With the new legislation in Canada and Ontario making it legal to buy and consume recreational cannabis, there is also new legislation around driving while impaired by cannabis. Specifically, it is illegal to be driving in Ontario with the chemical component THC in your system. If you want to learn more about the new laws surrounding the testing and punishment of being impaired by the THC in cannabis, we wrote this guide to help.
What Is THC?
THC stands for tetrahydrocannabinol, the chemical component in cannabis that is what causes your brain feel more psychoactive in the manner that makes you feel high or euphoric. It is the mind-altering effects of THC that has been found to cause impaired driving after consuming marijuana.
The Difference Between THC & CBD
It is important to note that not all marijuana contains THC. Most medical marijuana, for example, contains CBD (cannabidiol) instead of THC. CBD is different kind of chemical component that does not get you high or impair your motor or mental functions. It is used in medical marijuana because it has been found to be able to treat a number of medical conditions or symptoms, especially those related to pain and mental illness, without affecting your mental faculties.
Canadians who are 19 years of age and older are now able to legally buy and use cannabis containing CBD or THC without requiring a prescription, including products that are meant purely for therapeutic rather than recreational purposes. That means you will be able to buy products that contain little to no THC in your system, so they will no get you high and will not appear in your system when you are tested by police.
Be careful, though — while medical and therapeutic marijuana may have CBD as the primary chemical component, some will still have traces of THC because it can treat other medical conditions and symptoms that CBD cannot. Make sure you do your research into what type of cannabis or cannabis-products you buy or are prescribed to avoid driving a vehicle while impaired.
Why Are Police Only Testing for THC?
The reason why the legal system is only set up to test and punish drivers who have THC in their system, and not other cannabis chemicals, is because THC is the only chemical component that affects a person’s mental faculties in a way that can lead to them to driving in an unsafe manner.
The problems with THC are very similar to those of alcohol when you consume enough of it:
- Impairs your judgment
- Decreases your motor coordination
- Decreases your reaction time
How THC Stays in Your System
The role played by marijuana in crashes is often unclear because it can be detected in body fluids for days or even weeks after intoxication and because people frequently combine it with alcohol.
How Police Test for THC in Your System
The science and technology around reliably testing for the levels of impairment due to THC being in your system is much newer and less refined than for alcohol. Part of the reason is for how THC stays and is found in your system compared to alcohol (more on that below), but also because drinking and driving has been a high profile issue a lot longer than consuming cannabis and driving has.
Here is how you will be tested by police.
Drug Recognition Evaluation
When a police officer pulls you over, they must have reason to believe that you are driving while impaired by cannabis or other drugs. This includes if they saw you driving erratically or dangerously, or how you speak and interact with the police officer. They may perform basic sobriety test at the location in which they pulled you over, and if they believe you are currently impaired by drugs they may take you to the police station to perform a more sophisticated Drug Recognition Evaluation.
This test is more thorough and will determine if you have THC in your system at a high enough level to impair your driving ability. If you fail this test, you may be arrested and/or punished depending on the level of THC present in your system and the degree of impairment and unsafe driving you were exhibiting. See the section on punishments below for more information.
Saliva Screening Devices
Ever since the Government of Canada has enacted legislation that would make cannabis legal to grow, sell and consume in each province, they have also worked towards establishing more accurate and timely testing for impairment. Alcohol can be tested on site with a breathalyzer, for example, but until recently there was no such test that was accurate and fast enough that could also be used at the scene where you are pulled over.
Now, however, there has been newly proposed legislation that would give police officers a new testing device to use at the side of the road when they pull someone over. These new devices use your saliva to test if you have consumed an illegal level of cannabis with THC within the last 6 or so hours, when you are more likely to be significantly impaired.
Laws for Driving with Cannabis In Your System
Ontario will be starting with a zero tolerance policy for driving a vehicle while under the influence of cannabis. If a police officer suspects you to be under the influence, you will be detained, screened and tested to determine if you have any THC in your system.
Any level of THC in your urine will result in some kind of punishment, but it may not result in being charged with a criminal offense or showing up on your criminal record. Here is where the cutoffs are for most drivers:
- 2 to 5 nanograms of THC per mL of blood — summary conviction and up to a $1,000 fine. A summary conviction is a lesser punishment that will not affect your criminal record, and is more precautionary to teach the driver to avoid having any THC in their system while driving.
- 5+ nanograms of THC per mL of blood — you will face more serious penalties (see more in the next section below) including being charged with a criminal offense.
