New Drug-Impaired Driving Laws
What are the new laws in effect for driving while under the influence of marijuana?
As of October 17, 2018, marijuana or cannabis is now legal in Canada. In anticipation of the legalization of marijuana, new laws were put in place on June 21, 2018 in relation to driving while under the influence of marijuana. One of the purposes of the cannabis law is to discourage individuals from driving while impaired by marijuana. In other words, the new impaired driving law prohibits a person from driving while highon weed or cannabis. It also prohibits anybody from smoking or consuming marijuana while driving.
The new laws in Canada for driving while impaired by cannabis are governed mainly by the Criminal Code, which the federal government is responsible for. At the same time, provincial and territorial governments also have new laws and regulations put in place. For example, in Alberta, new provisions were added to the Traffic Safety Act to regulate drug-impaired driving. Your own municipality (city/ town) will also likely have its own bylaws and rules on the use of marijuana. For the purposes of driving while high on cannabis, the Criminal Code and provincial laws both apply.
Three new offences were created under the Criminal Code for driving while highon cannabis. The basis for these new charges comes from the amount or concentration of drugs in your blood. For marijuana, the main drug ingredient is called Tetrahydrocannabinol or THC. You can be charged with a criminal offence if, within two hours of driving you are caught with:
- 2 to less than 5 nanograms of THC,per milliliter of your blood; OR
- 5 or more nanograms of THC, per milliliter of your blood; OR
If you drink and consume or smoke cannabis, you can also be charged if you are caught with:
- 5 nanograms or more of THC, per milliliter of blood, and 50 milligrams of alcohol per 100 milliliters of blood, or .05%
Even if you have medical authorization for the use of cannabis, you can still be charged
with these offences.
What could happen if you are pulled over?
If you are pulled over while driving, and the police form areasonable suspicion that you have consumed drugs, police can demand that you comply with either a standard field sobriety test or provide an oral fluid sample. Police may reasonably suspect that you have drugs in your body if they see indications of drug use such as glossy,red eyes and/or slurred speech patterns.
Once they have reasonable suspicion, police could demand a sample from you usingan oral fluid drug-screening device to detect the presence of drugs in saliva, including THC. This processwould be similar to a roadside screening in alcohol-impaired driving investigations. If you test positive on the oral fluid test, it confirms that you have consumed THC.
If the police do not have an oral fluid drug screening device that they can use, they may demand that you undergo a field sobriety test to determine if you could be impaired by cannabis. The field sobriety test consists of preliminary questions, an eye exam, and some physical movement tests.If you refuse to comply with the police officer’s demand to provide a sample of your saliva, or to undergo a field sobriety test, you could face criminal charges for failing to comply.
If the oral fluid drug-screening device tests positive for consumption of drugs, and/or if you fail the field sobriety test, this means that the police have reasonable grounds to demand that you undergo a Drug Recognition Evaluation (DRE). This also gives them reasonable grounds to demand that you provide a sample of your blood or urine for testing.A person who refuses to comply with the either of these demands for a sample or DRE, may again face criminal charges for failing to comply. The urine or blood sample is then sent to a lab to confirm the concentration of THC. The police could then charge you for impaired driving and/or driving over the legal limit if you fail the DRE andonce the lab analysis confirms the concentration of THC in your blood.
What are the penalties for driving while high on cannabis?
If you are charged with impaired driving, driving over the legal limit, and/or failing to comply with a demand, the provincial licence suspension will have the following consequences:
- Immediate 90-day licence suspension; and
- Immediate 3-day vehicle seizure (7-day seizure for a subsequent offence); and
- Mandatory remedial education; and
- A further 1-year driving suspension, unless you participate in a provincial interlock program.
- If you decide not to participate in the interlock program, your licence will remain suspended for the year.
If you have a Graduated Driver’s License (GDL), you are not allowed to have any amount of cannabis or THC in your blood. If you have a GDL license and are caught with any amount of THC in your blood, your licence will be suspended for 30 days and your vehicle will be seized for 7 days. Furthermore, you will be required to remain in the GDL program for 2 years without incurring any suspensions in the final year, to graduate from the GDL program.
As mentioned above, the Criminal Code added three new offences for having a blood drug concentration over the legal limit. These offences are in addition to the offence of impaired driving due to drugs and/or alcohol. If you are convicted of impaired driving, or driving above the legal limit, you will receive a criminal record and a further driving prohibition, in addition to fines or imprisonment or both.
For drug-impaired driving, you could be prosecuted by summary conviction or by indictment. The maximum penalty for a summary conviction is imprisonment of up to 18 months; and up to 5-years imprisonment if the Crown prosecutor proceeds by indictment. If you cause bodily harm while driving impaired due to drugs, you could face imprisonment of up to 10 years. If you cause death to someone, you could face life imprisonment.
If you are convicted of driving while your blood alcohol concentration is above the legal limit the following table shows the potential penalties, on top of a criminal record:
Note: How to Properly Transport Cannabis
If you are in possession of cannabis while driving, it will have to be secured in closed packaging and out of reach of anyone in the vehicle. If you are pulled over and police see cannabis stored improperly in your vehicle, you could be arrested, searched, and you could face a fine.
What are your rights if you are stopped while driving high on cannabis
Similar rights and obligations are in effect when you are being investigated for either alcohol impairment or drug impairment while driving. For more information about you rights and obligations if you are stopped or pulled over for impaired driving investigation, see our blog post on Alberta Checkstop Program for Impaired Driving.
Now that cannabis is legal, it is important that you are well-informed about your rights and obligations if you are subject to a drug-impaired driving investigation.For example, do you have to comply with the officer’s demand for a saliva screening, or can you call your lawyer first?
With respect to the first question- yes, you do have to comply with the demand for a saliva sample. Otherwise, as discussed above, you may be charged with a criminal offence. As for the second question, the law states that you do not have the right to speak to a lawyer while initially detained for during the course of an impaired driving investigation. This means that you do not have the right to speak to a lawyer before you provide a saliva sample or before you comply with demand to undergo a field sobriety test.
The suspension of your right to retain and instruct counsel ends, however, when that initial detention becomes an arrest. In drug-impaired driving investigations, this happens when you are arrested after you test positive for THC in your saliva and/or after you fail the field sobriety test. At this point, upon your arrest, you must immediately be informed of your right to speak with a lawyer and you must be given a reasonable opportunity to do so.
Whether your right to counsel was respected, is often an important issue in impaired driving investigations. The law in this area, including the new cannabis laws for drug-impaired driving is very complex. Future additions and changes to impaired driving laws are also going to take effect on December 18, 2018. Therefore, if you have been charged with the offence of impaired driving due to alcohol, cannabis or other drugs, you are strongly encouraged to seek the assistance of a skilled lawyer who is knowledgeable in this area.
Keep your eyes open for future blog posts that will discuss developments in this area. For additional information about the new drug-impaired driving laws and your rights, give us a call toll-free at 1-833-784-7500 or email us at consult@ libertylaw.ca