Cannabis DUI charges after passing the breathalyzer test

If you blow under Ontario police may accused you of cannabis impairment instead of alcohol.

If the police, wrongly or rightly, believe someone is impaired they will make a roadside demand for a breath sample into an approved screening device (ASD). This test will show either pass, warn or fail. Police are supposed to have probable cause to make the demand meaning they have observed signs of impairment. When a person passes the ASD breath test by blowing a 0 or something under the .05% BAC warning range, the officer may then switch their focus and accuse the driver of being impaired by drugs such as cannabis instead.

After the officer’s initial belief is proven to be wrong (the person was not drunk), they may assume cannabis is to blame for their perception of the accused's behaviour. Tunnel vision may lead the officer to wrongly look for confirmations of their now biased opinion that the driver is not sober. The problem is that roadside observations and even more thorough tests by the “drug recognition expert” at the station are always ultimately just a matter of opinion. They are not conclusive.

Blood tests should be used to prove cannabis impairment, but may be be possible.

Blood tests for THC levels are not always available in Ontario because only a limited number of people are qualified to draw blood samples from the accused. The police may not have the resources or are lazy to go through the steps to collect the blood. Without a blood test it is much harder for the Crown to prove in court that the accused was driving while high. Cannabis DUI cases are harder to prove than ones involving alcohol.

If the police wrongly suspect alcohol impairment first they may then falsely accuse you of cannabis impairment (ie. "he must be on something"). Such opinions are biased and lack credibility.

When the officer's focus switches from alcohol to cannabis after their suspect passes the breath test, it may be because they feel compelled to be right and justify their initial observations. They may not want to admit they were wrong about your impairment. People have different personalities and social skill levels which can sometimes be misconstrued as impairment. DRE officers can also misinterpret the behaviour of the accused. They do not know the accused or how they normally speak and present themselves (let alone how they and react to stressful situations).

Just because the police at the roadside and later at the station are of the opinion that you were high on cannabis (or something else) does not make it true.

The opinion of the officers is just that: an opinion. Their opinion does not make you guilty. Guilt or innocence can only be determined by the opinion of the judge in court. Judges acquit people of cannabis impaired driving in Ontario all the time because the Crown has not proven impairment or because reasonable doubt has otherwise been raised.

If the officer first suspects alcohol and then switches to cannabis, their credibility may raise reasonable doubt as to the reliability of their evidence in court. Confirmation bias is a problem in cannabis DUI cases which can sometimes work in the accused's favour.

You don't have to jeopardize your future or waste thousands of dollars on excessive legal fees. We provide effective and affordable lawyer representation for those charged with impaired driving throughout all of Ontario, Canada.

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