Yes, the police can test for cannabis use at the roadside as long as they have reasonable suspicion that the driver of the vehicle has been impaired by it’s use.
What is reasonable suspicion?
Reasonable suspicion are indicators that the police observe that make the officer suspicious that the driver of the vehicle has had their ability to operate the motor vehicle impaired by a drug or alcohol. It is important to note that this is not a high bar, the police do not need to observe many signs to make them suspicious.
The following observations are commonly relied on by police as signs that a driver is impaired by Cannabis:
- Red eyes
- Dilated pupils
- Sluggishness
- Trouble listening/understanding directions
- Abnormal speech patterns
- Irregular driving (including swerving or erratic speeds)
- Smell of cannabis
- Cannabis visible in car
Once the police have a reasonable suspicion that someone was driving while impaired, the police have two different methods in which to test for this at the roadside. These two methods are:
- Standard Field Sobriety Test (SFST).
- The use of oral fluid drug screening equipment.
The Standard Field Sobriety Test
The SFST is made up of three tests that will test your physical coordination at the roadside. These three tests are:
- Horizontal gaze nystagmus (HGN) test
- The walk and turn test
- The one-leg stand test
Horizontal gaze nystagmus (HGN) test
Police officers with conduct this test in a well-lit area, or with a flashlight. In simplified terms, this is a test in which police will have you follow an object with your eyes. Typically used is a pen, which they will hold in front of your face and move it left and right, watching how your eyes react to the changing direction. The officer is looking for the following three clues in each eye:
The walk and turn test
During the walk and turn test, the driver must take specific steps while walking heel-to-toe in a straight line. This test evaluates a driver’s balance and coordination, along with their ability to follow instructions. It may indicate a driver is impaired if not performed correctly.
The one-leg stand test
In the one-leg stand test, the driver stands on one leg while counting out loud for a specified amount of time. This test also assesses a driver’s balance and coordination and may indicate impairment if not performed correctly.
The use of oral fluid drug screening equipment
The other way police can test for Cannabis in the system of a driver is through an oral fluid screening device. This device uses a sample of an individual’s saliva to determine the presence of certain drugs. While these devices have been approved by the Canadian government their use is not widespread and a person who is arrested will likely not be tested with these devices.
Can you refuse testing?
No, in Canada a person does not have the legal right to refuse an officer’s demand for testing at the roadside and does not have the right to speak to a lawyer before roadside testing either.
If a person refuses an officer’s demand to be tested at the roadside, that will constitute a criminal offence, with the minimum sentence being a $2,000 fine and a 1-year driving prohibition. Penalties increase with subsequent offences and can include a period of jail time.
Conclusion
The purpose of roadside testing is not to determine conclusively that a driver is impaired but is used to elevate the officer’s suspicion to a higher level (reasonable grounds) which can allow the officer to issue an arrest. When a person is using Cannabis it is always advisable that they do not drive until the effects no longer impair their ability to drive. Contact us if you have any questions!
