Is it Illegal to Drive Under the Influence of Marijuana?

As the government begins the process of legalizing marijuana and the use of the drug becomes more common amongst people in British Columbia, the question arises as to what exactly the law is around driving while high.

Driving While High

As it stands right now, the Motor Vehicle Act does not directly deal with marijuana.  It does, however, contain a general provision which permits police officers to issue 24 hour driving prohibitions if they suspect someone’s driving is impaired by drug use.  Police officers have used that section against people who are driving while high on marijuana.  If this provision is invoked, ICBC has the right to find the person in breach of his insurance, making him personally responsible for the cost of any injury and property damage claims arising from a car accident which occurred while the person was high.

In order for a police officer to issue the 24 prohibition, the officer has to be satisfied a) that the person has consumed drugs and b) the person’s ability to drive has been affected by those drugs.  In a recent court decision, Bandi v. Gustard, 2016 BCSC 920, the court set aside a driving prohibition even though the person had glassy and bloodshot eyes and admitted to the police officer that he had smoked a joint a few hours earlier.  The court held it is not only necessary for the officer to prove that a driver is under the influence of drugs, it is also necessary for that officer to prove that the driver was either driving erratically or displayed impaired physical ability as a result of the drug. Because the officer in Bandi could not meet the second part of this test, the suspension was set aside.  It is interesting to note that the Mr. Justice Leask stated he did not believe the “presence of glassy and bloodshot eyes is indicative of a driver’s ability to operate a motor vehicle.”

Marijuana Impairment

This standard which applies to drugs and driving is different than the standard for drinking—the drinking rules have a maximum threshold of acceptable level of alcohol in the blood and if someone exceeds that threshold, that person is in trouble.  The .08 threshold for alcohol is a limit which is grounded in scientific evidence.  The problem with marijuana is that they have not yet determined what the scientifically proven safe limit is when it comes to consuming the drug and driving.  Another problem is marijuana as a product is not unified so it cannot be said how much of a joint or how many joints makes someone too high to drive.  What really matters is THC levels in a person’s system and THC content can vary across product.  The issue is even further complicated by the fact that the presence of THC alone in someone’s body does not necessarily mean the person is impaired and one level of THC can affect two people in very different ways.

Marijuana and ICBC

Even if the government and ICBC determine what the threshold level for THC should be, there is still a problem because, as of right now, there is no universally accepted roadside test for marijuana impairment.  There are some devices which have been developed in Canada which purport to test THC levels on a person’s breath and others which test saliva, but for now police officers don’t have an official testing device.  It will be interesting to see whether the legalization of marijuana will cause an increase in the amount of ICBC claims in British Columbia and how long it will take the government and ICBC to have a plan in place to deal with it.

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