Steinbach man claims positive roadside drug test was false, considering legal action

A Steinbach man is claiming he got a false positive on a roadside drug test when he was pulled over for speeding.

Prospero San Juan was driving his wife, who is 12 weeks pregnant, to the pharmacy to pick up prenatal vitamins on the afternoon of July 20 when he was pulled over by the RCMP on Brandt Street for speeding. San Juan was clocked going 72 kilometres an hour in a 50 km/h zone.

The officer noticed that San Juan’s eyes were closing and appeared to be red. He asked San Juan if he was taking cocaine or cannabis to which San Juan replied that he wasn’t. An oral field drug test was done and found that San Juan tested positive for cannabis having more than 25 ng/ml of THC in his blood, or five times the legal limit.

San Juan admits to speeding down Brandt, but he claims he hasn’t smoked marijuana for more than five years maintaining he doesn’t like the way it makes him feel. He said the closure of his eyes is a mannerism that he has had since childhood and that his eyes were a little bit red because he had just woken up from a nap.

“I was surprised when he came back to me and said I was positive for marijuana. I started questioning what is happening,” he said.

In a video that was recorded by his wife, the officer can be heard telling San Juan he was not going to be charged criminally for driving under the influence, but he would receive a 15-day driving suspension. The video also showed San Juan asking for a blood test but was denied.

The driver has the right to request a second oral fluid test. They do not have the right to a blood test, according to Section 263.1(11) of the Highway Traffic Act.

San Juan decided to get a blood test to verify that he had received a false positive in the roadside test. He went to Bethesda Hospital but was triaged. After waiting until 1 a.m., he and his wife left. The following day, he went to Ste Anne Hospital where he submitted to a urine test. It came back negative.

Draeger, the makers of the Drug Test 5000, said the device has been used by the RCMP since 2018. It takes four minutes to receive a result and according to Einat Velichover, who manages drug and alcohol detection for Draeger in Canada, the device is more than 99 percent accurate.

But according to a Norwegian study that was published in the Journal of Analytical Toxicology, the device was found to have a false positive 14.5 percent of the time for cannabis use.

Dr. Jeff Brubacher, who published a study on impaired driving due to drugs, said blood tests are considered “the gold standard” when it comes to drug testing.

“THC levels in saliva do not correlate well with THC levels in blood,” he said.

Levels in the blood and intoxication are dependent on the frequency of use. Sgt. Mark Hume, unit commander for North West Traffic Services, said a person can be found to be over the limit and not intoxicated depending on if they’re a chronic user or not. Someone who is a chronic user will never clear their system of cannabis with a low threshold of 2 to 3 ng/ml always being present in their blood until their next use. Someone who is a recreational user will see the drug leave their system within four to six hours.

“We’re getting a lot, a lot, a lot of chronic users that are testing positive 18-24 hours after they last used it. It’s no different than an alcoholic who drinks every single day. They’re never getting back to zero,” said Hume.

“It’s not different than different medications you’re not supposed to drive or operate heavy machinery, well cannabis is one of them. If I took T3 every single day I would be too impaired to drive. Just because it’s legal doesn’t mean you can drive after and that’s the message we’re trying to get out to people and that they’re not understanding,” noted Hume.

San Juan received a 15-day suspension and will not face criminal charges. Manitoba Public Insurance has stated that he has up to one year to submit an application for review of the suspension. The cost is $150 and there are three possible outcomes: a reversal of the suspension, a revision of the suspension, and the upholding of the suspension.

San Juan is now considering legal action to clear his name.

San Juan’s message to people is, “If you know that you have not done anything wrong, don’t be afraid to speak up. For you know what is true and God knows what is true.”