DUI – Roadside Testing for Alcohol

As of December 18, 2018, impaired driving laws in Canada radically changed. One of the biggest changes is that police officers are now able to force any driver to provide a roadside breath sample into an Approved Screening Device at any time.

What is an ASD?
An Approved Screening Device (ASD) is a small handheld machine about the size of a cell phone that quickly measures blood alcohol. An officer holds the device and you blow for a short period of time into a straw. After a few seconds, there are three possible outcomes:

• Pass – blood alcohol is between 0-50 mg%, you are free to drive away
• Warn – blood alcohol is between 50-100 mg%. The warn can actually register if you are above the legal limit of 80%. Depending on the officer, you may be free to go or given a 24-hour suspension. However, a warn does not give the officer grounds to arrest.
• Fail – blood alcohol over 100 mg%. This gives the officer reasonable grounds to arrest you for impaired driving and demand you provide a sample of breath into a breathalyzer at the police station.

ASD’s have a significant limitation. If you have consumed alcohol within the last 15 minutes, the device can provide a false fail. You have no obligation to tell an officer if you have consumed alcohol and it is highly recommended you don’t say anything about consumption when pulled over. However, if you blow a Fail, tell the officer immediately if you have consumed alcohol within the last 15 minutes. The officer will then have you wait 15 minutes to provide another sample.

The Old Law
Prior to the new amendments, a police officer was required to have a reasonable suspicion that a driver had alcohol in their body in order to demand a roadside sample of breath on the ASD.

An officer could form reasonable suspicion on very minor indicia such as admission of consumption or alcohol on the breath. Reasonable suspicion did not mean that a person was impaired to operate a motor vehicle, just that they had alcohol in their body.

The New Law
The old law about reasonable suspicion still exists (with changes to the wording) but section 320.27(2) has been added to give an officer nearly unlimited power:

If a peace officer has in his or her possession an approved screening device, the peace officer may, in the course of the lawful exercise of powers under an Act of Parliament or an Act of a provincial legislature or arising at common law, by demand, require the person who is operating a motor vehicle to immediately provide the samples of breath that, in the peace officer’s opinion, are necessary to enable a proper analysis to be made by means of that device and to accompany the peace officer for that purpose.

A police officer no longer needs any indicia of consumption of alcohol such as an admission or smell of alcohol. As long as the officer has an ASD with him/her, a roadside demand can be made simply because you are driving the vehicle. If the officer does not have an ASD in their vehicle, they cannot demand a sample of breath on this basis. However, if they form a reasonable suspicion that you have consumed alcohol, like in the old law with admission or smell of alcohol, they can call another nearby officer to bring an ASD as long as it is in a reasonable period of time.

Can I Refuse?
Of course you can – but you will be charged with a criminal offence with a minimum fine of $2,000. Under the old legislation, the minimum fine was $1,000. Under the new law, that fine has doubled.

Can I Call A Lawyer?
During the roadside testing period, you do not have a right to call a lawyer. The Supreme Court of Canada has determined that during the brief period of time in which a roadside sample of breath is given, police have no obligation to allow access to a lawyer and this is not a violation of a person’s right to counsel. If you refuse to provide a sample of breath until you speak with a lawyer, the officer can charge you with refusing to provide a sample of breath.

Call Cory Wilson
If you have been charged with any alcohol related driving offence, you need an experienced criminal defence lawyer on your side. Cory Wilson has successfully represented countless individuals charged with every alcohol related driving offence. To schedule a free, no obligation consultation, call 403-978-6052 or email us here.