Toronto DUI Defence Lawyer | Over 80 Lawyer | Drinking and Driving

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TORONTO DRINKING AND DRIVING LAWYER

Charges for driving under the influence (DUI) can range from “impaired driving”, “over 80” or “refusing to provide a breath sample.” As a result of the sophisticated breathalyzers and roadside screening devices used by police, these charges are challenging to defend. With the serious consequences associated with a conviction, hiring experienced and thorough defence counsel is critical to achieve the best results.

The Firm regularly defends law-abiding citizens, without criminal records, who are confronted with allegations of impaired driving. We have provided expert representation, defending institutional traders, financial district employees, local construction union workers, hospital staff, students and many other young professionals faced with Impaired Driving allegations and helped them achieve the best results. Recently, after nearly 3 years of litigation, the Firm secured a full acquittal at trial, in its R. v. F.B. [2016], where the accused was alleged to have operated a Skyjack on a construction site, for which keys were found in the ignition.

In its R. v. R.B. [2013], on November 2, 2013, a car struck a poll on Clonmore Drive and sliced in two. The driver, walked away with minor injuries. At the hospital, the driver’s blood was seized without a warrant and registered close to 200 mgs of alcohol per 100 ml of blood. The Firm secured an acquittal of Over 80 and Dangerous Driving at Trial.

In the Criminal Law Group’s R. v. M.V. [2014], it secured a full withdrawal of Over 80 by high profile Bay Street Investment Banker charged at a RIDE stop. It further secured a withdrawal of Impaired Driving and Over 80 in its R. v. M.Z. [2014], where the driver, a daughter of an OPP officer,  flipped the car in a ditch and had Breathalyzer readings over 160 mgs. In its R. v. B.P. [2014] the Criminal Law Group further secured a withdrawal of Impaired Driving where the driver fell asleep in his vehicle covered in vomit. In its new R. v. K.C. [2015] it secured a withdrawal of Impaired Driving where the female driver had Breathalyzer readings over 260 mgs, and was caught trying to conceal open alcohol in the vehicle at the scene of the accident. In its R. v. V.T. [2013], it secured a withdrawal of Impaired Driving and Refusing to provide a sample where the driver attempted to flee from police and was apprehended on the run. The Criminal Law Group has also defended a number of drivers impaired by drugs. In its new R. v. J.F. [2015], it defended a Toronto Business Consultant charged with Impaired Driving for combining and consuming over the counter pain medication.

In  the twelve months prior to April 2015, it secured three separate Careless Driving resolutions for Impaired Driving allegations in Toronto. The Firm defended a Hollywood Stunt Man charged with impaired driving, where the driver blew over 300 mgs, in its R. v. D.G. [2015].

We have experience critically analyzing breathalyzer readings, including police investigative technique and search warrant protocol. We have extensive technical knowledge of the use, operation and calibration of the latest police breathalyzer technology. Depending on the nature of the breathalyzer readings and time they were conducted, we frequently work with toxicologists and other industry experts in positioning your defence. Drinking and driving charges are complex, we have the tools and skills for your defence.

Frequently Asked Questions

CARE AND CONTROL
What Does ‘Care and Control’ Mean?
How can the Crown Prove Care and Control?
What is a ‘Realistic Risk’ and how does the Crown Prove it?
What if the Accused was in the Driver’s Seat, but not Actually Driving?
What is Care and Control Without Present Danger?
What Evidence of Impairment Can be Used to Secure an Impaired Driving Conviction?
What Types of Testimony Can be Used as Evidence?
What Happens if you Refuse to Comply with an Officer’s Demand for a Roadside Impairment Test?
Is a Breath Test Alone Enough to Prove Impairment?
What if the Police Fail to do a Breath Test?
Can an Accused Use Breath Test Evidence in Their Defence?
Can you be Charged with Impaired Driving if You Are Under the Influence of a Drug?
Are Negative Field Sobriety Test Results Enough to Convict an Accused at Trial?
Can Expert Evidence be Used Against an Accused at Trial?
How does the Crown Prove Impairment by Drugs or Drugs and Alcohol?

OVER 80
What does “Over 80” mean?
Can Evidence Collected During a Roadside Investigation be Used Against an Accused in Court?
What if an Officer Shows up at an Accused’s Residence to Investigate Possible Drinking and Driving?
What do ‘Reasonable Grounds’ and ‘Reasonable Suspicion’ Mean?
How does an Officer Prove Reasonable Suspicion at Trial?
When and How can an Officer Make a Demand for Further Roadside Sobriety Testing?
How Must a Demand for a Roadside Breath (ASD) Test be Articulated to an Accused?
What Happens if the Accused Refuses to Comply with the Officer’s Demand for Sobriety Testing?
What Type of Roadside Testing Can be Done?
What is an Approved Screening Device (ASD)?
How does the Crown Prove the Device was Approved?
What Makes an ASD “Approved”?
What is the “Forthwith Window”?
How and When Must an ASD Device be Administered?
Can Anyone Other than a Police Officer Make a Demand for Breath Testing?
How is Forthwith Altered When the Test is Done at a Police Station?
What do the Results of the ASD Test Indicate?
How Can ASD Test Results be Used at Trial?

REFUSAL
What is “Refusal”?
How does the Crown Prove a Refusal Charge in Court?
Can the Accused Offer to Provide a Different Sample to Show Blood Alcohol Content?
Can an Accused Ever be Required to Provide Samples Other than Blood and Breath?
Can the Accused Change Their Mind After Initially Refusing to Provide a Breath Sample?
Can an Individual be Charged with Refusal Even if They are Unable to Contact and Consult Legal Counsel?
Can an Accused Request an Interpreter at the Roadside?
Is an Officer Required to Give an Accused a “Last Chance” Warning?
Does there Need to be an ASD Available for the Accused to be Charged with Refusal?
Are There are Circumstances Where an Individual Can Legally Refuse an Officer’s ASD Demand Without Being Criminal Convicted of Refusal?
What is a Reasonable Excuse?
Is the Crown Required to Prove that the ASD was Properly Functioning at the Time of Refusal?
Is the Crown Required to Provide Evidence That the Device was Approved?
What is a Valid Demand for a Blood Sample?
When Must a Blood Sample be Taken?

IMPAIRED DRIVING
What is the Difference between Impaired Driving and “Over .80”?
What does the Crown have to Prove for a Conviction of Impaired Driving?
What is an Approved Screening Device (ASD)?
What happens if I register a Fail on the ASD?
What Are the Penalties if a Warm Reading (.05 – 0.8) registers on an ASD?
Can you be Charged with Impaired Driving if you are Operating Machinery or Equipment?
Can you be Charged with Drinking and Driving on an ebike?
Can you still be Charged with Impaired Driving if the Vehicle is Not in Motion?
What is Refusing to Provide a Sample?
Can you be Convicted of both Refusing to Provide a Sample and Impaired Driving?
Are there any Minimum Jail Sentences associated with a Drinking and Driving Conviction?

Impaired Driving Law in Canada

CARE AND CONTROL

What Does ‘Care and Control’ Mean?

 Care and control is comprised of three elements: 1) an intentional course of conduct associated with a motor vehicle; 2) by a person whose ability to drive is impaired, or whose blood alcohol level exceeds the legal limit; 3) in circumstances that create a realistic risk of danger to persons or property. Essentially, this means that the defendants actions in relation to the motor vehicle posed a realistic risk of putting the vehicle in motion and causing harm to a person or property.

How can the Crown Prove Care and Control?

