Criminal Code of Canada - section 258(5) - Testing of blood for concentration of a drug

section 258(5)

INTRODUCTION AND BRIEF DESCRIPTION

Blood samples taken for alcohol analysis can also be tested for drugs.

SECTION WORDING

258(5) A sample of an accused’s blood taken under subsection 254(3) or section 256 or with the accused’s consent for the purpose of analysis to determine the concentration, if any, of alcohol in the blood may be tested to determine the concentration, if any, of a drug in the blood.

EXPLANATION

Section 258(5) of the Criminal Code of Canada allows for the testing of a sample of an accused's blood for drugs in addition to alcohol. This section relates to impaired driving offenses, where an individual is accused of driving a motor vehicle while under the influence of alcohol or drugs. The Criminal Code of Canada makes it an offense to operate a motor vehicle while impaired by alcohol or drugs. To prove impaired driving, police officers have the power to request that an accused provide a sample of their breath, blood or urine to test for the presence of alcohol and/or drugs. Section 258(5) allows for the testing of a blood sample to detect drugs in addition to alcohol. This provision is important because not all drugs are detectable by breath or urine tests. Blood testing is a more accurate means of detecting the presence of certain drugs in an accused's system. Furthermore, the concentration of drugs in the blood can help establish impairment, which is an essential element of impaired driving offenses. It is worth noting that the ability to test a sample of an accused's blood for drugs is subject to the same conditions as testing for alcohol. Specifically, the blood sample must have been taken in accordance with the procedures outlined in subsection 254(3) or section 256 of the Criminal Code, or with the accused's consent. Overall, section 258(5) of the Criminal Code of Canada expands the scope of testing for impaired driving offenses to include the detection of drugs in addition to alcohol through the use of blood samples. This provision provides law enforcement with a more comprehensive means of determining impairment in impaired driving offenses.

COMMENTARY

Section 258(5) of the Criminal Code of Canada allows for the testing of an accused person's blood sample which has been taken for the purpose of analyzing the concentration of alcohol in their blood, to also be tested for the presence of drugs in their blood. This provision is particularly important in cases where an accused person is suspected of driving under the influence of drugs and alcohol. The primary objective of the Canadian criminal justice system is to ensure public safety. The law recognizes that driving under the influence of drugs or alcohol is a major public safety risk, and so it has created a series of laws and regulations designed to detect, deter, and punish such dangerous behaviours. Section 258(5) is an important provision in this regard. It allows law enforcement officials and prosecutors to more accurately assess the dangers posed by an accused person and to tailor their response accordingly. In order to ensure that this provision is used effectively and fairly, the courts have established certain requirements which must be met before a blood sample can be tested for drugs. Firstly, the accused person must have been properly arrested and detained by the police. Secondly, the police must have had reasonable grounds to believe that the accused person was impaired by drugs or alcohol while driving. Thirdly, the accused person must have consented to the taking of their blood sample or must have been compelled to do so under the authority of a warrant. Finally, the testing of the blood sample must have been conducted in accordance with established scientific methods and principles. Of course, as with any legal provision, there are certain potential drawbacks and limitations associated with section 258(5). One potential issue is the risk of false positives. Blood tests for drugs can be notoriously unreliable, and there have been cases where people have been wrongly convicted based on incorrect or flawed test results. It is therefore crucial that blood samples taken under this provision are properly analyzed by experienced professionals using appropriate and validated methods. Another potential issue is the fact that many drugs can remain in the bloodstream for days or even weeks after use, whereas the effects of the drug may have worn off much sooner. This means that the presence of drugs in a blood sample may not necessarily indicate that the accused was actually impaired at the time of driving. This is particularly true for marijuana, which can remain detectable in the blood for up to a month after use. Courts need to ensure that they consider all the relevant circumstances before relying on the results of a blood test in making a determination of culpability. In conclusion, section 258(5) of the Criminal Code of Canada is a crucial tool in the fight against impaired driving, and it serves to enhance public safety. However, it is essential that this provision is applied with care and caution, and that any potential limitations or drawbacks are taken into account by law enforcement officials, prosecutors, and the courts. By doing so, we can ensure that our criminal justice system remains fair, just, and effective in protecting the public from harm.

STRATEGY

Section 258(5) of the Criminal Code of Canada is a provision that authorizes the testing of a sample of an accused person's blood for the presence of drugs, in addition to alcohol. This provision is relevant in cases where an accused person is charged with impaired driving or other drug-related offenses. Strategic considerations when dealing with this section of the Code include the following: 1. Consent vs. Court Order The first strategic consideration is whether to seek an accused person's consent to the blood test or to obtain a court order for the test. In some cases, an accused person may be willing to consent to the test, which could save time and resources. However, obtaining a court order may be necessary if the accused person refuses to consent, or if there is reason to believe that the accused may tamper with the test results. 2. Timing of the Test The second strategic consideration is the timing of the blood test. The test must be conducted within a reasonable time after the alleged offense, or else the results may be deemed inadmissible. It is therefore important to ensure that the test is conducted as quickly as possible, while also ensuring that the accused person's rights are not violated in the process. 3. Validity of the Test The third strategic consideration is the validity of the blood test. The test must be conducted in accordance with established procedures, using approved equipment and by trained personnel. In addition, the chain of custody of the blood sample must be documented and preserved to ensure that the results are reliable and admissible in court. 4. Expert Testimony The fourth strategic consideration is the use of expert testimony to interpret the test results. The concentration of drugs in the blood can vary depending on a number of factors, such as the type of drug, the mode of administration, and the time elapsed since ingestion. A qualified expert can provide an opinion on the significance of the test results and how they relate to the accused's alleged impairment. 5. Negotiations and Plea Bargaining The final strategic consideration is the use of negotiations and plea bargaining to resolve the case. In some cases, the results of the blood test may be weak or inconclusive, or there may be other weaknesses in the Crown's case. In such cases, a defense lawyer may be able to negotiate with the Crown prosecutor for a plea deal or a reduced sentence. Strategies that could be employed in dealing with Section 258(5) of the Criminal Code of Canada include the following: 1. Preparing the accused person for the test and explaining their rights and obligations. 2. Retaining a qualified expert to review the test results and provide a defense. 3. Conducting a thorough investigation of the circumstances of the alleged offense, including the validity of the traffic stop and any other evidence that may be relevant. 4. Negotiating with the Crown prosecutor for a plea bargain or a reduced sentence, where appropriate. 5. Challenging the validity of the blood test results through cross-examination of the Crown's witnesses, or through other legal means. In conclusion, Section 258(5) of the Criminal Code of Canada is a provision that authorizes the testing of an accused person's blood for the presence of drugs. Strategic considerations when dealing with this provision include obtaining consent or a court order, ensuring the validity of the test, using expert testimony to interpret the results, and negotiating with the Crown prosecutor for a favorable outcome. The successful defense of a case involving Section 258(5) requires a thorough understanding of the law and the strategies available to challenge the Crown's case.