‘Nobody is getting high on poppy-seed cake!’ says Kyla Lee of Acumen Law
But the maker of the device says the lawyer's tests are misleading and inaccurate. They say the device used for the tests was probably calibrated for different country — not the Canadian version specifically designed to test only for cannabis or cocaine.
The Dräger DrugTest 5000 is being tested as a screening device by officers in places such as Nova Scotia and Manitoba to fight drug-impaired driving.
This device has the potential to test saliva for seven types of the most commonly abused drugs. In Canada it is only used for two drugs — cannabis and cocaine.
It's touted as non-invasive and hassle-free compared to getting blood samples. That sounds like a useful tool for police, with new data from Statistics Canada showing more people getting behind the wheel within a few hours of ingesting or smoking cannabis.
But Kyla Lee of Acumen Law in Vancouver warns that the device is also triggered in some cases by other substances in people's oral fluids.
"People are at risk of being wrongfully arrested," she said.
Lee said people tested positive after they drank certain teas, ate commercially made lemon poppy seed cake or used CBD oil, which has none of the main psychoactive ingredient in cannabis.
"Nobody is getting high on poppy-seed cake! So it's obviously a concern," said Lee.
Einat Velichover is a development manager with Dräger with an expertise in alcohol and drug detection.
She said that tests done in Vancouver are misleading because Canadian police do not test for opiates with roadside devices. That's why the Canadian version of the screening device uses software focused on only two substances, cocaine and pot.
She said any tests done on the device would be using the wrong swab or panel, as police officers in Canada are given a special two-option swab because of the restrictions in this country.
She said if a driver tested positive there would be further checks, as is done with breathalyzers, so there would be no risk of unfounded arrests.
"They are trying to scare off business," said Velichover.
Lee said that she used the advice of Jan Semenoff, a former police officer who now works as an expert court witness, to come up with a test for the device.
They tested the unit about 40 times on 20 different subjects and there were several false readings, she said.
One person who had never used cannabis or CBD oil tested positive for cannabis. Other people who had eaten Tim Hortons poppy seed cake 30 minutes before the test also triggered the drug tester.
"That was a result of leftover poppy seeds in their mouth that had not been eliminated from their saliva," said Lee.
Police organizations are wary of the device, as other lawyers had warned it was not foolproof before pot was legalized.
Vancouver police say they are not yet using the device, instead relying on officers trained in Standardized Field Sobriety Tests (SFST) and officers qualified to recognized the effects of drugs.
Abbotsford police have purchased one unit and are testing it.
"We have not seen any data or research to suggest issues with reliability to date," said Const. Deanna Dixon of Abbotsford police.
'Lengthy trial period'
RCMP media relations confirmed that the Dräger device in being used in other parts of Canada, but not B.C.
"The RCMP only uses drug screening equipment approved by the Attorney General of Canada. All approved drug screening equipment devices are rigorously tested and evaluated by the Canadian Society for Forensic Science — Drugs and Driving Committee (CSFS DDC), before being recommended for approval to the Attorney General of Canada," police said in a written statement.
The CSFS DDC is an independent group of forensic toxicologists and other experts from across Canada.
In Nova Scotia, the machine was used in blitzes to catch impaired drivers last December. At that time 22 officers had been trained to administer Dräger tests.
In Manitoba, RCMP spokesperson Sgt, Paul Manaigre said the device is in use, but not relied upon.
Manaigre said that enforcement officers are cautious and use other forms of testing and observation when charging people with impaired driving.
"We are going to focus on a very lengthy trial period to make sure the devices produce the results that we have been told that they are going to produce," he said.
He said they are not even sure if the device can withstand a Winnipeg winter yet.
As for questions about accuracy, Velichover says the device is supposed to be used like a breathalyzer.
It's followed up by other tests and is one of many tools to ensure nobody is falsely accused of anything.
She said any tests done with a version of the screening device outfitted for another country are invalid.
The device is used with great success around the world and has a track record of accurate readings, she said.