There are three ways in which the Crown can prove care and control beyond a reasonable doubt. Firstly, the Crown can prove the accused was driving the motor vehicle; secondly the Crown can prove that the accused was occupying the driver’s seat of the motor vehicle which triggers a presumption of care and control; and finally, the Crown can prove that the accused had care and control of a motor vehicle in circumstances that posed a risk of danger. In all cases the Crown must prove that the risk posed was realistic, however the risk need not be substantial or even probable to meet the care and control threshold. Simply proving that the risk was theoretically possible will not suffice.

What is a ‘Realistic Risk’ and how does the Crown Prove it?

 If the Crown cannot prove the accused intended to drive, they can alternatively prove a realistic risk of danger existed in three ways: Firstly, an inebriated person who initially does not intend to drive but may change their mind later while still inebriated and proceed to do so; secondly, an inebriated person behind the wheel who may unintendedly set the vehicle in motion; and finally, a stationary or inoperable vehicle which may cause damage to persons or property through the negligence, bad judgement or otherwise of the accused.

What if the Accused was in the Driver’s Seat, but not Actually Driving?

Under section 258(1)(a) of the Criminal Code occupying the driver’s seat of a motor vehicle while legally impaired, regardless of the fact that the vehicle is not in motion, will trigger a presumption of care and control sufficient to achieve an impaired or over .80 conviction. The accused will have the opportunity to rebut this presumption by proving on the balance of probabilities that they occupied the driver’s seat for some reason other than putting the vehicle in motion. Simply lacking the intention to drive however does not automatically rebut the presumption. For example, in R v. Green as accused was found passed out in the driver’s seat with his feet on the ground outside the car’s open door. This position was enough to trigger the presumption of care and control. In R v. Toews however, the presumption was not triggered when the accused was found passed out laying down across the two front seats of the vehicle. Overall the Crown can utilize a wide variety of evidence including the location of the vehicle, the accused’s level of impairment, the attitude of the accused and whether the accused had other means to leave the scene, among other factors that may be relevant.

What is Care and Control Without Present Danger?

 In some cases, the Crown can prove care and control where there is no present risk of danger when the accused is stopped by police. In these cases the Crown will use evidence of recent past driving in the time frame of the accused’s inebriation coupled with the accused’s present and current care and control of the vehicle. This essentially means that the Crown can use evidence to prove that though the accused was not impaired at the time they were stopped by the police, they were impaired while driving prior to being stopped by police.

What Evidence of Impairment Can be Used to Secure an Impaired Driving Conviction?

Physical Observations of Accused

Physical observations made by a police officer of the accused either at the roadside or while the accused is legally detained can be used as evidence to support an impaired driving charge in court. The evidence observed by police must exist independently from any interference, action or statement made by police (for example slurred speech). Officers and the courts have developed a list of possible indicia of the impairment in order to determine if the accused’s physical and mental faculties were impaired such that the accused would not be able to operate a motor vehicle safely. This list includes; evidence of improper of abnormal driving by the accused, presence of bloodshot or watery eyes, presence of a flushed face, odour of alcohol, slurred speech, lack of coordination and inability to perform physical tests (sobriety test), lack of comprehension, issues with fine motor skills, problems with balance and swaying, leaning for support, problems walking, nervousness, fatigue, injuries from a collision, aggressive behaviour, and inappropriate behaviour. These observations can be used individually or together and this list is not exhaustive.

Physical Observations of the Accused’s Driving

In addition to physical observations made by officers of the accused’s person, physical observations of the accused’s driving can also be used as evidence of impairment. Similarly to physical observations of the accused, the courts and police officers have developed a list of physical observations that indicate a driver is impaired. This list includes but is not limited to; speeding, swerving/having trouble staying in the lane/weaving, erratic driving, delayed response to police and/or emergency vehicles, failure to stop at signs/intersections, single vehicle/unexplained accidents, collisions and fleeing/attempting to flee the scene.

Roadside Investigation

In addition to physical observations of the accused made by officers at the scene, evidence collected through legal roadside investigation will also be admissible in court. Any information gathered by the police through questioning the driver can and likely will be used to obtain an impaired driving conviction. In addition, evidence gathered through a roadside sobriety test, evidence of an open container in the vehicle, post driving conduct of the accused and statements/utterances made by the accused may be used to prove the accused’s guilt in court

Video Evidence

Any legally obtained video evidence of the accused taken during and/or after the incident may also be used as evidence against the accused. Several types of video evidence can be admitted into evidence including; police cruiser video, police booking video and police breath test video can all be used against the accused to secure an impaired driving conviction.

What Types of Testimony Can be Used as Evidence?

Various types of testimony may be used by the Crown in an impaired driving case in order to obtain a conviction. A “lay opinion” or a non-expert opinion (often a police officer) may be used as opinion evidence in a trial. A non-expert opinion must meet an objective standard of “an ordinary citizen” or a “reasonable person”. In other words, the evidence offered by the non-expert must be evidence that an ordinary citizen or reasonable person would use to conclude that the accused was driving while impaired. When the non-expert opinion is coming from a police officer it is imperative that the evidence mentioned in the testimony was recorded by the police officer during the initial incident/investigation. If an officer has not made note of some piece evidence against the accused at the time of arrest it may be more difficult to bring this evidence up in court. Where a conviction cannot be obtained on the evidence of an officer alone, additional witnesses who were present may also be called to give testimony. If the testimony of different witnesses is conflicting this can interfere with the Crown’s ability to prove their case beyond a reasonable doubt.  In addition to non-expert opinion, expert testimony (for example the testimony of a toxicologist) can be used as evidence against an accused. Expert testimony must be taken in conjunction with all other evidence presented in determining whether the accused was impaired while driving.

What Happens if you Refuse to Comply with an Officer’s Demand for a Roadside Impairment Test?

In circumstances where the accused refuses to comply with a roadside test, the Crown can use the refusal as evidence against the accused. The court looks adversely upon accused who refuse to comply with a roadside test and take this refusal to indicate that the accused has something to hide. Refusal alone will not be enough to infer guilt in impairment cases unless there are other indications that the accused was impaired (see above for list of possible indicators of impairment that can be used as evidence). An accused can refuse a breath test in certain cases where there is a credible reason for doing so. It is important to note that though a refusal can infer guilt it is not conclusive evidence of guilt on its own.

Is a Breath Test Alone Enough to Prove Impairment?

No. A breath test (or a urine or blood test) can be used to corroborate an officer’s observations that an accused is impaired. However, a breath test alone that indicates that an accused has more than 80 milligrams of alcohol per 100 millilitres of blood is not on its own enough to prove that the accused was impaired. Unless there is an expert opinion to indicate that the accused was in fact impaired, the results of a breath test alone will not be enough to infer a degree of impairment. A roadside test can also be used to infer that the accused consumed alcohol prior to driving where there is a lack of other evidence in that regard. It is important to note that there is a separate criminal charge of driving while “over .80” which can be proven with a breath test.

What if the Police Fail to do a Breath Test?

The only conclusive way for an accused to obtain objective evidence of his innocence after being detained by the police on suspicion of impaired driving is to submit to or request a breath sample be taken. If an officer denies that request the accused is effectively barred from obtaining objective evidence of innocence to bolster their defence. An officer’s refusal to administer a breath test to an accused who has presented a bona fide request for a breath sample to be taken is potentially infringing on the accused s. 7 Charter right to make full answer and defence when charged with an offence.

Can an Accused Use Breath Test Evidence in Their Defence?

Yes. An accused can use a breath test reading indicating less than 80 milligrams of alcohol per 100 milters of blood as evidence of their innocence in court. This evidence alone however, will not be enough to prevent an impaired driving conviction. The accused must also present some other evidence in their defence to prove that they were not impaired at the time they were driving.

