Frequently Asked Questions
What if I was in the Car but did not Intend to Drive?
If the police find an impaired individual in a car, they are legally allowed to assume that the person has committed an offence in certain cases. For example, if someone is in the driver’s seat. This is an example of the assumption that someone in the position of a driver has care or control over the vehicle, which is the necessary action to charge someone with an impaired driving offence. It would then be that person’s responsibility to convince the police that they did not intend to or could not drive the car at that time. This might be accomplished by showing the officer that you do not have the keys, or by demonstrating that the vehicle is completely inoperable.
The police may also charge someone with an impaired driving offence if they have de facto care and control of a vehicle. The case of R. v. Lochead, 2021 ONCJ 432 (CanLII) provides an example of this. In that case the accused had started drinking while waiting for her stuck vehicle to be rescued. The judge found she posed enough of a risk to commit an impaired driving offence if a tow truck had arrived to the scene to help her before police arrived. To deal with cases like this, Canadian law has developed a rule for de facto control where a person can be charged if they are impaired, if they have engaged in activity related to a vehicle and there is a real risk that they pose a danger to others.
Is it Better if I Refuse to Blow?
It will not improve the situation of an accused person if they refuse to provide a breath sample when the police demand one. Section 320.15 of the Criminal Code makes it an offence for someone to refuse to comply with a demand for a breath sample. The penalties for this offence are the same for other impaired driving offences. So, a person refusing to provide a sample is still potentially facing the same fine, term of imprisonment or driving prohibition either way.
It is also important to remember that the police can stop anyone at any time on the road to make a demand and conduct mandatory roadside screening. The only exception that allows a person to refuse a demand to blow is if they are medically incapable of doing so and can provide proof of that claim. Even then, a person would most likely only be able to do that after beginning the trial process because most people do not always carry the necessary documentation with them.
Can the Police Show up at my House and Ask for a Breath Sample?
As mentioned above, the police have the authority to stop anyone on the road at any time to demand a breath sample. This power also applies off the road as well and that allows police to show up to your home in Brampton, or elsewhere, to demand a sample under specific conditions. For the demand to be legally valid and issued at a person’s home, the police must make it within two hours after someone has stopped driving. This will usually require the police to issue a demand while following up on a complaint or witness statement about an accident or erratic driving.
The offence the person would then be charged with would be having a blood alcohol concentration over the limit within two hours after driving. However, this offence requires the accused to have a reasonable expectation that the police may make a demand for a breath sample to them. If a person has no such reasonable expectation of a demand, perhaps because of mistaken identity or the fact that no accident or erratic driving actually happened, they may not be charged. An example of the police going to a private residence to make a demand is the Alberta case of Garang (Re), 2022 ABSRA 892 (CanLII).
What do I do if the Police Come to my House and Demand a Sample?
If the police do arrive at a personal residence, make contact with the resident and make a demand for a breath sample, the person must comply if the demand is made within two hours of them driving. As discussed in the last question, a person will not be found guilty of an offence for having a blood alcohol concentration over the limit if they had no reasonable expectation that they would be required to provide a sample. The medical exception for failing to comply with the demand, described above, also applies in this scenario.
What do I do if I am Pulled Over for Impaired Driving?
If a person is pulled over by the police for impaired driving, they must comply with any demand made of them. The only exception to this rule is for medical incapacity. The police have broad powers to stop anyone to conduct screening for impaired driving. They also have the power to stop drivers to check their license, registration and insurance number under the Highway Traffic Act. The Act clearly states under s. 31 that driving is a privilege enjoyed by all Canadian drivers, including residents of Brampton. It is therefore not a right that every person is entitled to.
Once a person has been pulled over, they should remember that they cannot refuse to comply with police demands by asserting their right to a lawyer. That right, guaranteed under s. 10(b) of the Canadian Charter of Rights and Freedoms, only applies once an individual has been arrested. It cannot be used to prevent or delay someone from providing a breath sample on the roadside.