Roadside drug testing hits road block in Canada

The reliability of a device used by the Ontario Provincial Police and RCMP to catch impaired drivers is being challenged in court

Police officer giving a roadside sobriety test to a drunk driver. | Getty Images

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It’s been a little over a year since the first roadside drug testing devices hit the streets. And Draeger Safety Canada, the company that makes the one of two used in Canada, is declaring it an unqualified success.

“After a year on Canadian roads, we have only received positive reviews from officers around the country,” says the company’s managing director, Rob Clark, in a press release.

The statement goes on to say that “there have been absolutely no issues with regards to the device’s reliability in testing for THC and cocaine.”

Not exactly. Vancouver lawyer Kyla Lee, who is currently challenging the device’s use in a case in court, calls Draeger’s claims exaggerated.

“You wouldn’t expect to receive negative reviews from police,” Lee says.

Independent tests have also cast doubt on Draeger’s claims of accuracy.

Most major city police agencies in Canada – including Vancouver, Toronto, Ottawa, Calgary and Halifax – don’t use the device, although several regional police forces and the Ontario Provincial Police and RCMP, do.

The device is not designed to work in temperatures below 4°C, which rules out its use for most of the Canadian winter.

Cost is also a factor. Each test costs $25. More concerning for legal experts is the fact the machine has shown a tendency to produce false positives and false negatives.

In one study performed by Norwegian researchers, the device produced a false positive for THC in 14.5 per cent of the cases and false negatives in 13.5 per cent of the cases.

Lee got together with a number of experts – a former cop, a pharmacist, and a toxicologist – to perform her own study. One subject tested positive for opiates after eating poppy seeds. Another subject tested positive for THC after taking some lab-tested CBD oil.

The Draeger is one of two devices approved for roadside tests in Canada. The other, known as the Abbott SoToxa, is “arguably more accurate,” says Lee. But it also comes with its own set of problems. The device is meant to be used while resting on a flat surface.

And then there’s the issue of the testing of medical patients. Because THC can hang around in your fat cells for up to a month, medical users are susceptible to positive tests for THC, even if they aren’t impaired.

Draeger has said in the past that it is “impossible for the device to pick up past usage.”

Einat Velichover, a spokesperson for Draeger says the device is meant t be used as a screening tool. “It’s not like the device is judge and jury.”

Velichover also challenges the findings of the Norwegian study, pointing out that many of the false positives could be the result of time lapsed between the oral fluid test and a more accurate blood test, something the authors of the study highlighted as a limitation in their research.

Velichover, who declined to say how many units have been sold to Canadian law enforcement, says they “haven’t heard of any cases” of false positives in Canada.

That’s not what happened to Michelle Gray, according to Lee. Lee is one of several lawyers working on her case. The Nova Scotia woman, who lives with multiple sclerosis that she treats with cannabis, was stopped at an RCMP roadblock in January 2019 and given a field sobriety test, which she passed.

But a test using the Draeger machine came back positive for THC. Gray had smoked half a joint about seven hours earlier, Lee says. She was arrested and her car was impounded, but she was able to avoid charges when she passed a second sobriety test. She is now challenging the constitutionality of testing with roadside devices.

Lee and other critics of roadside devices would like to see a greater reliance on field sobriety tests. Machines take quantitative measurements, but can’t measure the actual risk someone poses if they get behind the wheel, Lee argues. “That’s going to give you a better gauge of whether someone is impaired.”

Police who do use the device like it in part because it removes the subjectivity to the decision, Lee says. “When you have a machine, it makes the decision easy,” she says.

We know a lot about the way alcohol works, and how impairment relates to measurable blood alcohol content. But drugs don’t behave the same way in your body, so drug impairment is a much more complex calculation. And we simply don’t have the technology in a roadside device that actually tests for drug impairment, says Lee.

Until we figure that out, we’re relying on inadequate results.

 

 

 

 

 

 

 

 

 

 

 

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