Can you be Charged with Impaired Driving if You Are Under the Influence of a Drug?

Yes. The charge of impaired driving includes impairment by either drugs or alcohol or a combination of both. Section 254 of the Criminal Code sets out a three-step procedure for determining whether an accused is impaired by a drug. First, a standard ‘field sobriety test’ will be performed. If the accused fails this step of the process the officer will then conduct a ‘drug recognition expert examination’ (DRE) which will be conducted at the police station. If the DRE test gives the officer reasonable grounds to suspect the accused is in fact impaired the final step of the procedure is to administer a ‘bodily fluid sampling test’ in which urine, saliva or blood will be drawn from the accused and tested for drugs and/or alcohol. Samples of blood may only be obtained by a medical professional.

Step One: Field Sobriety Test

Any peace officer can request an individual perform a field sobriety test if the officer has reasonable grounds to believe the accused is impaired while operating or being in the care and control of a motor vehicle. A Standard Field Sobriety Test (SFST) as prescribed by regulation includes the horizontal gaze nystagmus test (accused is asked to follow the officers finger with only their eyes while standing still with legs together), the walk-and-turn-test (accused is asked to walk a straight line and then turn around and walk back) and finally the one-leg stand test (the accused is asked to stand on one leg). If after the tests are administered the officer has reasonable grounds to believe the accused is impaired they will likely ask the accused to submit to a Drug Recognition Examination (DRE) test.

Step Two: Drug Recognition Examination (DRE)

If an officer has reasonable grounds to believe an accused has operated a motor vehicle within three hours of consuming a drug or alcohol they may request that the accused be evaluated by a Drug Recognition Examination officer (an officer specially certified to carry out such sobriety tests). The DRE test is prescribed by regulation like the SFST and consists of several steps. The first step involves checking the accused’s pulse and pupils and their ability to track an object with their eyes. Next the officer will conduct an eye examination and divided-attention tests which measure the accused’s ability to carry out more than one action simultaneously (for example tilting one’s head while touching one’s nose). The officer may also look for other physical signs of drug use such as visible injection sites. Evidence collected during a DRE test will provide officers with evidence to support reasonable grounds for requesting a bodily fluid sample.

Step Three: Bodily Fluid Sampling

If after the first two steps of the sobriety test the officer has reasonable grounds to believe that the accused is impaired, they may demand a bodily fluid test in which a sample of either blood, urine or saliva will be taken to obtain toxicology results. Only medical practitioners are permitted to collect blood samples from an accused.

Are Negative Field Sobriety Test Results Enough to Convict an Accused at Trial?

The answer to this question is that it depends. An accused may be required to take a field sobriety test at the roadside before they have had the opportunity to consult legal counsel. In that case, the evidence gathered in the test may be used only as an investigative tool to confirm an officers suspicion that the accused is impaired in order to move to step two of the impairment evaluation. If however, the field sobriety test is performed after the accused has had the opportunity to consult legal counsel, the evidence gathered in the field sobriety test can be used as direct evidence of the accused’s impairment at trial.

Can Expert Evidence be Used Against an Accused at Trial?

Yes. The Crown can call a toxicologist to testify in court as to the possible level of impairment of the accused, the possible side effects of various drugs and the side effects of possible combinations of drugs. Expert evidence is often a very important part of a Crown’s case but will not be necessary to obtain a conviction where there is sufficient evidence from other sources such as a confession by the accused or physical observations made by police officers.

How does the Crown Prove Impairment by Drugs or Drugs and Alcohol?

The Crown may have trouble proving the connection between drugs found in an accused’s body and the accused’s impairment in operating a motor vehicle in many cases. Urine samples are particularly troublesome in this respect and often offer little in the way of evidence proving that drugs are what caused the accused’s impairment. An accused may claim their driving ability was impaired due to fatigue or some other explanation and without a blood sample proving otherwise can often be difficult. For many drugs, there is no set limit on what will constitute impairment like there is for alcohol (80 milligrams per 100 milters) and this makes it more difficult for the Crown to obtain a conviction for driving while impaired in cases where impairment is caused by drug consumption. Expert evidence will be much more important in proving the Crown’s case beyond a reasonable doubt in cases of impairment by drugs.

OVER 80

What does “Over 80” mean?

 “Over 80” refers to the crime of operating or being in the care and control of a motor vehicle while having a blood alcohol content of more than 80 milligrams of alcohol per 100 milligrams of blood. Having a blood alcohol level of over 80 does not necessarily indicate that an individual’s ability to operate a motor vehicle is impaired, none the less driving in such a state is illegal in Ontario.

Over 80 Where Bodily Harm or Death Occurs

In addition to proving the standard elements of an over 80 charge, where a death has resulted from an accident, the Crown must prove that the accused’s operation of the motor vehicle was a substantial contributing factor to the accident which caused the death or serious injury of a third party. There is no requirement that the Crown prove that the accused drove negligently or dangerously, only that the accused’s vehicle operation was a significant cause of the accident. This behavior must deviate from what a reasonable and prudent driver would have done in a similar situation.

Can Evidence Collected During a Roadside Investigation be Used Against an Accused in Court?

In most cases the answer is no. Any evidence obtained by police through a roadside investigation before an accused has had the opportunity to consult legal counsel cannot be used against the accused in court. This evidence can however serve as the basis for reasonable grounds which will permit an officer to demand a breath sample be taken from the suspect (which can be used to incriminate the accused). This rule however does not apply to visual observations made by police officers at the roadside. Any observations as to the physical state of the accused (blood shot eyes, odor of alcohol, trouble standing, etc.) made by an officer at the roadside can be used against the accused in court.

What if an Officer Shows up at an Accused’s Residence to Investigate Possible Drinking and Driving?

In cases where the accused has returned home and an officer shows up afterwards to investigate a case of drinking and driving, that officer has the right to step on to the accused’s driveway (with reasonable grounds to suspect a motorist is impaired) to investigate further. If the officer is not asked to leave the property before he can develop reasonable grounds to make an arrest then it is likely that that arrest will not violate any of the accused’s Charter rights.

What do ‘Reasonable Grounds’ and ‘Reasonable Suspicion’ Mean?

An officer must have reasonable grounds to suspect that the accused had alcohol in their body and that they had been in the care and control of a motor vehicle within the past three-hour time period before demanding a breath sample. Generally, officers must have objective facts to confirm their suspicions before they can be said to have reasonable grounds and/or reasonable suspicion. It is important to note that reasonable suspicion refers to the possibility and not the probability of the event in question occurring. The totality of the circumstances must be looked at for the officer to make a decision.

There are multiple observations an officer can make which alone or in conjunction with other factors will be sufficient to support reasonable suspicion.

Odour of Alcohol

The odour of alcohol emanating from a vehicle that has been pulled over for a roadside test will be sufficient to give an officer reasonable suspicion of impairment and therefore the right to request further sobriety testing from the driver. It is not necessary that the odour of alcohol be strong and it is not necessary for the officer to be certain that the odour of alcohol is coming from the driver. Even in cases where the driver of the vehicle denies having consumed any alcohol the odour of alcohol in the vehicle will be sufficient for the officer to request a roadside sobriety test or an Approved Screening Device (ADS) test. In cases where there is the absence of an odour of alcohol in the vehicle but the driver has admitted to consuming alcohol or there are other factors that point to the driver being impaired, the absence of the odour of alcohol alone will not render the officers suspicion invalid.

