CCSA-Drug-per-Se-Laws-Policy-Brief-2014-en

More documents

Recommendations

Info

Drug-Per-Se-Laws Background Canada has had an alcohol per se law since 1969. Section 253b of the Criminal Code makes it an offence to operate, or have care or control of, a vehicle with a blood alcohol concentration (BAC) in excess of 80 milligrams of alcohol in 100 millilitres of blood (80 mg/dL). This level of alcohol is deemed to be consistent with significant psychomotor impairment and increased risk of crash involvement. It is also an offence to operate a vehicle while one’s ability to do so is impaired by alcohol, a drug or a combination of alcohol and a drug (Section 253a of the Criminal Code). Canada currently has no per se limit for any drug other than alcohol. Drug-impaired driving requires evidence of behavioural impairment. Proving to a court that the driver was impaired has always had its challenges, regardless of whether the impairment was the result of alcohol or drugs. In 2008, parliament enacted legislation providing police with new investigative tools to facilitate the detection of drivers who were impaired by the use of drugs other than alcohol. Officers trained and certified in the Drug Evaluation and Classification (DEC) program, known as Drug Recognition Experts or DREs, could demand that a driver suspected of using drugs submit to a series of tests to determine (a) whether he or she was impaired and (b) the most likely class or classes of drugs responsible for the observed impairment. The evaluation includes a demand for a sample of blood, urine or oral fluid to be analyzed at a toxicology laboratory to determine the presence of drugs. Together, these elements provide the evidence required to prove the offence. In the five years since the new drugs and driving legislation was implemented, Canada has struggled to train and maintain a sufficient number of certified DREs to conduct drug influence evaluations. Canada is a geographically diverse country with a large number of remote jurisdictions with small populations, many of which do not have access to a DRE. Although roadside surveys indicate that the prevalence of drug use by drivers is comparable to that of alcohol, the number of drug-impaired driving charges pales in comparison with those related to alcohol-impaired driving. The courts have also struggled with the evidence provided by the DEC program, resulting in acquittals and case law that has created further challenges for the program. These developments have prompted some to question the value of the DEC program, claiming it is expensive to train and certify officers as DREs, requires too much time to conduct an evaluation, and has yet to prove its worth in terms of charges, convictions and reductions in the drug-impaired driving problem. 1 As an alternative, it has been proposed that Canada adopt drug per se laws that specify the maximum concentration of a drug allowed in the blood of a driver, comparable to the approach taken with alcohol. Per se laws not only simplify the adjudication of offenders, they can facilitate enforcement and enhance deterrence. The relative simplicity of per se laws, their widespread acceptance for dealing with alcohol-impaired driving and the demonstrated effectiveness of alcohol per se laws have bolstered the call for similar per se limits to be established for other drugs. The following sections discuss the challenges of implementing per se laws for drugs. Current Status Driving under the influence of narcotics was first added to the Criminal Code in 1925. In 1951, amendments to the Criminal Code changed driving “under the influence” or “while intoxicated” to driving “while impaired” and the term “narcotic” was expanded to include “any drug.” 2 Despite the long history of laws on drugs and driving, in the absence of a procedure to systematically assess impairment and collect bodily fluid samples for analysis, it was difficult to gather sufficient and compelling evidence to charge and convict offenders. Canadian Centre on Substance Abuse • Centre canadien de lutte contre les toxicomanies Page Pag 2 e
Drug-Per-Se-Laws Formal recognition of the DEC program in the Criminal Code enhanced the ability of police to investigate suspected drug-impaired drivers. Nevertheless, there remain challenges to enforcement of the law and the adjudication of offenders. The cost and complexity of this approach have led to calls for a simpler, more efficient method of dealing with drug-impaired driving comparable to that used to deal with alcohol-impaired driving by establishing drug concentration levels above which it is an offence to operate a vehicle — that is, per se laws. What the Evidence Says A per se law is essentially a legal shortcut used to simplify the adjudication of offenders. In the case of alcohol, without the burden of having to prove the accused was impaired by alcohol, the prosecution can focus on two elements: was the person driving and was his or her BAC in excess of 80 mg/dL. The simplicity of per se laws streamlines adjudication and they have been shown to facilitate enforcement and enhance deterrence. Together, these factors have had a positive impact on the prevalence of impaired driving and alcohol-related crashes. Research has determined that alcohol per se laws are associated with an 8–15% reduction in alcohol-related fatal crashes. 3 While it is often assumed that per se laws for drugs would have similar effects, to date there is no empirical evidence to support this hypothesis. Limitations and Gaps On the surface, implementing drug per se laws appears to be a reasonable approach. Unfortunately, the situation is considerably more complex than it seems. Foremost, the 80 mg/dL limit for alcohol was derived from years of experimental and epidemiologic research demonstrating that this level of alcohol was associated with considerable impairment of many of the skills and abilities necessary for the safe operation of a motor vehicle. This research also showed that the risk of crash involvement was significantly increased among drivers who had an alcohol concentration of this magnitude. The same cannot be said of the hundreds of substances — illegal drugs, prescription medications, overthe-counter remedies — that have the potential to impair the ability to operate a motor vehicle safely. Few of these substances have been subjected to rigorous experimental testing or included in epidemiological research. Establishing a scientific basis to justify a per se limit for each substance would require an extraordinary amount of time and resources. There are many factors that complicate the establishment of per se limits for drugs. The mechanisms by which different substances are absorbed, distributed and metabolized in the body (i.e., pharmacokinetics) are more complex than for alcohol. The observed effects of the drug at different concentrations (i.e., pharmacodynamics) depend on the gender, weight, age, disease state of the individual and the extent of acquired tolerance to the substance. Some drugs form active metabolites (e.g., diazepam) that even after the level of the parent drug has waned, active metabolites are still causing impairment. Per se laws would have to take into the account the metabolic breakdown patterns of such substances. The concomitant use of more than one substance is also common. It is possible that the concentration of no single drug exceeds the per se limit but the combination of drugs creates significant impairment. Per se laws would have to include provisions for the use of a drug in combination with other drugs or alcohol. Measuring drug concentrations is considerably more complicated that measuring alcohol concentration. Unlike alcohol, which can be readily and reliably measured using breath samples, drug testing requires a sample of blood, urine or oral fluid. Because drug concentrations are not equivalent across the different sample media, separate limits would have to be determined for each type of fluid or a preferred type of fluid would have to be specified. Blood is the “gold standard” for determining drug concentrations. The difficulty is that blood samples can only be drawn by a Canadian Centre on Substance Abuse • Centre canadien de lutte contre les toxicomanies Page Pag 3 e
Page 1: www.ccsa.ca • www.cclt.ca Sept. 2
Page 5 and 6: Drug-Per-Se-Laws Perhaps the most p

CCSA-Drug-per-Se-Laws-Policy-Brief-2014-en

Create successful ePaper yourself

Delete template?

Save as template?