08/20/2018 09:46 EDT | Updated 08/20/2018 14:29 EDT

The Government's Drug Tester Kit May Lead To Unfounded Arrests

The device chosen for roadside saliva tests is simply part of a disturbing trend in cannabis legalization: regulate first and research later.

With the legalization of recreational cannabis just around the corner, one of the big questions has finally been answered: what device will the government approve for saliva testing roadside? In late July, the Canadian government announced its intention to approve the Draeger DrugTest 5000 for the purposes of conducting roadside saliva tests.

Under Bill C-46, Canada's Impaired Driving Act, the police will gain new powers to demand a saliva sample from drivers, and test that sample for the presence of a variety of drugs. The results of that test will then be used to give the officer the power to arrest a person and subject them to further, more comprehensive, testing at the police station, potentially including a blood or urine sample.

But what does the Draeger DrugTest 5000 actually do? And will it be fair to drivers? These questions are as important as the issue of removing impaired drivers from the roadways. Unfortunately, however, it appears that little thought went into those considerations before the decision to approve this device.

Roberto Machado Noa via Getty Images
A Toronto Police Service officer giving a speeding ticket to a driver parked on the side of the road on March 9, 2016.

The Draeger DrugTest 5000 is designed to test for amphetamines, designer amphetamines, opiates, cocaine and its metabolites, benzodiazepines, cannabinoids, and methadone. However, it's unclear from the available literature whether it is THC-specific or testing for cannabinoids as the manufacturer's literature is inconsistent on this point.

Testing for cannabinoids is problematic, because although THC is a cannabinoid, so too is CBD, which is non-impairing and used for its medical and therapeutic effects. In fact, there are 113 cannabinoids in the cannabis plant, and many of the ones present in cannabis marijuana are also present in hemp. CBD is non-psychoactive and non-impairing. And yet it will show up on the Draeger DrugTest 5000, which means that people using CBD for medical treatment and with no impairment whatsoever will nevertheless be subject to arrest and further drug testing.

A device that is not specific to THC will only lead to false arrests, and the prosecution of innocent people with serious medical conditions that cause them to perform poorly on the Drug Recognition Evaluation tests.

The Draeger DrugTest 5000 has certain operational requirements. For example, the manufacturer recommends that the analyzer unit be tilted no more than 10 degrees. Operationally, in a roadside stop scenario, this means that police will not be able to conduct the analysis properly on the hoods of vehicles, by holding the unit in their hands, or possibly even on the trunk depending on the slant.

A person could be detained roadside for 10 to 20 minutes just to get a sample reading.

Furthermore, the manufacturer recommends a 10 minute deprivation period from eating, drinking or smoking before providing a sample. The police will likely have to observe individuals for 10 minutes at the roadside before even collecting a saliva sample from them, to ensure they place nothing into their mouths.

This becomes a significant concern with Charter rights. The constitutionality of roadside drug and alcohol testing hinges upon the tests being administered quickly. The law requires that they be conducted immediately. Waiting 10 minutes before taking a sample due to the operational requirements is one thing, but the device also takes a significant period of time to do the analysis.

The training video for the device clearly indicates that it takes from one to four minutes to collect enough saliva for the device to be capable of performing an analysis. Moreover, the literature for the device indicates that the entire sampling process takes up to 10 minutes. This means that in total, a person could be detained roadside for 10 to 20 minutes just to get a sample reading.

This is a far cry from the immediate testing contemplated in the early days of roadside alcohol testing. It's also a significant concern for constitutional violations. During these 10 to 20 minutes necessary to take a sample and perform the tests, drivers are not permitted the right to speak with a lawyer. They are not permitted any legal advice. And don't even think about refusing the test: it's a criminal offence to refuse to comply.

Getty Images
Police officer (20s) conducting sobriety test on woman.

Worse still is that the device's operating temperature range is from five to 40 degrees Celsius. This is hugely problematic, as many parts of Canada fall outside this temperature range a good portion of the year. Thus far, no police agencies or government have addressed how they are going to mitigate the inherent restrictions in temperature operation.

This device is simply part of a disturbing trend in cannabis legalization: regulate first and research later. That fact becomes abundantly clear when noticing that the Draeger DrugTest 5000 was not even one of the devices pilot tested across Canada. And while there were flaws related to temperature and ease of operation identified in the devices tested across Canada, at least there was some effort put into using those devices in a real-life setting before deciding whether they should be approved.

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But why research when you can regulate and let the courts sort it out? After all, what's a few wrongful arrests and unfounded convictions when saving lives is on the line? There is little justification from the Minister of Justice for the use of this particular device over any others.

What is clear is that saliva testing devices, including the Draeger DrugTest 5000, are not technologically advanced enough at this point in time to be consistent with Charter rights, or climate, in Canada. The technology will have to catch up to the standards our law requires if the government hopes to continue using this device.

Canadians, and in particular cannabinoid users, should be deeply concerned about their rights when this device hits the road in October.

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