Accused’s Statements

When a driver has been pulled over for a roadside stop and an officer suspects the individual has consumed alcohol, statements made by the accused after being question by officers about alcohol consumption at the roadside will be permissible as evidence to be used to support the officers suspicion of impairment. The importance of stopping and deterring drunk driving allows for a limitation on the accused’s right to counsel before being questioned by police in these circumstances. Though statements made by the accused before they have consulted an attorney can be used during the investigation and to support officer’s suspicions, this evidence cannot be used directly against the accused in court. If questioned about alcohol consumption during a roadside stop a driver is under no legal obligation to answer. Generally, the time the alcohol was consumed or the amount of alcohol consumed are not relevant factors in the validity of an officer’s suspicion and officers are not required in inquire about such matters. The Courts have held that it would be unrealistic to expect officers to try to determine at the roadside if the quantity of alcohol consumed by the accused in relation to the time it was consumed before driving would render the driver impaired at the time they operated the motor vehicle. To simplify matters mere admission of the consumption of alcohol will trigger a reasonable suspicion of impairment.

Demanding the Driver Blow

A common roadside investigative tool officers use to determine if reasonable suspicion of alcohol intoxication exists is to request that a driver blow into the officer’s face to determine if there is an odour of alcohol on the driver’s breath. If an officer detects the odour of alcohol on a driver’s breath using this investigative method that will be sufficient to trigger a reasonable suspicion.

Open Liquor in the Car

An officer’s observation of an open container of alcohol inside a vehicle that has been stopped for a roadside check coupled with the odour of alcohol will be sufficient to trigger reasonable suspicion in the officer.

Other Indicators

Aside from the list above there are any number of indicators an officer may observe which will trigger a reasonable suspicion of a driver’s intoxication. Addition indicators include but are not limited to: erratic or poor driving, a driver’s admission of alcohol consumption prior to operating a motor vehicle, red, glossy or unfocused eyes, confusion of the driver, slurring of speech. It is important to note that for many of these indicators (red eyes, slurred speech) these indicators alone may not be enough to trigger a reasonable suspicion but these factors in conjunction with others will often be sufficient.

How does an Officer Prove Reasonable Suspicion at Trial?

In order for the evidence collected from the roadside test to be admissible in court, it must have been legally obtained. The only way the evidence can have been legally collected the officer must have had a reasonable suspicion of intoxication to make the demand for the roadside test. This means that during the trial the officer who made the roadside stop must articulate his reasonable suspicion to the court. An officer can achieve reasonable suspicion by using his own personal observations, the observations of witnesses, or both. Generally circumstantial evidence will suffice where the officer has a requisite belief of impairment and a reasonable basis for that belief.

When and How can an Officer Make a Demand for Further Roadside Sobriety Testing?

Once an officer has a reasonable suspicion that an individual has been operating or in the care and control of a motor vehicle within three hours of consuming alcohol, they can make a demand for roadside sobriety testing. This reasonable suspicion can be triggered by any of the factors listed above (this list not exhaustive). An officer must reasonably believe, and have a reasonable basis for that belief, that the accused has consumed alcohol within three hours of operating or being in care and control of a motor vehicle. Timing is also an important factor in determining when an officer can demand a roadside. An officer must demand a breath test from an accused as soon as the officer forms a reasonable suspicion of the driver’s alcohol impairment. The circumstances of each case will be taken into consideration in determining exactly what is meant by “as soon as the officer forms a reasonable suspicion”. Realistic delays such as those attributed to securing the safety of officers and/or the driver before the test is done, or taking time to ready the device will be considered reasonable delays and will not violate the “as soon as” rule.

Once a demand has been made to the driver, the driver must respond forthwith to the demand and the test must be administered immediately. Generally, there should be no delay in the breath test being administered after an accused has agreed, however there are exceptions to this rule.  For example, in R v. Grant a 30-minute delay to have an ASD device brought to the scene was found to be unreasonable. Short delays to investigate further or to attend to other vehicles at the scene of an accident will not be considered unreasonable delays. Short delays will also be reasonable in cases where an officer has reason to believe that the accused has consumed alcohol within the past 15 minutes or has vomited alcohol in the past 15 minutes. In these cases, the officers may delay the testing for a short period of time in order to obtain a more accurate reading.

In addition to when and how a demand for a roadside breath test is made, who makes the demand is also of importance. According to section 254 of the Criminal Code the officer who forms the reasonable suspicion of the accused’s impairment must be the same officer who demands the breath test. After the demand is made there is nothing in the Criminal Code precluding a second officer from administering the breath test even if that officer formed no reasonable suspicion in relation to the actions of the accused.

How Must a Demand for a Roadside Breath (ASD) Test be Articulated to an Accused?

The demand need not be made in any particular language; however it should be made simply and clearly so as to give clear notice of exactly what is being requested from the driver. The request for the roadside test will be sufficient notice to the accused that the officer suspects impaired driving has occurred. The officer also must make it clear that if the demand is refused the accused will be charged with a refusal by default. Further, the officer must clearly explain the procedure being used to test the accused sobriety to enable the accused to understand what is being asked of him. If there are any indicators that the accused does not understand what is being asked of him the officer is required to explain the process again to ensure full comprehension on the part of the accused.

What Happens if the Accused Refuses to Comply with the Officer’s Demand for Sobriety Testing?

As with impaired driving (discussed above) if the driver of a motor vehicle refuses to comply with an officer’s demand for roadside sobriety testing they will be charged with the criminal offence of refusal. In these cases, the Crown must prove that the demand for roadside sobriety testing was clear and unequivocal. In addition, the Crown must prove to the court that the accused refused or intended to refuse to comply with the demand.

What Type of Roadside Testing Can be Done?

Section 254 of the Criminal Code allows a police officer to demand either a Standard Field Sobriety Test (SFST) or an approved screening devise (ASD) test. A Standard Field Sobriety Test is generally used to detect drug impairment but can be used to detect alcohol intoxication as well. This test requires the driver of the vehicle to perform physical tasks at the roadside (the process is explained in detail above under ‘Can you be charged with impaired driving if you’re under the influence of a drug? – Step One: Field Sobriety Test’). An approved screening device test is a portable measuring device which allows police officers to measure a driver’s blood alcohol level at the roadside by having the driver blow into the device.

What is an Approved Screening Device (ASD)?

ASD stands for Approved Screening Device. An Approved Screening Device is used at the roadside to test the alcohol content in an individual’s blood. The accused will be required to provide a breath sample into the device and the device will indicate whether the accused has “passed” or “failed” the test. The ASD device will not tell the officer at the roadside exactly what the accused blood alcohol level is, it will only indicate whether the accused has surpassed the legal limit. Once it has been determined at the roadside that the accused has failed an ASD breath test they will generally be transported to a police station at which point they will be asked to provide another breath sample. The second breath sample at the police station is collected by the more technologically advanced breathalyser device which will indicate exactly what the accused blood alcohol content is.

How does the Crown Prove the Device was Approved?

During a trial for impaired driving the Crown will be required to show the court that the officer reasonably believed the device he was using to administer the roadside breath test was an approved device. In most cases the officer’s notes and testimony as to the reasonable belief he held will be sufficient. Only in situations where there is clear evidence to the contrary will the officer’s testimony not be taken as truth. It is important to note here that the Crown does not actually have to prove that the device was an approved screening device, rather they must prove that the officer reasonably believed the device was an approved device. Even in cases where the officer cannot recite or incorrectly recites the model number or other identifying features of the device, the officer’s testimony will be taken as truth barring any contrary evidence.

What Makes an ASD “Approved”?

