Driving Under Influence of Marijuana

[StoneMtn]

A recently reported judgment of the Provincial Court of British Columbia underlines the problems with attempting to prosecute someone for impairment of their ability to drive as a result of ingesting marijuana...

R. v. D.J.H.

[2004] B.C.J. No. 2823 (P.C.B.C.)

FINDINGS OF FACT

¶ 62 On the 4th of April 2002, H was the operator of a motor vehicle which crashed at approximately 21:53 hours. The Crown argues that the manner of driving leading up to the collision demonstrates a complete lack of judgment and totally reckless manoeuvres which are indicative of impairment. While that may be so, I find that the driving, while dangerous and reckless, does not assist the Crown very much in proving impairment. The Crown further submits that observations made of the Accused shortly after the accident and in the hospital also point to impairment.

¶ 63 Const. Jameson, who dealt with the accused at the scene of the accident, said the accused's response was slow, he "just stared", he would answer, but was a bit in shock. She did not smell marijuana or alcohol on the breath of the accused and noted no symptoms of impairment.

¶ 64 The ambulance attendant who transported H to the hospital said that he seemed confused.

¶ 65 Dr. Hsu was the treating physician at the emergency ward in Langley Memorial Hospital. He said H was oriented to person and place but did not know date or time. He said this was unusual. Dr. Hsu examined H just after 22:50 hours. He did the "ABC test" and found his airway was fine, his breathing was fine and his circulation was fine. He said H was alert, his vital signs were stable, his pupils were equal and reacted to light and his movements were normal and visual acuity was grossly normal. There were no indications that H was impaired by alcohol or a drug and as a result Dr. Hsu never ordered toxicology tests. Most importantly, Dr. Hsu said there was no evidence that H was suffering from shock.

¶ 66 In summary, there is virtually no evidence of impairment by alcohol or drug based on the physical observations of H by the various witnesses at the scene and at the hospital. Therefore, the Crown's case against H on the charges of impairment by marijuana rests almost exclusively on toxicology tests performed on blood removed from H, and the expert opinion tendered by Dr. Huckin, based on those results.

...

¶ 77 The results of the toxicology tests are set out in Exhibit 16 and indicate a THC level of 144 micrograms per litre. Dr. Huckin said that that THC level was one of the highest levels of THC they had tested in 7 years. He said there is a consensus of expert opinion that a level of 35 micrograms per litre will affect a driver's ability to drive. The level of THC in the blood of H is 4 times that level.

¶ 78 Dr. Huckin also gave the opinion that based on the fact that the THC level in the blood of H was 4 times the carboxy level, that H would have smoked Marijuana within one hour prior to the blood being drawn.

¶ 79 It is obvious from the facts in the case at bar, that either there was something wrong with the testing or with Dr. Huckin's opinion on that issue, in that the collision took place at approximately 21:53 hours whereas the blood of H was drawn at 23:55 hours, some two hours later. I find it was virtually impossible for H to have smoked marijuana within one hour of the time the sample of blood was taken.

¶ 80 The Crown and Dr. Huckin obviously realized something was wrong and Dr. Huckin was recalled to give further evidence on this point. When recalled, Dr. Huckin stated the blood specimen from H was taken after a substantial collision and therefore, he may have been in shock. If he was in shock, the metabolism of H would slow down and therefore the doctor stated that it may have been as early as one hour before the collision rather than one hour before the taking of blood that H smoked marijuana. The problem with the assumption that H may have been in shock, is that it flies directly in the face of the evidence of Dr. Hsu who examined H in the hospital before the blood sample was taken, and concluded that H was not in shock.

...

¶ 82 Mr. Jeffrey agreed that the THC level detected in the blood sample at a level of 144.5 micrograms per litre is an extremely high THC level. He said it's the highest one he has ever seen.

