Most Canadians are familiar with the police use of a roadside screening device to determine if alcohol is present in a driver stopped either at a police road checkpoint or on suspicion of impaired driving. The Criminal Code is quite clear that a fail on the roadside screening device provides the grounds for a police officer to make a demand that a driver provide a breath sample for the breathalyzer at the police station. A reading of over .08 on the breathalyzer at the police station will cause the police to lay the charge of failing the breathalyzer pursuant to section 253(1)(b) of the Criminal Code. The breathalyzer certificate, if found to be admissible by the court, will be proof of impairment for purposes of section 253(1)(b) of the Criminal Code.

When it comes to impairment by a drug, there is no device similar to a screening device or breathalyzer which the police can use to measure impairment by alcohol. When it comes to possible impairment by a drug, the Criminal Code provides a regime outlined at section 254 whereby a police officer who is designated a “drug evaluation expert” can give evidence of tests which the officer conducted to determine whether, in the officer’s opinion, an individual’s ability to drive is impaired by a drug. The regulations made pursuant to section 254(1) of the Criminal Code establish the qualifications of a drug evaluation officer and describes the tests that they perform in making a determination as to whether, in the officer’s opinion, a driver’s ability to drive is impaired by a drug. These tests, which are outlined in the regulations, include measurements of pulse and heart rates. There are also a series of eye examinations and physical divided attention tests. The drug evaluation officer will complete a “Drug Influence Evaluation” form and later prepare a written summary of the tests and their results. The drug evaluation officer will form an opinion as to whether or not the person’s ability to operate a motor vehicle was impaired by a drug and that would serve as the basis for either a demand for a blood sample or a urine sample which would then be sent to a forensic laboratory for analysis.

Drug evaluation expert “DRE” cases tend to be complex because legal issues arise as to the qualification of the drug evaluation expert to give opinion evidence in court. It is usually necessary to have a forensic toxicologist testify to give evidence if drugs were found in the urine or blood sample and their likely effect on a person’s ability to drive.

In Nova Scotia, most courts have found that a police officer who is qualified as a drug evaluation expert according to the regulations made pursuant to section 254(1) of the Criminal Code must be qualified to give expert evidence in court. Even if an officer is qualified to give expert evidence, there are always arguments which experienced defence counsel can make about the weight a trial judge should give to such evidence. Most reported drug evaluation cases in Nova Scotia have typically taken up to two days of court time and frequently involve applications based on the Charter rights of the accused given that part of the drug evaluation expert’s examination involves asking the accused to provide answers to various questions which can amount to self-incrimination.

Any driver charged with impairment which involved an examination by a drug evaluation expert should consult with an experienced criminal defence lawyer before agreeing to answer any questions for the police officer or participating in the test procedure. It is a criminal offence to refuse to participate in the series of tests mandated by the regulations pursuant to section 254(1) of the Criminal Code. However, an accused driver may not have to answer any of the questions posed by the police officer because those questions would tend to violate an accused’s Charter protected right against self-incrimination.

If you are charged with an offence of being impaired by a drug which involves a drug evaluation expert, you should consult with a lawyer who has experience in these complicated legal cases. If you require legal advice in this area please do not hesitate to call Tom Singleton at (902) 492-7000.