 The Attorney General of Canada is responsible for giving approval to devices, however approval is not given on an individual basis. Rather, the general type of instrument has been approved. Many different manufacturers and models may be considered approved for the purposes of roadside breath testing. Small adjustments in the mechanical makeup of the device are not necessarily important and do not necessary render the device “unapproved”. For ASD results to be used in court to convict an individual on impaired driving charges, the ASD must in fact be a device of the type approved by the Attorney General. This means that the device must be in proper working condition, correctly calibrated and properly maintained and available to accept a breath test at the time the officer makes the demand at the roadside. In addition, the ASD must be properly administered by the officer to ensure the results provided by the device are as accurate as possible.

Proper Working Order

For an ASD reading to be admissible in court it must have been collected from a device that was in proper working order at the time the breath sample was taken. The officer must have had an objective belief that the device was in good working order. The Crown will not be required in court to prove that the device was in fact in good working order in cases where the test was administered and provided a “fail” result and where the officer can testify an objective belief that the device was functioning correctly.

If however, the accused has attempted to provide the breath sample and the attempt was unsuccessful either because the device was not functioning correctly or because the accused was unable or unwilling to provide a proper sample, the Crown will be required to prove that the device was correctly functioning at the time the unsuccessful attempt was made.

Calibration and Maintenance of the ASD

Regular calibration and maintenance of approved screening devices is necessary to keep the devices in good working order. Failure to do so can result in incorrect and inaccurate testing results which would of course not be admissible in court. There is a general assumption by the courts that if an ASD has been statutorily approved it can be presumed to be functioning correctly unless there is clear evidence to indicate otherwise. As such, the Crown will not be required to prove to the court that the device was properly calibrated and properly functioning at the time the breath sample was taken. The Crown must only prove that the officer who administered the breath test objectively believed that the device was correctly functioning. Even where it has been proven that the officer was incorrect in his assumption, his testimony that he objectively believed that device was in good working order will not be negated. In almost all cases the honesty of the officer will be presumed unless there is obvious evidence to indicate that the officer knew the device was malfunctioning. The Crown need not prove that the officer even knew when the device had last been calibrated so long as there is no evidence to show that the device was malfunctioning. Even where it can be proven that the device had not been calibrated as often as it should have been, the results will be presumed accurate barring any evidence to the contrary.

Availability of Device at the Roadside

As outlined in s. 254(2) of the Criminal Code, once an officer has made a demand for a roadside breath test and the accused has agreed, the test must be administered “forthwith” or right away. This means that if an officer has made a demand the driver of the vehicle has consented to the demand, there must be a ASD available on site immediately for the sample collected to be admissible in court. The Crown may choose not to prosecute cases where the breath test was not administered forthwith after the demand was made.

Refusal

In cases where the driver of the vehicle outright refuses to submit a breath sample, the Crown will not be required to prove that there was an ASD on site at the road side available and in good working order ready to collect the sample. In these cases, it would not be necessary for the Crown to prove that the officer explained the breath test sampling process to the accused or presented the ASD to the accused.

What is the “Forthwith Window”?

An important factor in determining whether or not a roadside breath test will be considered legal, is the time frame in which the breath test was administered. The Criminal Code (s. 254(2)) requires that once an officer has developed a reasonable suspicion of a driver’s alcohol impairment, a breath sample must be provided forthwith. The window between when the officer develops reasonable suspicion and when the breath sample is given is called the “forthwith window”. It is imperative that a breath sample be taken from the accused (assuming the accused agrees of course) as quickly as possible. Though not explicitly stated in the Criminal Code, it is implied that an officer must make a clear demand for a ASD breath sample as soon as he or she develops a reasonable suspicion of impairment.

When determining if a ASD breath sample was taken forthwith the courts must consider five factors:

  • It was the intention of Parliament when creating this section of the Criminal Code to strike a balance between an accused’s Charter right to access to counsel without delay and the public interest is eliminating drunk driving. As such, all forthwith analysis must be done contextually. This means that the court must take into consideration the specific facts of the case when determining whether the breath test was done forthwith.
  • The officer must make a clear demand for a breath sample at the roadside as soon as they have formed a reasonable suspicion of impairment. This is the point at which the “forthwith window” would begin.
  • The Criminal Code’s requirement that a roadside breath test be taken forthwith implies that an officer must make a demand for a breath test immediately upon forming a reasonable suspicion of impairment. As such, the Code also implies that the accused must respond to the demand immediately by either complying with the demand and taking the test or by refusing to do so. The time between the demand from the officer and the response from the accused must be no longer than reasonably necessary, considering the individual facts of the case.
  • When determining whether the ASD test was administered forthwith the courts must factor in all relevant circumstances surrounding the case. There are situations where a delay in the administration of the test may be justified and allowable. For example, if there is no ASD readily available on scene a delay may be justified. Additionally, a delay may be considered reasonable where it is necessary to ensure accurate test results of the ASD or where a short delay is necessary to secure the safety of both the accused and the officer on the scene.
  • The final factor that must be considered by the courts when determining whether a ASD test was administered forthwith is whether the officer had a realistic opportunity to allow the accused to consult counsel before the ASD demand was made but failed to do so. In these cases, the court will generally rule that the forthwith requirement has not been met. If the accused is not being detained during the forthwith window the courts will generally be more tolerant of delay. The court acknowledges the “operation delay” time that will be inherent in every case. This operational delay time will include having the device delivered to the scene, setting up the device for use and explaining the process to the accused. These delays will generally not be counted against the officer in the forthwith window analysis. The important factor the courts are trying to determine in the forthwith window analysis is if, given the delay that existed, the accused would have reasonably had time to contact legal counsel and obtain advice on how to proceed.

It is important to remember that each analysis will differ depending on the particular facts of the case. For example, in some cases courts found a delay of 6-7 minutes to be unreasonable. In several other cases however, delays were not found to be unreasonable until around the 30-minute delay mark. Generally, in cases where there was no ASD device on the scene and the officer knew there would be a delay in getting it delivered the accused must be able to consult legal counsel. Where there was a realistic opportunity for the accused to consult counsel before a ASD demand is made, and the officer failed to provide the accused with such an opportunity the court will generally hold that the accused’s Charter rights have been violated. If a demand is made outside of the statutory requirements set out in the Criminal Code the accused will not be required to comply with the demand.

Delay – Waiting for Delivery of Device

As mentioned above, the forthwith requirement is not automatically violated if the officer does not have the ASD in his or her police cruiser. In most cases, once the officer has developed a reasonable suspicion of a driver’s impairment, notified dispatch of the need for an ASD, and confirmed that a device is on its way, the forthwith requirement will be met. In most cases the officer is not required to inquire about the estimated time of arrival of the device. Simply being notified that it is on route will generally suffice. That being said, in cases where the delay of the devices delivery was upwards of 30 minutes, the forthwith requirement cannot be said to have been met.

Delay due to Mouth Alcohol

Generally, where the officer has reason to believe that the accused has consumed alcohol within the past 15 minutes they will be permitted to wait a period of time before making a ASD demand. It takes a small amount of time for alcohol to enter the blood stream once it has been consumed. As such, a delay between consumption of alcohol and the administration of a breath test is necessary to ensure accurate test results. This rule is only applicable where the officer had reason to believe the accused had consumed alcohol within the last 15 minutes.

In cases where the officer saw the accused leaving a bar or establishment that serves alcohol, the officer will not be required to wait before making an ASD demand, unless there were facts known to the officer indicating that alcohol had been consumed within the last 15 minutes. The possibility that the accused has consumed alcohol within the last 15 minutes will not be enough to satisfy the rule. Additionally, officers are not required to inquire as to when alcohol was last consumed by the accused before demanding an ASD test. Officers have a significant amount of discretion as to when they feel the most accurate test result will be provided. Officers will make determinations on whether they feel the test results will be accurate at any given time on a case-by-case basis.

