Suspected drug-impaired drivers facing unfair treatment compared to boozy counterparts

Steve Mertl
·National Affairs Contributor
Both alcohol and drug-related 24-hour suspensions are issued under different parts of Section 215 of the Motor Vehicle Act.

A decision by the B.C. Superintendent of Motor Vehicles to review the fact suspected drug-impaired drivers can't appeal roadside suspensions sheds light on the basic problem of how to deal with stoners behind the wheel.

Under B.C. law, suspected drunk drivers who are handed 24-hour driving bans by a police officer can appeal the decision to an adjudicator. The suspension, of course, will already have been served but a successful appeal could result in it being erased from the driver's record.

By contrast, someone pulled over for suspected drug-related impairment is not allowed to appeal their licence suspension to the same administrative adjudicator. Instead, they either have to convince the officer who issued the ban to reconsider or apply for a judicial review with the courts, CBC News reports.

A report released last February by noted criminologist Neil Boyd on overall marijuana enforcement policies touched on the problem of detecting pot-impaired drivers in a traffic stop, and the need for an appeal mechanism like the one available to drunk drivers.

[ Related: Driver guilty of killing teens while impaired by drugs ]

"You shouldn't be driving under the influence of either drug," Boyd told CBC News.

"But I don't know why we would treat people who drive under the influence of alcohol somewhat more leniently in this context than people who drive under the influence of cannabis."

The double standard forces suspected drug-impaired drivers onto a more burdensome and potentially more costly route of fighting the suspension in court.

"It does seem like people are being treated differently, and certainly it raises concerns for me about access to justice and about people's ability actually to challenge these prohibitions," Vancouver lawyer Kyla Lee said, who specializes in impaired-driving cases, told CBC News.

"Not every prohibition is validly or justly issued, and there's a danger here that innocent people are being issued these prohibitions that have more consequences than just removal from the road for 24 hours."

The roadside ban can be used to justify a longer prohibition, said Lee, and remains on the driver's record.

CBC News noted that in 2012, the superintendent issued 7,326 24-hour suspensions to suspected drunk drivers and 3,800 suspensions for suspected drug intoxication. Of the alcohol-related bans, 172 were appealed and 33 were revoked.

Most of the appeals focused on the accuracy of the roadside breath-screening devices officers use to help decide whether to issue the ban. And that's where the process differs for suspected stoned drivers.

Currently officers do not have definitive way to determine on the spot whether a driver is impaired by drugs. Police rely on the familiar set of cognitive tests to determine a driver's physical co-ordination.

[ Related: MADD Canada report says law to tackle drug-impaired driving is not working ]

In a report last year, MADD Canada said these techniques are time-consuming, unwieldy, fail to identify the "vast majority" of drug-impaired drives and leave the problem "dramatically under-enforced." It recommended joining Australia and several European countries that have introduced roadside saliva tests to screen for commonly used drugs.

As well, five out of 10 provinces – Ontario, Quebec, New Brunswick, Nova Scotia and P.E.I., don't even have provision for roadside suspensions related to drug impairment, the report noted.

Quebec has since stepped up enforcement, administering roadside tests for eye movement, balance and ability to walk. If a driver fails, that's followed by a trip to the police station for further testing and a potential impaired-driving charge, according to CTV News.

Drug-driving cases aren't necessarily cut and dried. There's no reason to arrest a driver if no actual drugs are found and sometimes even the suspicion of impairment can be questionable.

This year, two B.C. drivers had their suspensions overturned after going to court on arguments that their passengers had smoked pot but they had not, CBC News noted.

In one of the cases, the judge drew attention to the lack of an administrative review process to challenge an officer's conclusion that the driver was stoned, too.

"I reject the [police officer's] submission that there is no recourse to the exercise of the summary power granted under s.215(3) of the Motor Vehicle Act, whether or not the long term consequences for a persons' permanent driving record is unfair," Justice Mark McEwan wrote, according to CBC News. "That is simply not so."