- 2.5+ nanograms of THC AND 0.5+ blood alcohol concentration (BAC) — you will face at least the same level of penalties as having more than 5 nanograms of THC in your system
Hybrid THC & Alcohol Impairment
It is considered more dangerous to be driving while under the influence of both alcohol and THC. Ontario therefore has a hybrid offense with stiffer penalties to people who have a BAC of .05 combined with a THC level over 2.5 nanograms.
Zero Tolerance for Young, Novice & Commercial Drivers
If you are 21 years old or younger, if you have a learner’s driver’s license in Ontario (G1, G2, M1, M2), or if you are driving a commercial vehicle or road-building equipment, there will be even lower tolerance for having any THC in your system.
Exceptions for Medical Cannabis Users
If you have a legal medical prescription for cannabis, the Ontario government will allow greater leeway for driving with THC in your system (unless you are a young, novice or commercial driver).
If a police officer is satisfied that you are legally authorized to use cannabis for medical purposes, you will not be subject to Ontario’s zero tolerance drug requirements for young, novice and commercial drivers.
However, you can still face criminal charges if the police officer sees that it is clearly affecting your ability to drive safely. It is the responsibility of the driver who has a medical prescription to make sure they only operate a vehicle in a safe, unimpaired manner.
Legal Penalties for Impaired Driving
There are two kinds of legal penalties you may face if you are found to have been driving while impaired by the THC in cannabis: the first are immediate punishments that the police will enforce, and the second are further punishments if you are convicted in court of committing criminal offenses. What legal punishments you receive either immediately or if convicted will depend on a variety of factors, such as your age, license, prior convictions for impaired driving, and the level of THC and/or alcohol in your system.
There are four levels of penalties that you can receive immediately as a result of driving while impaired by the influence of cannabis and/or alcohol, depending mostly on if it is your first offense or how many offenses within 5 to 10 years you have on your record.
It will also depend on if you have levels of THC and/or alcohol in your system within the warning or illegal ranges, if you fail the field sobriety test performed by the police officer, if you have any traces in your system as a young, novice, or commercial driver, or if you refuse to consent to being tested for impairment.
Here are the immediate penalties you may face:
- Your license will be suspended for 3 to 90 days days without chance of appeal
- You will be fined between $250 and $550 (starting in January 2019)
- Your vehicle may be impounded for up to 7 days
- You may be compelled to attend an education program about why it is dangerous to drive while impaired by drugs or alcohol
- You may have to pass a medical evaluation to determine if you are fit for driving in Ontario at all
- When your license is restored and you may legally drive again, you may have to have an ignition interlock device installed for at least 6 months to ensure you are sober before starting your vehicle
For all of the above license suspensions, you will have to pay a $198 reinstatement fee after the suspension period is over in order to have your license reinstated. These penalties are only what you will face in the immediate term, and you may face further penalties if you are charged and convicted of a criminal offense.
Additional Penalties for Impaired Driving if Convicted in Court
In addition to the above immediate penalties, you may also face further criminal charges that can lead to additional penalties if you are convicted in court. The seriousness of the penalties depends on the exact charges you face related to driving while impaired:
- Having between 2 and 5 ng of THC per mL of blood — a summary conviction and up to $1,000 in fines
- Having 5 ng or more per mL of blood — minimum $1,000 fine for your first offense, and between 30 days (second offense) and 120 days (3+ offenses) in jail
- Having 50+ mg of alcohol per 100 ml blood AND 2.5+ ng of THC per ml of blood — minimum $1,000 fine for your first offense, and between 30 days (second offense) and 120 days (3+ offenses) in jail
- Driving while impaired by cannabis without causing bodily harm or death — summary conviction includes maximum 18 months in jail, criminal indictment includes maximum 5 years in jail
- Driving while impaired by cannabis causing bodily harm — no summary conviction possible, criminal indictment includes maximum 10 years in jail
- Driving while impaired by cannabis causing death – no summary conviction possibly, criminal indictment includes maximum life sentence in jail
You can read more about the details involving convictions in court for driving while impaired by cannabis, alcohol, and/or other controlled drugs on the Canadian Department of Justice’s website.
Because legalization of marijuana in Canada is so new, there will be a lot of new information and processes in regards to how cannabis interacts with your system, how police test for impairment due to marijuana, and how you will be legally punished by the justice system if you are found to have driven while impaired. You should do your research using authoritative and trustworthy resources before you start consuming cannabis to know how you may be physically and legally affected.