Testing drivers for marijuana in their systems­

How long do drug tests detect marijuana (cannabis)? There is no simple answer to this question. Detection time depends strongly on the kind and sensitivity of the test employed; the frequency, dosage, and last time of use; the individual subject's genetic makeup, the state of one's metabolism, digestive and excretory systems; and other random, unknown factors. ­

If you smoke one joint, the detection time for it to be found in your urine is 1 to 7 days. To be found in your blood, detection is 12 to 24 hours. If you use marijuana on a regular basis, it can be detected in your urine 7 to 100 days. It can be detected in your blood between only 2 to 7 days.

What is extremely important to know is that urine tests do not detect the psychoactive component THC which is found in in marijuana which is actually called (delta-9-tetrahydrocannabinol), and for this reason, the urine test cannot measure any degree of impairment. The urine tests can detect the non-psychoactive marijuana metabolite THC-COOH, which can linger in the body for days and even weeks.

Here is an example in which two police officers ((Royal Canadian Mounted Police) in British Columbia, each presuming to be an authority on impaired driving, made a terrible blunder when they presumed that a driver they saw parked in a Walmart parking lot, was impaired because they believed that the man was smoking marijuana in the cab of his truck.  I should point out that if the truck’s engine wasn’t on and he wasn’t sitting behind the wheel, the officer couldn’t charge the man with anything, even if he was bombed out of his mind from alcohol or heroine etc.

The man I am referring to is Derek Kowalenko who he says doesn’t use marijuana. But nevertheless, he’s been designated as an illegal drug user, and now he can’t find a job, because the two RCMP officers in Kelowna, B.C., believed he was stoned on pot while he sat in his truck. To make matters worse, his insurance will go sky high if it isn’t cancelled.                    

According to Mr. Kowalenko, he was smoking a grape-flavoured cigarillo. He showed it to the two Mounties when they walked up to his parked truck. and asked him what he was smoking.

According to an RCMP document, one of the officers “detected a very faint smell of marijuana under much cigar smoke in the cab of the truck.” What are these twerps—blood hounds? These two twits found no marijuana on their suspect; they didn’t even conduct a search. Mr. Kowalenko offered to produce blood and urine samples but the arresting officers weren’t interested. Instead, they ordered him to recite the alphabet backwards, and to stand on one foot, with the other foot pointed out, and to hold the pose while they talked. Have you ever tried to recite the alphabet backwards. It is not as easy as you think. Would that mean that you are impaired? I hardly think so. Further, how long can you stand on one foot for five or more minutes? If you have to use your other foot to re-balance yourself, does this mean you are impaired? I hardly think so. Unfortunately, he didn’t perform well as far as those two twits were concerned. 

Kowalenko’s driver’s licence was suspended on the spot by the two so-called experts on the detection of impairment in a human being. Unlike drivers caught drunk behind the wheel of a car, in B.C., an alleged drug- impaired driver has no means to contest a 24-hour suspension, aside from going to court, which can be a lengthy and costly process.

Rather than hire a lawyer, Mr. Kowalenko appealed to the RCMP and to the Commission for Public Complaints against the RCMP.  Both complaints were dismissed—naturally. Who do you think they would believe—their fine upstanding experts in detecting impaired drivers or a mere truck driver?

Alas, this is not an isolated incident. While laws prohibiting simple marijuana possession are seldom enforced in some Canadian jurisdictions, provincial motor vehicle divisions and courts are constantly dealing with people accused of driving while high on pot.

Cannabis use among drivers in B.C. is “particularly high,” according to a 2011 study published in the B.C. Medical Journal. It quoted from an earlier survey that found 4.6% of drivers in the Vancouver area and on Vancouver Island tested positive for cannabis. The study reported that there “is clear evidence that cannabis, like alcohol, impairs the psychomotor skills required for safe driving.” Cannabis-impaired drivers tend to drive more slowly and cautiously than drunk drivers, but evidence shows they are also more likely to cause accidents than drug and alcohol-free drivers, the study notes.

Marijuana does have serious harmful effects on the skills required to drive safely such as alertness, the ability to concentrate, coordination, and the ability to react quickly. Marijuana use can also make it difficult to judge distances and react to signals and sounds on the road.

These impaired effects can last up to 24 hours after smoking marijuana. However, I hardly think that smoking one joint with have a real effect on your driving and more than drinking an ounce of alcohol but if you are a regular marijuana user and you have smoked four or five joints in the last two hours;  your driving might very well be impaired. 

Like other police forces in Canada, the RCMP has dozens of specially trained drug recognition and evaluation (DRE) officers. They can detect whether or not a driver is drug impaired, by putting suspects through physical examinations and co-ordination tests. Or so it is claimed.

The trouble is that it is extremely difficult to detect impairment in a driver’s system either by urine or by blood tests. The only way to make the determination is by listening to the driver speaking (slurring words) the manner in which he moves about (weaving or falling) and hand movements (placing two finger tips next to each other with eyes closed).  I should point out that confusion is not a very good way to determine impairment as many people who are nervous when approached and spoken to by a police officer will speak as if they are confused.  And asking someone to add, multiply or divide two numbers is hardly a proper way to determine impairment and that goes for reciting the alphabet backwards. 

Despite the previous paragraphs, drug impairment is notoriously difficult to prosecute. “There is an evidentiary problem with drug cases,” a provincial court judge in Ontario said recently, as he acquitted a man whom police said was drug impaired, based on his clumsy, fumbling manner in which he appeared in front of the police officers who charged him. The judge said, “There is no standard and no norm as there is with blood-alcohol levels.”