¶ 83 Mr. Jeffrey gave evidence that marijuana was a very unique drug, very different from alcohol, for example, in the way that it is eliminated from the blood. He said the marijuana smoke goes into the lungs and into the blood causing the THC level to rise very quickly but that the THC level will then drop very quickly as the marijuana dissipates quickly into the fatty tissues of the body. By way of example, he stated that if H had a reading of 144 micrograms per litre at the time of driving, then two hours later, at the time the blood sample was taken, the readings would drop to between 5 and 10 micrograms per litre. Therefore, while he confirms that Mr. Khan appeared to perform the analysis correctly, he was unable to explain the high readings obtained.

¶ 84 Casting further doubt on the extremely high reading obtained, Mr. Jeffrey stated that at a level of 144 micrograms per litre he would expect a person to display physiological symptoms such as increased heart rate, increased blood pressure, red and dilated eyes and slight muscle tremors. He also said at the 144 level there would be obvious odour of cannabis on H and he would likely display a happy, carefree, laidback attitude, perhaps laughing. In fact, no odour of marijuana (cannabis) was observed on H by anyone and he did not appear to display any of the symptoms which Mr. Jeffrey would expect.

CONCLUSION

¶ 85 The only evidence indicating that H was impaired by marijuana flows from a toxicology test conducted on a sample of blood resulting in extremely high concentration of THC. The burden is on the Crown to prove beyond a reasonable doubt that

(a) the blood tested was blood taken from the accused;

( the blood was not tampered with or contaminated in any way prior to or during testing;

© the THC level in the blood of the accused at the time driving would impair his ability to drive.

¶ 86 Unlike the cases involving impairment by alcohol, there is nothing in the Criminal Code making it an offence to drive a motor vehicle while having a certain level of THC in the blood. Also, unlike alcohol, there is no presumption in the Criminal Code to the effect that the THC level in the blood of the accused at the time the sample was taken is deemed to be the THC level in the blood of the accused at the time of driving. The current state of the law makes it very difficult to prosecute anyone for the offence of impairment by marijuana, and that may explain why prosecutions are so rare.

¶ 87 In summary, I have a reasonable doubt with respect to the charges that the accused's ability to operate a motor vehicle was impaired by marijuana. My doubt is based on the following findings of fact:

(a) Despite an extremely high THC level alleged in the blood of the accused, he displayed virtually no symptomology of impairment and no odour of marijuana to those who observed him, namely, the police officers, ambulance attendants and the emergency doctor.

( The fact that the Crown's expert witness stated that unless the accused was in shock (which he was not) he must have smoked marijuana within one hour prior to the taking of the blood sample. In the case at bar, it was impossible since the accident occurred two hours before the taking of the blood sample and the accused was always in the presence of either police officers or medical personnel during all of that time.

© The conflict in the evidence of the experts as to how quickly THC dissipates from the blood. Mr. Jeffrey, the expert called by the defence, testified that even if the accused had a reading of 144 at the time of driving, his readings two hours later at the time of taking of the blood sample would be between 5 and 10. That level is not necessarily consistent with impairment.

¶ 88 Since the Crown has failed to prove beyond a reasonable doubt that the accused was impaired at the time of driving, I find H not guilty with respect to Counts 4, 5, and 6.

MacDONALD PROV. CT. J.

[Esau]

Interesting read,thanks for posting this.

Although,he could have eaten some ganja food,which would (or could) result in a higher THC level,no smell on him or in car etc.

He also said at the 144 level there would be obvious odour of cannabis on H and he would likely display a happy, carefree, laidback attitude, perhaps laughing. In fact, no odour of marijuana (cannabis) was observed on H by anyone and he did not appear to display any of the symptoms which Mr. Jeffrey would expect.

I guess he watched reefer madness prior to court to brush up on the effects of herb....

[AdamH]

Very interesting post, thanks StoneMTN.

What is the status of roadside breathalyzers that detect marijuana? Or the hair tests? Or those a part of the RIDE program?

[StoneMtn]

As many of you know, I'm not a criminal defence lawyer. I just happened to come across this recently-reported case because it came across my desk in another context.

