Driving High: Is the test for weed reliable?

As Canada prepares for legal pot, the federal government plans to spend as much as $80-million to train 750 police officers to smoke out high drivers. But how sound is the test? A Fifth Estate investigation raises serious questions, showing it can lead to false arrests, is prone to police bias and, according to one scientific expert, is no better at detecting high drivers than “flipping a coin”.

For now, there is no roadside test for marijuana like the breathalyzer test for alcohol. So police have to rely on tests based on observations and judgements – and that can sometimes turn out wrong.

We’ll show you the test, debate the science behind it and introduce you to Canadians who’ve been suffered because of it - putting the test to the test. We’ll also take you to the United States, where the American Civil Liberties Union is taking the police to court, and pose the question: is Canada headed for a similar legal stand off?

• An investigation by The Fifth Estate shows the tests done by police drug recognition experts (DREs) can lead to false arrests, are prone to police bias and according to one scientific expert are no better at detecting drug-impaired drivers than "flipping a coin"
• The DRE test is a 12-step process that involves examining a suspect's vital signs, eyes, balance and ability to concentrate and then rendering an opinion
• Drug recognition experts have been operating in Canada since the 1990s
• Canada is set to significantly increase their numbers as marijuana is legalized
• In preparation for legal weed coming in July, Public Safety Canada recently announced it's going to invest up to $81 million in new law enforcement training, paying to train 750 more drug recognition experts over the next five years and more than 3,000 officers to administer a shortened version of the observational test known as the Standardized Field Sobriety Test
• The American Civil Liberties Union in Georgia recently launched what is believed to be the first civil challenge in the U.S. on behalf of four drivers wrongfully arrested by police officers trained as drug recognition experts

Like 'flipping a coin': Why it's so hard to test drivers for pot

The federal government plans to invest $81 million to train police officers to smoke out drivers impaired by pot across Canada while using a test experts say is flawed and that is being challenged in a U.S court.

An investigation by The Fifth Estate shows the tests done by police drug recognition experts (DREs) can lead to false arrests, are prone to police bias and according to one scientific expert are no better at detecting drug-impaired drivers than "flipping a coin."

"You can't hijack science in the name of law enforcement," says David Rosenbloom, a clinical professor in the Department of Medicine at McMaster University in Hamilton, Ont.

"We know that with high enough concentrations [of marijuana] in the blood that driving is impaired so it's not that we don't need tests of impairment, it's just that we need valid tests of impairment, and at this point in time we don't have them."

The DRE test is a 12-step process that involves examining a suspect's vital signs, eyes, balance and ability to concentrate and then rendering an opinion.

• Province way behind in dealing with marijuana-impaired driving, says lawyer
• Government releases legal limits for drugged driving but can't say how much pot is too much

For Rosenbloom, the science of the test simply is not there.

"It's equivalent of flipping a coin, it's 50/50 as to whether we know the person was impaired or not."

Taxpayers 'should be outraged'

Meanwhile, the American Civil Liberties Union in Georgia recently launched what is believed to be the first civil challenge in the U.S. on behalf of four drivers wrongfully arrested by police officers trained as drug recognition experts.

The ACLU has a warning for Canada.

"I think that Canadian police departments need to think twice about pouring millions or billions of dollars into a failed system that has not worked in the United States," says Sean Young, legal director for the ACLU in Georgia.

"And the taxpayers of Canada should be outraged that their precious dollars are being wasted on this program that just results in more innocent people being thrown into jail."

Drug recognition experts have been operating in Canada since the 1990s. However, Canada is set to significantly increase their numbers as marijuana is legalized.

In preparation for legal weed coming in July, Public Safety Canada recently announced it's going to invest up to $81 million in new law enforcement training, paying to train 750 more drug recognition experts over the next five years and more than 3,000 officers to administer a shortened version of the observational test known as the Standardized Field Sobriety Test.

Canada's minister of public safety, Ralph Goodale, declined a request to be interviewed for The Fifth Estate investigation.

In a statement, Goodale said he believes there is enough evidence to support the use of DREs, pointing to a recent review by the Canadian Centre on Substance Use and Addiction that found DREs are "valid and reliable."

• Click here to read Goodale's full statement

That same review, however, also cautions that when it comes to detecting impairment, DREs have a "modest degree of accuracy," between 43 and 62 per cent.

• Read the CCSA study

A recent report from Statistics Canada shows our system for convicting high drivers fails almost half of the time. Suspected drug-impaired drivers walk free nearly 40 per cent of the time, or twice as often as alcohol-impaired drivers.

In his statement, Goodale acknowledges more research in this area is "critical," but is also hopeful a new saliva test in the works will help police determined if someone has recently consumed drugs.