It is also important to note that an officer cannot simply say there was reason to suspect mouth alcohol. They must present evidence to demonstrate how they came to that conclusion. Waiting 15 minutes to administer the ASD test without clear evidence to show that the officer had reason to believe there was mouth alcohol present will not be considered “forthwith”.

Smoking and Chewing Gum

As with mouth alcohol, officers are entitled to wait a 15-minute period when an accused has been smoking or chewing gum immediately prior to the officer developing reasonable suspicion of impairment. This is to ensure that any smoke residue, sugars or chemicals left in the accused’s mouth from the cigarette have dissipated before the test is administered. Officers are given a significant amount of discretion and may wait the 15-minute period if they reasonably believe something that the accused has done recently (smoked a cigarette or chewed gum) will skew the test results or give a false or incorrect reading.

Identifying the Suspect

A delay in the demand for an ASD test will not negate the forthwith requirement if the delay is due to the officer investigating the identity of the accused prior to making the demand. Where the delay is due to the officer running a background check or checking identification or license plate tags on a car, the delay will be considered reasonable.

Other Circumstances

There will be greater flexibility in the forthwith requirement where the accused is not being detained during the delay. As stated above, the determination of whether or not the forthwith requirement has been breached will be made on a case-by-case basis, taking into consideration the facts and circumstances surrounding the case. For example, where there was a significant delay in an ASD demand at the scene of a fatal car crash, the forthwith requirement was not breached. It is reasonable and acceptable for an officer to attend to other individuals on the scene of an accident or to ensure the safety of all individuals at the scene of an accident prior to making an ASD demand. Additionally, where the accused must be evaluated by paramedics prior to an ASD demand being made, the forthwith requirement will not be breached. It is imperative that all individuals at the scene of a roadside stop are safe and out of danger before a ASD demand can be made and administered.

It is important to note that there is no exhaustive list of delays that are reasonable and will not breach the forthwith requirement. That being said, any and all delays MUST be reasonable and necessary and even the shortest delay for no real reason will breach the forthwith requirement.

Ability to Call and Consult Counsel

For a test to have been taken forthwith and not violate the individuals constitutional right to consult counsel, there must have been no reasonable time for the accused to contact and consult counsel prior to the ASD demand being made. The fact that the accused had a cell phone, the officer had a cell phone or there was a public telephone available nearby will not breach the forthwith requirement. If the ASD is at the scene and available to be administered immediately, the fact that a phone was present or nearby will not affect the forthwith requirement.

In cases where there is no ASD device at the scene and there is a delay of between 15-20 minutes or more the officer must do everything reasonably possible to ensure the accused has the right to contact and consult counsel. For example, in a case where there was a 16-minute delay in the ASD being delivered to the roadside, and the accused had a cell phone in the vehicle and testified he would have used it to contact counsel had he been permitted, the accused’s constitutional right will have been breached. However, where there is a phone available at the scene but an ASD is also readily available, the officer will not be required to allow the accused to consult counsel before demanding and administering the ASD test.

How and When Must an ASD Device be Administered?

An ASD test will be administered at the roadside and must be demanded as soon as the officer reasonably suspects the accused is impaired. The location that the test is taken at the roadside is generally not important. The officer may administer the test to the accused in the accused’s car or move the accused to the officer’s car for the test to be administered. Transferring the accused from their own vehicle to the police cruiser prior to the test being administered will still be considered forthwith. The ASD test can be administered at any time, as long as the forthwith requirement is met (as outlined in sections above).

Can Anyone Other than a Police Officer Make a Demand for Breath Testing?

Yes. Generally, officers will only administer breath tests at the roadside. In most cases the police officer will make the initial demand at the roadside and if accepted by the accused will administer the ASD test. If the ASD testing provides a “fail” result then the accused will likely be placed under arrest and transported back to a police station for further breathalyser testing. This further testing must be conducted by a registered technician. At this time, the breathalyser technician will be required to make another demand for a breath sample. It is not necessary that the arresting officer explain to the technician his or her reasonable grounds for believing the accused was impaired. The technician is not required to form any reasonable grounds himself before making the demand for the breath sample.

How is Forthwith Altered When the Test is Done at a Police Station?

In cases where the accused must be transported to a local police station for the test to be administered, the forthwith requirement will be altered. Where the accused is transported to a station that is very close to the roadside stop location (generally under 5 minutes) and the test is administered immediately the forthwith requirement will generally be met. When accused is transported to a police station that is further away in distance from the roadside stop location, there may be a heightened requirement to provide them with the opportunity to contact and consult counsel. The forthwith analysis becomes slightly more complicated in these types of cases as the analysis does not rely simply on the number of minutes between the demand and the arrival at the station, rather all facts and circumstances surrounding the case will be analyzed to determine if the forthwith requirement has been met.

What do the Results of the ASD Test Indicate?

Once an ASD test has been administered the device will indicate either a “pass” or “fail” reading. This refers to whether the accused has provided a breath sample that is over or under the legal limit (0.80 mg / 100 ml of blood). Generally, ASD’s are calibrated to read “fail” at 100 mg of alcohol per 100 ml of blood. This is to ensure that the individual is in fact over the 0.80 mg legal limit and that no false positives are given. An ASD test will not indicate the precise quantity of blood in the accused’s system, it simply indicates whether the accused’s blood alcohol level is over or under the legal limit. This evidence along with other evidence collected and observed by the officer will combine to trigger the officer’s necessary reasonable and probable grounds to demand the accused submit to a breathalyzer test.

A breathalyzer test will generally be administered at a police station once an accused has failed an ASD test or other roadside sobriety testing. The breathalyzer test is more technologically advanced and will indicate the exact quantity of alcohol in the accused’s blood. In most cases a roadside “fail” result on an ASD test will be enough on its own to allow the police officer to legally demand a breathalyser test. The results of a breathalyzer test are often among the Crown’s most important evidence at trial.

How Can ASD Test Results be Used at Trial?

 A “fail” reading on a ASD test cannot be used at trial to prove that the accused was driving with over 0.80 mg of alcohol per 100 ml of blood. Rather, the results of the ASD will be used to help the officer form the reasonable suspicion necessary to demand further breathalyser testing. At trial, only the breathalyser testing results can be used to prove the accused was impaired while operating a motor vehicle. Additionally, the ASD results cannot be used by the Crown to rebut evidence presented by the defence. It will be at the discretion of the trial judge to decide whether or not the ASD testing results can be used by the defence team to rebut evidence presented by the Crown.

REFUSAL

What is “Refusal”?

Refusal refers to a circumstance where an officer has made a demand for roadside ASD testing and the accused refuses to comply. Section 254(5) of the Criminal Code outlines the offence of refusing to comply with an ASD demand:

254(5) Failure or refusal to comply with demand

Everyone commits an offence who, without reasonable excuse, fails or refuses to comply with a demand made under this section.

Refusal, like being charged with impaired driving or over 0.80, is a criminal offence which generally comes with a maximum penalty of six months’ imprisonment, a $5000 fine or both. There is no significant difference between being charged with impaired driving and being charged with refusal. Generally, the consequences and implications are quite similar.

How does the Crown Prove a Refusal Charge in Court?