For that reason, I really have no expertise with which I can say I feel comfortable to give an opinion on roadside breathalyzers detecting marijuana or hair tests. As well the RIDE programme (or "Drinking and Driving Counterattack" in BC) is another issue on which I don't have expertise.

I try never to give an opinion unless I truly know the answer, so I must decline to answer in this case. I posted the excerpts from the above case as I knew it would interest some of you, and I can confidently say that this is what the Court said. Beyond that, though, I leave it to you guys to research these other, related issues, or I leave it to a criminal defence lawyer or Crown Counsel to provide their own two cents in this thread; although I don't think that is likely to happen...

[AdamH]

Five stars for your well-meaning and well-crafted lawyerspeak!

[bokonon]

well-meaning lawyerspeak?!? isn't that a contradiction in terms? ::

[Basher]

Q: What's the difference between a drunk driver and a stined driver?

A: A drunk driver runs through stop signs, a stoned driver waits for the stop sign to turn green.

(one of my favourites)

[Boochawan]

I find it incredibly odd that the prosecution didn't question H under oath to whether or not he ingested marijuana (or a THC containing compound). The attending physician and the lawyers need to brush up on their pharmokinetics...the rate of onset is much slower via the oral route of administration than of smoking - that's their evidence right there to why his THC levels were so high 2 hours after the accident

[Kaidy Mae]

A little info on the U of T study from a few years back. A similar study was done in Germany with the same results (although I can't find the link I was looking for right now).

http://www.marijuananews.com/marijuananews/cowan/marijuana_induces_minimum_drivin.htm

[Steve from Cleveland]

This is an article from here in the States (in particular, the state of Ohio) from just under a year ago. Goes to show how out of control our government is with respect to marijuana, etc. And this in a state which has decriminalized posession of small amounts of marijuana... Ridiculous...

http://www.mpp.org/OH/news_7396.html

Basically if the bill passed, people could be prosecuted for having ANY THC OR IT'S METABOLITES (or those of any illegal drug) in one's system... We are probably all aware that pot or its residuals stay in system for at least 1 month. So I smoke a joint and become legally impared to drive for at least a month... Ahhhh... Freedom....

I think that this bill was ultimately defeated, however it just goes to show what 'they' are trying to do...

[Kaidy Mae]

Interesting article S from C. I am always puzzled at how I can meet so many level-headed, kind folks from south of the boarder, yet disagree with American policies so strongly. I guess this is where the "R" word comes in. Aside from their distaste for freedom, that's the only common denominator I can find between Taft, Portman, Porter, Jacobsen and Austria. What a bunch of tossers!

Talk about forcing the individual states into compliance. I can't believe the threats of losing up to half of federal funding for highways. And mandatory minimums??? Still one of the most retarded concepts ever conceived. Ba! I hope for everyone's sake that this doesn't go through.

Poor Steve.

[PalacePrincess]

polkaroo - resident thread rater

[Steve from Cleveland]

Yeah, it's puzzling, alright... Although I find that many people from different countries disagree with many policies in their own countries as well as those of other countries. I personally disagree with many American policies (namely those relating to drugs and the 'war on drugs'.

That being said, I must also note that I am a bit discouraged and dismayed by the idea of the average 'American' that is prevalent in other countries/cultures. People just assume that we are all ignorant, backwards, gun-toting hillbillies. To some extent these stereotypes fit, but not to all, and I would contend, not to the majority. I would say the biggest quality people like to ascribe to Americans is ignorance... This is interesting, because I've found that it isn't so much ignorance as it is apathy. Ask someone who doesn't vote why they don't and they'll likely say either A) It doesn't matter who I vote for, it doesn't 'really' count or All the candidates are assholes.

This is a problem, because if one believe A) it is almost impossible to convince them otherwise (largely because it is true), actual elections are decided by electoral college votes not by popular vote. I believe that it DOES matter, but that ONE vote CAN NOT change the election.

