong>Drug</strong>s and Traffic Safety, Oslo, Norway.<br />
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