For the Crown to prove a s.254(5) refusal charge in court they must prove that the accused had been in the care and control of a vehicle within the three hours prior to the demand being made for the ASD test. The officer would need to demonstrate both reasonable grounds to believe that the accused had been operating or in the care and control of a motor vehicle within the last three hours and that the accused had alcohol in their system at the time of the operation or care and control of the vehicle. Additionally, The Crown must prove that a proper demand for a breath test was made by a police officer, that the accused unequivocally refused that request and that the accused was aware that they were refusing the test and had the intention of doing so. An officer is not required to inform the accused of the possible consequences of refusing the request but commonly do.  Courts will assess the evidence on a case-by-case basis to determine whether the accused made an honest attempt to comply with the demand or if the accused simply refused to comply. In cases where the accused attempted to blow into the device but was unable to, more evidence may be required to make a determination.

As with most criminal cases, anything the accused says to the officer at the time of the demand and after the demand has been made can be used against the accused in court to determine if they had refused. For example, in R v. Bijelic the accused stated, “I don’t care, charge me!” when asked to submit to a roadside breath test. That statement along with other evidence was used in court to show that the accused had unequivocally refused the officers demand. Generally, all circumstances surrounding the interaction between the accused and the officer will be analyzed to determine if a refusal occurred. Though courts have not compiled an exhaustive list of possible factors to consider, some factors that have been used include:

  • Whether the officer properly explained the roadside breath test procedure to the accused
  • Medical, language or other issues that may have impaired the accused’s ability to understand the officer’s instructions
  • Evidence that the accused attempted to or did not attempt to provide a sample
  • The length of time over which the testing occurred
  • The number of attempts there was to obtain an accurate reading
  • Whether the accused was notified that refusing to comply with a roadside breath test is a criminal offence and that the accused will be charged with that offence should they refuse
  • Whether the accused was given more than one opportunity to provide a sample and if so how many opportunities were given
  • Whether the refusal by the accused was unequivocal
    • Here it is important to note that the officer must record in his or her notes the exact words used by the accused to communicate their refusal. In cases where the officer has not recorded the exact wording and there is room for interpretation there is a higher chance the charge will be dismissed

Can the Accused Offer to Provide a Different Sample to Show Blood Alcohol Content?

No. Once a demand for a breath sample has been made by an officer the accused is obliged to respond. This will mean either complying with the demand and providing the sample, or refusing the demand. An offer to submit to a blood test or other form of testing under the belief that it will be more accurate will not be accepted by the courts as reasonable. Statements made by the accused requesting another form of blood alcohol testing can and generally will be used against the accused to prove a refusal charge.

Can an Accused Ever be Required to Provide Samples Other than Blood and Breath?

No. The only samples that can be used to prove an individual has been driving while impaired is a blood or breath sample. Officers are not permitted to request urine or any other sample of bodily fluids from an accused. Any such evidence that was collected would thus be inadmissible in court.

Can the Accused Change Their Mind After Initially Refusing to Provide a Breath Sample?

The accused can change their mind after an initial refusal only when the refusal and subsequent willingness can be considered part of the same interaction. Generally, in these cases the refusal cannot be considered irrevocable and thus the offence of refusal will not have been completed. Ultimately the court will decide on a case to case basis whether a refusal followed by an offer to blow into the testing machine is considered a refusal under the Criminal Code. The totality of the situation will be taken into consideration including the amount of time elapsed between the refusal and the subsequent willingness and the presence of a working ASD at the site of the roadside stop. The Courts have acknowledged that individuals are often reluctant to provide incriminating evidence to the police and that often requests to do so will be met with a negative initial response. This negative initial response will generally not be used against the accused in court as long as it is followed up with an offer to comply within a reasonable time.

As a general rule, the courts have held that the accused is not permitted to dictate the time, place or fashion in which the test is administered. Officers are not required to wait at the roadside for an accused to comply. For example, in R v. McIntryre, the accused was offered seventeen different opportunities to comply with the officer’s demand for a breath test. Upon the final request the officer advised the accused that they were being charged with refusal. The accused subsequently requested to provide a breath sample and that request was refused by the officer. The court held that the accused had ample opportunity to comply with the demand and found the accused guilty of refusal to comply. In R v. Butt an accused refused multiple demands for a breath sample. Upon the device being powered down the accused requested to blow into the ASD and the officer refused, charging him with refusal. The court found that there was sufficient time between the initial refusal and the accused’s request to blow into the device, so as to make them two different interactions. The accused was found guilty of refusal.

Can an Individual be Charged with Refusal Even if They are Unable to Contact and Consult Legal Counsel?

Yes. Assuming there was not sufficient time for the officer to have reasonably allowed the accused to contact and consult counsel, the accused can still be charged with criminal refusal. In R v. Nanji the accused mistakenly believed that the officer was violating his Charter rights by failing to allow him to contact legal counsel and as a result refused to comply with the officer’s ASD demand. The court found that the officer’s demand and ability to administer the test was forthwith and thus a lawful demand. As such, the court ruled that the defendant’s rights had not been violated and that the accused’s mistaken belief that the officer was acting outside his or her legal rights was irrelevant. Mistaken assumptions made by accused will not be sufficient to defend a criminal refusal charge. In cases where the accused has initially refused the officer’s demand but then agreed within a relatively short period of time will generally be permitted to take the test and avoid being charged with refusal. The officer is not obliged to allow the accused to take the sample at a later time if the accused requests it.

Can an Accused Request an Interpreter at the Roadside?

In some cases, the individual who has been pulled over will not speak fluent English and may therefore have a difficult time understanding the requests being made by the officer. In such situations when an interpreter has been requested at the roadside by the accused, the Court has held that the officer must make a reasonable effort to determine whether the accused’s language skills are sufficient to fully understand what is being asked of him. For example, in R v. Burko the accused was stopped and asked to provide a breath sample. The accused requested a Russian translator stating that he did not understand the officer’s instructions. The officer ignored the request and continued giving instructions in English. The Court held that the officer was required to take reasonable steps to ensure the accused understood and raised questions as to whether the accused honestly understood what was being asked of him.

Is an Officer Required to Give an Accused a “Last Chance” Warning?

No. The Courts have held that officers are under no obligation to provide an accused with a “last chance” warning before charging them with refusal. Once the officer has made a lawful demand for a breath sample and the accused has unequivocally refused it, the officer can lay the charge of refusal. Officers are not obliged to tell individuals the legal consequences of refusing to comply with the demand.

Does there Need to be an ASD Available for the Accused to be Charged with Refusal?

No. There is no requirement that the Crown prove that the officer could have reasonably followed through with their demand had the accused complied. The police are not obliged to prove that they had a screening device at the roadside or that they could have had a device delivered to the roadside within the forthwith window when dealing with a refusal case. As such, the Crown is also not required to prove that the officer presented the device to the accused prior to or after refusal or that the officer adequately explained the testing process. The Crown is not required to prove that the device (had one been present) was ready and able to accept samples, that it had been regularly maintained, or even that the device was an approved device.

However, in cases where the accused has been charged with refusal after unsuccessful attempts to provide a sample, the Crown will be required to prove that the device was an approved device and that it had been properly maintained and administered to the accused. Failure to do so will likely seriously jeopardize the Crown’s case. It is important in cases where the device has registered an error message that the officer correctly record the error message. Misstating the error message that the device showed can call the officer’s testimony into question and raise reasonable doubt as to the accused’s guilt. Where there were multiple unsuccessful attempts to provide a sample and the Crown cannot prove that the device was in good working order and had been properly maintained and tested and the officer’s testimony is that the accused was willfully avoiding providing a complete breath sample, the officer’s testimony will be scrutinized more harshly. When the Crown can prove that the device was in good working order however, the accused will have a difficult time overcoming the refusal charge.

Are There are Circumstances Where an Individual Can Legally Refuse an Officer’s ASD Demand Without Being Criminal Convicted of Refusal?