If one believes B, they are also largely correct. The majority of politicians ARE corrupt, CAN be bought, and so on... People are given choices between 2 (or more) people who are NOTHING like them, who CAN'T represent their interests, because they are so far removed from them. It's like the South park episode where the kids are dismayed because they have to choose between a douche bag and a turd sandwich. And to make it worse, regular people CAN'T get into office, because of the financial burden of running a successful campaign. Essentially, the winner of elections are those who raise and effectively spend the most money, not those who have the best, most progressive ideas...

And if one doesn't believe s/he can effect change within the system, it becomes nonsensical to participate in it. I tend to disagree, but the fact is that the MAJORITY of Americans DID NOT VOTE. So at the same time, it seems silly to call the majority of Americans ignorant, when it's really our politicians who are ignorant backwards hillbillies who DO NOT REPRESENT the majority of Americans in anything other than voice (And their (politicians) voice is quite different than ours (people).

Coupled with that is the fundamental difference between our Constitution and the Constitutions of the other democratic societies in the rest of the world. Our Constitution is focused on NEGATIVE rights. That is, things people CAN'T take away from us (right to free speach, right to bear arms, right to not be taxed without 'representation' (a joke), etc... The rest of the 'civilized' world are granted POSITIVE rights by their constitution. For example, Canada grants all citizens the right to basic healthcare. Other countries focus on what the government should provide its citizens, while the US focuses on what the government can't take away from the citizens (though 'Homeland Security' puts this notion in jeopardy, and I still contend that many of the 'laws' in the HS Act ARE unconstitutional and will be found to be as such in courts of law eventually.

So, I guess, I can sum it up by saying that people are so quick to judge US Citizens based on the actions of the US Politicians. When, in actuality, the popular opinion and the opinion of the politicians is OFTEN VASTLY different.

Now, I have often said that I am (at heart) or want to be (in document) Canadian, and this is largely true. I do feel that Canadian law/policy is more aligned with my personal beliefs. Although I dream of obtaining Canadian Citizenship one day, I struggle with the issue of whether I would renounce my US citizenship to do so. I would definately be interested in Dual Citizenship, but don't knwo for sure that I would be willing to renounce my US. After all, it's where I was born, raised, etc, and despite our shortcomings and past mistakes (slavery, treatment of Native people, etc) I do feel allegiance to the country. So I am torn... But, that is a whole other discussion altogether.

This is probably pretty long-winded, and whether it makes sense or not, I don't know. Essentially what I was trying to convey is that I get frustrated when people say Americans are ignorant, idiotic, or whatever else people say, because these qualities, I think, do NOT reflect the 'Average" American. At least not the ones I associate with. Apathetic, sure... Ignorant, No...

And you probably don't want to know who I voted for...

I know many people on here probably disagree, but I wanted to put out my opinion out there, because I really do feel that people incorrectly generalize about what the average american is like. I think perhaps that's why you meet so many level-headed, kind Americans, yet disagree with US policy so strongly. Because a lot of us do as well...

Steve

[tigger]

Well put Steve , hope to see you in May again either in Chatham or at Izzies. later .

[Kaidy Mae]

Now, I have often said that I am (at heart) or want to be (in document) Canadian, and this is largely true. I do feel that Canadian law/policy is more aligned with my personal beliefs.

Thanks for that explanation Steve. It's always better to hear it straight from the horse's mouth. I think the irony here is that both Canadians and Americans can be incredibly ignorant in regards to each other. I lived in NoCal for few years and can honestly say that I have never met such a solid bunch of folks in my life. That being said, I've never been asked so many ridiculous questions before either.

"Do you have penguins in Toronto?" is my personal favourite. Other than in captivity, there are no penguins on the entire nothern fu©king hemisphere. I met people who actually believed that we had snow 12 months of the year and took dogsleds to work. It was pretty funny actually. On the other hand, when I mention that I lived in Cali, a lot of Canadians assume that you live in your bathing suit, that you can't go out after dark for fear of being gunned down in crossfire between the Bloods and the Cryps and that it's 95 degrees and sunny 365 days a year. Not many Canucks understand the simple geography of the States. I saw some awesome local hockey games down there, met some great environmental/peace activists and had (in some ways) more freedoms than I ever enjoyed in Canada. Really, where other than Golden Gate Park can you go to Sunday drum sessions and buy nitrous from a guy talking to a cop? Ignorance is bred on both sides of the border.

