With the election of Justin Trudeau, the legalization of marijuana in Canada is looking less like a pipe dream and more like a reality. But getting there won’t be easy and there will be many variables and factors to work out over time. For instance, if marijuana is legalized, the issue of marijuana-impaired driving is one that will need to be addressed. We have already seen Colorado and Washington struggle with this issue. So how would BC cope? If we free the weed, will we hammer the drivers? Where will we draw the line?
Will the provincial government want to go further when marijuana becomes legal? Will they create another scheme, with more serious consequences, in order to discourage marijuana impaired driving?
There is no doubt that once enough is consumed, alcohol will decrease ones ability to operate a motor vehicle in a safe and responsible manner. However, the negative effects of marijuana on driving are less convincing and more difficult to identify.
While cannabis intoxication has been shown to impair psychomotor skills in drivers, in most cases the degree of impairment is mild. When compared with alcohol, marijuana impairment is not nearly as severe or as long-lasting. In simulated tests, participants impaired by marijuana actually tended to drive more cautiously and at slower speeds. However, they also required more response time when presented with unexpected or potentially dangerous situations, which slightly increased their risk of becoming involved in an accident. A 2002 review of seven separate studies, involving nearly 8,000 participants, concluded that, overall, cannabis-impaired drivers preformed no differently than drug-free drivers.
In spite of this, though, it is reasonable to assume that the government will want to separate marihuana-use and driving. As a matter of public policy, any activity that raises the risk of an accident, however slight, should be discouraged – and because the regulation of roadways falls under provincial control, it is likely that our provincial government will be tasked with the responsibility of creating these legislative safeguards.
As it stands right now, the BC Motor Vehicle Act gives police officers the ability (and obligation) to issue 12-hour or 24-hour driving prohibitions to drivers they believe to be affected by drugs. This includes marijuana or even prescription drugs. These prohibitions are issued solely based on officer discretion, and there is no way to challenge the validity short of seeking a difficult and time-consuming review in BC Supreme Court.
The reason for the limited and difficult review process has a lot to do with the relatively minor hardship that such a short prohibition causes. Therefore, 12 and 24-hour prohibitions are very rarely contested. Most people just take their prohibition, whether they feel that it was warranted or not, and deal with consequences. But the fact that it is such a minor consequence also means that it doesn’t act as much of a deterrent for people who regularly chose to use drugs and drive.
Those who are not discouraged by the stigma of a driving prohibition for drugs, are not likely to be discouraged by a 24-hour driving prohibition.
Free the weed, hammer the drivers?
So the question is will the provincial government want to go further when marijuana becomes legal? Will they create another scheme, with more serious consequences, in order to discourage marijuana impaired driving?
Our government has already concocted some of the most stringent anti-drinking and driving laws any province has ever seen. The 90-day Immediate Roadside Prohibition scheme hits even first time offenders with hefty penalties – all on the basis of a questionable-at-best roadside breath test. As we know, these laws are really problematic for all of the reasons we discuss here on our blog and have come under attack at various levels of court since their inception.
One of the most controversial aspects of the 90-day IRP regime has to be its sole reliance on officer’s conduct and readings obtained on Approved Screening Devices, which we know were never intended for this purpose and have significant failings. A ‘Warn’ or ‘Fail’ result on an ASD does not necessarily mean that a driver is impaired by alcohol.
Marijuana impairment seems to be even more difficult to detect and positively confirm. When smoked, peak impairment usually comes after about 10 minutes. After an hour, impairment of the ability to drive may be negligible or not at all. After two hours, it’s probable that the subject is not impaired in any way.
Right now, urine tests are sometimes used to check for marijuana use. But a positive test doesn’t necessarily confirm that the person was impaired by marijuana or has even used marijuana recently. The psychoactive ingredient in marijuana, TCH, can stay in the blood for weeks or even months after use – long after the effects of the drug have worn off.
But science responds to society’s demands and with the growing legalization of marijuana, and subsequent desire to curb marijuana impaired drivers, has caused researchers to look more seriously at developing a quick, reliable test for marijuana impairment.
There has been a lot of talk about the possibility of a marijuana breath test. Intended to be used roadside, this test would be similar to an ASD and would allow police officers to confirm their suspicions of marijuana impairment. If it is successfully developed, it may provide justification for more elevated penalties and a more throughout review process, which could look similar to our current IRP scheme.
The problem with the marijuana breath test though is that, so far, it just doesn’t seem to work. At all. In fact, the future of reliable marijuana breath testing looks fanciful at best. And without a reliable way to confirm an officer’s suspicion of marijuana impairment at the roadside, harsher sanctions against drug impaired drivers will be very difficult to develop and enforce.
Until the science catches up, the law may be stalled. It doesn’t make much sense to hammer the drivers when the question of impairment hangs in the air and reliable identification of marihuana-impaired drivers still hangs on the spotty subjective assessment of a police officer.
So when it comes to the likelihood of sensible harsher marijuana-impaired driving laws, I wouldn’t hold my breath.