In cases where blood and urine samples are taken and traces of cannabis are found, there’s no way to determine when the drug was consumed. As I said earlier, cannabis can remain in a person’s system for days, even weeks.

At what point is the marijuana smoker too impaired to drive? How much pot is too much? There is no hand-held device, no pot-detecting Breathalyzer that police can use to measure the amount a suspect has consumed, or to determine insobriety. Nor is there any standard blood-cannabis limit in Canada.

Some marijuana users have claimed that the drug doesn’t impair them at all. Ron Francis, the RCMP corporal stripped of his uniform this week for openly smoking legally prescribed medicinal marijuana, told National Post reporter Jen Gerson that he smokes one joint with his morning coffee, and it doesn’t get him “high.” But it does relieve him from post-traumatic stress. “It calms me down,” said Cpl. Francis. “I’m not getting high from one joint. If I smoke multiple joints, I’m getting high.”

Cpl. Francis is restricted to desk duty at his Fredericton, N.B., detachment; presumably, he still drives to and from work. It’s not known if he’s ever been pulled over and tested for impairment. Darren Duhamel was driving slowly along a snow-covered road in northern Ontario when provincial police pulled him over; they thought they smelled marijuana smoke in his vehicle, and they suspected he was stoned. He told them he was not. They put him through the usual roadside exams, including the “one leg stand,” the “walk and turn,” and the horizontal nystagmus (crossing the eyes) tests. According to court documents, he bungled some tests and performed adequately in others.

He was taken to the police detachment and ordered to provide a urine analysis; it proved inconclusive. Regardless, Mr. Duhamel was charged with driving under the influence of cannabis.

He was acquitted in the Ontario Court of Justice in 2011. According to Judge P.T. Bishop, Mr. Duhamel “is really overweight,” which could explain his difficulties with certain co-ordination tests. As for the accused’s alleged mumbling and reticence, the judge said, “I had an opportunity to look at Mr. Duhamel at trial and he speaks very slowly, he thinks about, he thinks very slowly and processes information very slowly.” He was not impaired by cannabis when pulled over, the judge concluded. He was just slow.

Randy Duplessis was convicted of impaired driving two years ago, after a routine check by Miramichi City police in New Brunswick. According to a court documents, Mr. Duplessis and two others were observed sitting in a parked vehicle outside a Miramichi public library. Mr. Duplessis was behind the wheel.

Remember what I said about sitting behind the wheel of a parked car even if the engine is not on. The law presumes that you now have the ability to turn on the engine and drive away while impaired. Don’t sit behind the wheel of your car if you are in any manner whatsoever, slightly impaired even when the engine is not running.

An officer noticed an odour of ‘freshly burnt’ marijuana in the vehicle and observed that Mr. Duplessis had “slow speech, pinkish eyes and ‘jerky’ head movements,” as to what the court document read. “He appeared to have to think about everything he said before speaking.” That by itself doesn’t necessarily connote impairment since a person unsure of the English language or extremely nervous will have to think about how he will answer questions.

Mr. Duplessis was detained, taken to a police station and evaluated by another officer, a DRE expert. She found he had “poor co-ordination, slow speech, a flushed face, dilated pupils and eyelid tremors.” The combination of all four impediments are a sign of impairment.

Mr. Duplessis was ordered to perform a series of physical co-ordination tests, including the “walk and turn” and “the one leg stand.” He failed, according to police. He was also “unable to accurately differentiate 30 seconds from 45.”

A urine sample volunteered by Mr. Duplessis showed he had marijuana in his system; however, the RCMP toxicologist who examined the sample testified at trial that “it is impossible to determine when the marijuana had been consumed by Mr. Duplessis as that drug can remain in the human body for up to one month after it is ingested,” the court document reads.

Mr. Duplessis admitted in court that he is a frequent marijuana smoker, but denied having consumed pot the evening of his arrest. One of his colleagues from the grocery store where they worked testified that the accused “was slow by nature and spoke with a drawl.” Another co-worker “testified that he thought Mr. Duplessis was mentally challenged because his speech was [always] slow and sluggish, and he was not well co-ordinated.”

Mr. Duplessis was found guilty nonetheless. But a Court of Queen’s Bench of New Brunswick judge struck down the conviction last year, noting the trial judge had failed to apply requirements of credibility assessment, and had, in effect, relied too much on dubious physical co-ordination tests.

Back in B.C., the province’s Superintendent of Motor Vehicles, Sam MacLeod, says he’s still confident in police and their abilities to detect pot-addled drivers, even though “there is currently no instrument-based roadside test for drug impairment.” Mr. MacLeod told the National Post in a statement that his department “is looking at options for introducing a more formal review process for 24-hour prohibitions for drugs in the future.”

This unfortunately is old comfort for Derek Kowalenko. He has the words “24-hour prohibition — DRUGS” stamped on his driver’s abstract, just for smoking a flavoured tobacco product. A heavy-equipment operator by trade, he can no longer find work in his field. He doesn’t drive much anymore, he says, because he’s been forced onto welfare and can’t afford to put gas in his truck. There is something very wrong in our system where innocent drivers can be considered impaired when in fact that are not impaired by drugs or by alcohol. 

                                                                   

Years ago when I was defending a man in court who was charged with impaired driving because the officer smelled alcohol on his breath, I was able to get him acquitted when I brought in evidence from his doctor that the breath of a diabetic smells like alcohol. Police officers do make mistakes. Oh! You didn’t know that?

I want to take this opportunity to credit Brian Hutchinson, a columnist with the National Post for his excellent article of which I gleaned much of the information in his article to use in part for my own article in this blog.