However, I think people are more vocal about their opinions of the US due to the war in Iraq. It is definitely an issue that few Canadians support. Sadly, few of us realize that there are hordes of Americans who do not support that decision either. I really feel for peaceniks to the south. I cannot imagine how saddened I would feel if my country went to war and our cries for resolution and peace fell on deaf ears.

Unfortunately, I don't think dual citizenship is much of an option. A friend of mine from Seattle got her landed immigrant visa because she didn't want to surrender her right to vote in US elections (despite the fact that her common-law husband and 2 kids are Canadian). She rocks!

There was also a great article about ex-patriates in Utne magazine last year (http://www.utne.com/pub/2004_121/promo/11032-1.html). One issue of concern is that if all US citizens wanting change simply left the country there would be no one left to fight for change. This is why I greatly respect my friend for keeping her voice in political matters because they do concern us all.

By the way, turd sandwiches are a delicacy in Canada.

[secondtube]

very well put Steve...

glad there's the other side to the story out there.

[Steve from Cleveland]

Thanks, Guys! I was actually surprised to have no negative reaction a few days after I made that post... It's good to know that you guys, if nothing else, appreciate the difference that can exist between one's personal politics and the politics of one's country... I really do not SUPPORT the war in Iraq, though at the time it started was more supportive of it than I am now... I do however feel for and support the troops who are over there because they HAVE to be. I have friends who have served in various conflicts including Iraq, and none of them WANT to be there. Also, during and after Vietnam, the way the troops were treated (Who also didn't WANT to be there) was a disgrace to humanity as far as I'm concerned. In this war, the politicians really DID do a pretty good job of unifying the country behind them, although their motives were proven baseless, and have since, mysteriously changed. When it started it was about keeping WMD out of bin Laden's hands (something that most people supported), and now it's about liberating the Iraqi People... Just another example of how shifty politicians are, and how unlike regular citizens they are at the same time...

So, anyway, thanks for the positive comments, I really expected SOME negative sentiment... Really, though I think that the majority of both Canadians and Americans have the same values and beliefs, though there are MANY cultural misunderstandings (I know you all secretly bobsled to work ) Actually a funny point to demonstrate this... A person on a message board was asking about cabins/cottages in Canada for a bachelorette party IN JUNE... People kept telling them not to go to Canda, because it will be SO COLD... They were tossing out ideas like Windsor, or N. Falls. I informed them of the farmhouse we used for NYE, and explained that in JUNE, Canada's weather (at least in S. Ontario) is almost exactly like it is in northeast ohio, and YES they would be able to go outside without moon boots and winter jackets... Silly...

Anyhow, with respect to the citizenship, I looked into it, and it looks like you're right about a "dualy." Unfortunate for me... Anyhow, I am still considering coming to Canada for my Doctoral Degree, because I am studying Bioethics (healthcare ethics, etc) and think it would be interesting and beneficial to get a Canadian perspective about the issues... Especially since I think that America has a LOT to learn from the way you guys distribute healthcare and allocate scarce resources. Though your system does have problems (long wait times for routine procedures, lack of research & experimental treatments and technologies to name a few) I find it to be, overall, more humane, in many ways, than our system. And if I'm gonna be stuck with my citizenship, I might as well try to bring some good ol' Canadian sanity south of the border, eh? And really, I would like to see our healthcare system reformed in many ways, and would like even more to be able to help bring about those changes. So I guess I should try to put myself into a position, armed with relevant knowledge, to actually affect they way people here think about the issues.

Anyway, there's another long-winded rant for you guys, and probably more info than you ever wanted to knwo about me...

Can NOT wait to see you guys in May... I am coming FOR SURE, so hope you guys are all able to make it out and enjoy it with me...

Steve