Where do police services stand with roadside drug testing for THC almost eight months into recreational cannabis being legal in Canada?
The simple question, however, may not have a simple response. With a number of factors at play—including new products in test phases and others in development—here’s the lowdown on the current state of affairs for roadside testing for THC.
How do roadside drug testing devices stack up?
Before the police can demand a saliva sample on a drug screener, they must reasonably suspect that the driver is under the influence of drugs. Reasonable suspicion is based on, among other factors, bloodshot eyes, agitation and speech patterns.
Currently, select Canadian police forces are limited to using theDraeger DrugTest 5000, the sole approved device for roadside drug screenings. But in April, the federal government announced its intention to approve a second device. The SoToxa from Abbott Laboratories recently underwent a 30-day public review and, if given the green light, it will join the Draeger tester as one of two federally approved devices.
Vancouver criminal lawyer, Kyla Lee, specializes in cannabis and roadside disputes and her firm, Acumen Law, has researched and compared both devices. She expects to see the SoToxa formally approved in the coming month.
“The SoToxa is smaller, and has a wider operating temperature range. It claims to be faster, but that will have to be seen with the testing,” Lee says. “The Draeger is only being used to test for THC and cocaine, while the SoToxa will just be used to test for THC, so we will likely see fewer false positives,” she expects. “Both devices are required to be kept still and level during the analysis phase of the testing, which will present practical difficulties roadside.”
While Lee’s firm has done some testing using the Draeger unit, it is prohibited from purchasing the SoToxa. “There is a problem with that, in my view,” Lee says. “We should be permitted to use and have access to the devices for the purposes of ensuring their reliability and building confidence in the process.”
Lee cautions that neither the SoToxa nor the Draeger can actually test impairment at the time of the roadside test; the devices can only detect the presence of THC in the saliva sample.
This means a driver who smoked cannabis six hours earlier, for instance, could have traces of THC remaining in his or her saliva even if the person is no longer impaired. This shortcoming will be the biggest problem for either device when or if it is challenged in a court of law.
Are THC breathalyzers the future of roadside drug testing?
Drivers over the legal BAC (blood alcohol concentration) are no match for alcohol breathalyzers, which have long been used by law enforcement to determine when charges can be laid and to keep roads safe. But no such comparable device exists to test THC levels in drivers, at least not yet. Numerous companies, including Vancouver’s Cannabix Technologies Inc.and California’s Hound Labs, are competing in the race to develop the “world’s first THC breathalyzer” and striving to be first to the finish line.
But how close are they to developing this proprietary, industry-disrupting device? Cannabis scientist, educator and speaker Alex Samuelsson suggests they still have a long way to go. “To be honest, it just seems like a lot of fluff and not a lot of substance,” Samuelsson says of the two proposed units. “Both websites have their own versions of disclaimers, like ‘product information based on pre-production design,’ and ‘this information may no longer be accurate,’” he notes.
Samuelsson argues that THC breathalyzers won’t have the same functionality as alcohol breathalyzers. “An alcohol breathalyzer works as a fuel cell. Because alcohol can be fuel to generate an electric current, and the current is directly proportional to how much ethanol passes through the breathalyzer, you can get very exact measurements,” he explains. “Not only is THC a lot heavier than alcohol, so it doesn’t evaporate very easily, but trying to get a breath into a THC-detecting device would only yield trace amounts [of THC].”
The main issue with a THC breathalyzer, Samuelsson says, is that very little THC actually comes out of the breath. Hounds Labs’ clinical study cites THC concentrations below two parts per trillion (ppt), which Samuelsson disputes would require a mass spectrometer to accurately measure.
Though a THC breathalyzer might be eagerly adopted by law enforcement, it seems such scientifically proven, functional devices remain a futuristic endeavour. “If [THC] was so trivial to detect in the breath, we would have done it a long time ago,” Samuelsson says.
Standard sobriety test for suspected high drivers
Post-legalization, the process by which police officers investigate and charge high drivers has seen little change. Currently, if a police officer suspects a driver of having consumed alcohol, drugs or a combination of the two while driving, he or she may be subject to a standard field sobriety test (SFST).
The driver might first be asked to perform a breathalyzer test to rule out the possibility of alcohol intoxication. During the SFST, drivers will be asked to perform a series of three tests: follow a moving object with the eyes; take nine steps, touching heel-to-toe, along a straight line, turn on one foot and return in the same manner, and stand on one leg while counting upwards from 1,000 for around 30 seconds.
If the driver does not pass the three tests, the officer can escort the driver to the police station for further evaluation by an officer trained in the Drug Recognition Expert (DRE) program. The 12-step DRE process includes an interview, darkroom examination and toxicological samples. Refusing to do the test is a criminal offence and the driver can be charged with refusing to comply with a police demand.
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