'I knew I was innocent'

Two Ontario drivers came face to face with the flaws in Canada's system last year when they were arrested for impaired driving by drugs after separate car accidents.

Corinne Fardy slammed into a parked construction vehicle while she was travelling on Highway 11 near Parry Sound.

The police report into her accident, obtained by The Fifth Estate, says they found her to be "unsteady on her feet," she "had a white coated tongue" and that she was "fumbling" and had "poor dexterity."

She was arrested, handcuffed and put in jail. In the end, a drug recognition expert conducted the test and concluded she was impaired by drugs and charged her with the criminal offence of driving while impaired by drugs.

"I was in shock. I knew I was innocent," she told The Fifth Estate.

The unsteadiness, she says, was caused by injuries to her legs from her airbags going off. Her tongue is always coated white, she says, from medication she takes and she was in shock from the accident, which she says explains her shakiness.

After three months, the police dropped the charges, accepting that the symptoms observed by the DRE could have been caused by the accident.

"I was upset with the way they treated me."

Slurring speech

Like Fardy, Harry Rudolph was arrested for drug-impaired driving by last year. Once again, the police misunderstood his symptoms, this time with serious consequences.

The Toronto man was driving along a county road in Britt, Ont., when he swerved and hit a boat ramp on the side of the road. Then the police showed up.

"The police insisted Harry was high," his friend Dave Phillips says.

Rudolph was "slurring speech, disoriented, stumbling, and when they got him out of the vehicle he wasn't able to stand real well," Phillips said.

But Rudolph wasn't high. He was having a stroke. Instead of getting prompt medical care, Phillips says Rudolph was arrested for drug-impaired driving and put in a holding cell for the next 5½ hours.

That decision, says Phillips, has forever affected his friend's life. Rudolph can now barely talk and has serious memory problems.

"Harry could've gotten the medications that they give to a stroke victim and right now we may not even be having this conversation."

The Ontario Provincial Police say they can't talk about the arrest for privacy reasons. Rudolph now has a civil lawyer looking at his case.

Detecting the pot smoker

When a police officer suspects you've been driving high, typically they ask you to perform a short roadside test that involves looking at your eyes and walking in a straight line.

If you fail that test, you are arrested and taken to a police station where a DRE conducts a much more involved test, 12 steps in total, over the course of about an hour.

For step 12, the police take a fluid sample, typically urine, to confirm or refute the findings of the DRE.

The RCMP calls this a "key" part of the test.

Steve Maxwell, a retired Ontario Police officer and instructor for drug recognition experts, recently conducted a demonstration of the test for The Fifth Estate.

He was presented with three people, including one who has a medical marijuana licence and recently smoked. Maxwell succeeded in spotting the smoker.

"People get killed, so that's why we need to detect these people and test them," says Maxwell.

He says high drivers represent "the same danger as any other driver that's impaired by alcohol. The end result is the same."

Maxwell believes the test works. He points to a 2009 study that shows Canadian drug recognition experts successfully identified the class of drug more than 90 per cent of the time, in more than 1,000 cases.

But spotting actual impairment, he says, is more difficult.

"It's not a machine that spits out a number. It's subjective. DRE evaluation is subjective from the beginning," he says.

'Hard time being unbiased'

Maxwell now works as an expert witness, defending people wrongfully arrested as a result of tests by drug recognition experts.

"What I'm finding or that I'm seeing is that police officers have a really hard time being unbiased," he says.

When a suspected drug-impaired driver is arrested and brought in, the DRE often knows the arresting officer, and might feel pressure to confirm what the arresting officer believes.

"Now I'm going to evaluate them," says Maxwell. "I don't want to disappoint my buddy."

Rosenbloom goes further, arguing the test should be thrown out all together.

"I think the answer is to develop tests that are validated in a scientifically appropriate way and have these implemented instead of the pseudosciences being applied today."

Rosenbloom is equally concerned with the federal government's plan to introduce saliva tests. While there is no timeline for that, the government's new impaired driving law allows them to be used by police.

The tests won't detect impairment, but will detect recent drug use. Rosenbloom says, at least so far, they've been shown to be just as unreliable as DREs.

The Supreme Court of Canada recently decided drug recognition experts in Canada can automatically testify as experts.

But Rosenbloom points to a series of court decisions in the U.S. that went the other way. Courts in six different states refused to let them testify as experts.

A Maryland court was blunt. In a 2012 decision it said: "The training police officers receive does not enable DREs to accurately observe the signs and symptoms of drug impairment, therefore, police officers are not able to reach accurate and reliable conclusions."