Frequently Asked Questions
Can you be Charged with Impaired Driving for Being on Prescription Medication?
It is possible to be charged with impaired driving while on prescription medication. Section 320.14(1)(a) of the Criminal Code makes it an offence for an individual to drive while their ability to do so is negatively affected because of any drug, alcohol, or combination of the two. The focus on the act of driving and a person’s ability to do so is deemed more important than the exact substance causing the impairment. The law does not specify consequences beyond the classification of drug or alcohol.
It is a person’s personal responsibility to determine if and how their medication will affect them. Someone who knows their medication will impair their ability to drive should not be driving on the roads of Orangeville after taking a dose. Furthermore, ignorance of the impact a medication may have is no defence to an impaired driving charge because many, if not all, medications will have information or labels that indicate if a person should not be operating heavy machinery such as a car, while taking it.
What is a Field Sobriety Test?
A field sobriety test is a series of evaluations conducted by the police at the roadside to determine if a person is under the influence of drugs. They are usually used when a suspected impaired driver has been pulled over, but there is no indication that they have consumed alcohol and the mandatory screening conducted on an Approved Screening Device does not register a failure.
In those instances, police will call for a drug recognition expert to come conduct a field sobriety test. The exact nature of these tests can vary, but they are all aimed to test a person’s alertness and coordination. As is often seen in movies or other media, the tests might include having the driver walk a straight line, maintain their balance when standing on one leg, or reciting the alphabet backwards. Failing these tests will result in a person being arrested for impaired driving and brought to the police station for further testing. An example of a field sobriety test can be seen in the Provincial Court of Nova Scotia case of R. v. Rowe, 2022 NSPC 15 at paras 11-12.
What is a Drug Recognition Examination?
A drug recognition examination is the next step following a failed field sobriety test and an arrest for an impaired driving offence. It is also conducted by an expert, as would a traditional breathalyzer test. As part of the examination, the expert will take notice of the accused’s appearance, including such indicators of drug impairment as glassy or bloodshot eyes, slurred or excited speech patterns, or agitated behaviour. The expert will also ask questions of the accused to determine their mental state. Finally, the expert may ask the accused to provide a blood or urine sample to determine if they have drugs and/or alcohol in their system, as well as the type and concentration where necessary.
The results of the drug recognition examination are usually the main evidence that an impaired driving offence has been committed. The case of R. v. Rowe, referenced above, describes the content of a drug recognition examination at paragraphs 13-27. Though that case did not include any bodily samples being taken.
What is the Difference Between an Approved Screening Device and a Breathalyzer Machine?
An Approved Screening Device or ASD is a device carried by police that can be used to determine a range for a person’s blood alcohol concentration (BAC) once they provide a breath sample following a legal demand made by police, typically on the roadside. The ASD will indicate if a person’s BAC is either below the legal limit, within the warn range of 0.05-0.079 mg of alcohol in 100 mL of blood, or if the BAC exceeds 80 mg, which is the threshold for a criminal charge. If a person’s sample registers a failure on the ASD, that will be sufficient grounds to arrest an individual and take them to the police station for further testing.
Once at the station, the accused will undergo an official breathalyzer test. These tests are overseen by certified experts and require a person to provide two breath samples, at least 20 minutes apart. The breathalyzer will then determine a person’s exact BAC and these results are the main evidence of an impaired driving offence. The Ontario Court of Justice case of R. v. Lochead, 2021 ONCJ 432 provides an example of this two-stage process at paragraphs 10 and 13-14.
Can the Police Take a Blood Sample Without a Warrant?
After being arrested and as part of a drug recognition examination, the police can take a blood sample in one of two ways. Under s.320.27(1) of the Code, the police can demand that a person provide a blood sample and they must comply or else be charged with refusing a demand under s. 320.15 of the Code.
Or, the sample can be acquired according to the process set out in s. 320.29(1) of the Code which states the police can obtain a warrant to authorize them to, “ require a qualified medical practitioner or a qualified technician to take the samples of a person’s blood.