Yes. In cases where the officer’s demand is not lawful under section 254 of the Criminal Code the accused is under no legal obligation to comply. Only where the officer has correctly made a section 254 demand can the accused’s Charter rights be overridden. There may also be cases where the accused has a reasonable excuse for not complying with the officer’s demand. For example, if the accused had some medically valid reason not to comply. In these situations, it is likely the accused will still be charged with refusal as it can be difficult for officers to ascertain the truth in many situations. Individuals who have been criminally charged with refusal but feel as though they have a reasonable excuse for doing so are urged to contact experienced legal counsel to determine the next steps in the case. Should the accused in fact have a reasonable excuse for failing to comply with an officer’s demand, they will be required to present evidence to the court proving so.

What is a Reasonable Excuse?

The only time an accused can refuse to comply with an officer’s demand for a roadside breath sample is when there is a reasonable excuse for such refusal. It is only in rare cases that the Court will find that a reasonable excuse existed to negate an accused’s obligation to comply with the officer’s demand. Reasonable excuse refers to some extraneous factor in the case that excuses the actions of the accused which would otherwise be considered unlawful. When an accused relies on the defence of reasonable excuse, they are essentially admitting to committing the offense but arguing that the act was justified under the circumstances. When a reasonable excuse exists, the accused will not be held liable for their actions.

Burden of Proof

Generally, Courts have held that the burden of proof lies on the defense to show the existence of a reasonable excuse. Even when the Crown has proven the essential elements of the offence, the defense may raise reasonable excuse as a rebuttal to the Crown’s case. The judge must be content that there is an air of reality to the reasonable excuse defence before they will consider it. Ultimately however, the burden lays with the Crown to prove beyond a reasonable doubt that the accused committed the charged offence and did so without any reasonable excuse.

Substantial Risk to Life or Health

In cases where there was a substantial risk to the life or health of the accused should they immediately comply with the officer’s request for a breath sample, the subsequent refusal will be justified as a reasonable excuse. This will include situations where there has been a car accident and the accused has a reasonable belief that they are still in danger should they provide the sample in the current location. In these cases, it may be reasonable for the accused to request to go to a safer location to submit to the test. Additionally, cases where the accused has some sort of genuine medical reason for refusing the breath sample will be considered reasonable.

Accused Not Driving the Vehicle

In cases where the accused refused to comply with a demand for a breath sample because they stated they had not been in care and control of the vehicle while intoxicated, the Courts have found that this is not a valid reasonable excuse. An accused will be required to comply with an officer’s demand regardless of whether they were actually seen operating or being in care and control of the vehicle. It is important to note here however that the officer will be required to prove in court that they had a reasonable suspicion to believe that the accused had alcohol in his/her body and also that the accused had operated or been in the care and control of a vehicle within the past three hours.

Accused Not Impaired

According to R v. Taraschuk, it is not considered a reasonable excuse that the accused was not impaired when they have been charged with refusal but were subsequently acquitted of impaired driving. When a lawful request for a breath sample is made by an officer, the accused is obligated to comply regardless of whether or not they are actually impaired. After all, a refusal charge is not necessarily alleging the accused was in fact impaired, rather it is alleging that the accused refused to comply with the officer’s demand for a breath sample when the officer reasonably believed them to be impaired.

Concern About the Device/Instrument

In cases where the accused refuses to comply with a demand for a breath test due to concerns they may hold about the device being used will generally not be considered a reasonable excuse for failing to comply. In R v. Davidson, the accused refused to comply with the officer’s demand for a breath test citing that fact that he did not believe the officer had handled the device in a hygienic manner. The Court held that this was not a reasonable excuse for failure to comply. Courts have held that an accused cannot argue reasonable excuse by stating that they did not believe the machine was working correctly or that the machine was not rendering accurate results. In these scenarios, the test      should be administered and the defence team can challenge the results in court. Additionally, Courts have held that where the accused has not been provided the opportunity to witness the full preparation of the device a reasonable excuse will not exist.

Conduct of the Police

Courts have held that generally an accused’s distrust of the police officer administering the test will not be sufficient to show that a reasonable excuse existed for failure to comply with the breath test. Police are not required to persuade or negotiate with the accused in any way when making the demand. Similarly, police as well as breath technicians are not required to prove their qualification to administer the test before doing so. Unless the conduct of the officer is so egregious as to be considered unlawful conduct, abuses by the police falling short of a Charter violation will not be considered a reasonable excuse for refusing to comply with a breath test demand.

For example, in R v. Drda an officer placed an accused in a choke hold at the roadside after the accused tried to leave the scene. The accused was rendered unconscious and subsequently refused to cooperate with demands for a breath test citing the fact that he was unable to blow due to the assault he had just endured. The Court held that the police should not be surprised in these situations that the citizen did not want to comply after being treated in such a manner. The Court held that the excuse raised reasonable doubt as to whether the accused was physically able to comply with the demand and thus could not be convicted. In cases where the accused experienced mistreatment by the police the Courts have found that a reasonable excuse existed.

Economic Loss

In virtually all cases the excuse of economic loss will not be sufficient to be considered a reasonable excuse. In R v. Gidney the accused crashed a truck carrying frozen fish into a ditch spilling the fish all over the road. The officer on the scene requested a breath sample which was subsequently refused on the grounds that the accused had to clean up the roughly $8,000.00 of fish before it thawed and was no longer edible. The Court found that it was never the intention of the legislature to include this type of excuse and thus it was not reasonable.

Emotional State

Where an accused can show that they in fact could not comply with the demand due to some sort of emotional distress the Courts will often hold that a reasonable excuse for failure to comply exists. For example, in R v. Schwartz the accused argued that she was having an anxiety attack causing her to hyperventilate and could therefore not blow into the machine. The Court held that this was a reasonable excuse for failure to comply with the demand. When an accused is so emotionally distressed that they cannot comply with the demand because they are unable to blow or because they are unable to follow the instructions being given to them, a reasonable excuse will exist.

Failure to Mention

When determining whether the refusal was in fact a reasonable excuse the Court will look at whether the accused actually raised the objection to the officer at the time the demand was made. Where the accused failed to mention their excuse at the time they refused the demand no reasonable excuse can be found. A detailed explanation is not required but the accused needs to at least mention the issue at the time of refusal.

Interventions by a Third Party

Where a third party (not legal counsel) has advised the accused to refuse demands to take the test, the accused cannot plead reasonable excuse. The Court assumes that all adult individuals are responsible for their own actions and decisions and thus in almost all cases the intervention of the third party as an excuse for failing to comply with a demand for a breath test will not be recognized by the courts.

Language Issues

Where it is found that an accused did not understand the demands and/or instructions of the office making the demand due to the accused’s lack of fluency in English, a reasonable excuse will exist. An individual must be able to understand what is being asked of them in order for them to comply. Where an officer proceeds to administer a breath test or where an accused refuses and no translator was provided, the conviction generally cannot stand. An officer’s subjective belief that the accused does understand the commands being given to him will not be sufficient to impeach the accused’s credibility where no objective evidence corroborating that belief exists.

Legal Advice

An accused is required to provide a breath sample forthwith when a lawful demand is made by an officer. The accused cannot plead reasonable excuse for refusing to do so either because the accused’s lawyer advised against it or because the accused was not given the opportunity to contact legal counsel prior to submitting to the test. Refusing to submit to testing for either of these reasons will not allow the accused to avoid conviction.

Medical Condition

In some cases, an accused can legally refuse to comply with a demand for a breath sample where they can show that they were suffering from a genuine medical condition that prohibited them from doing so. For example, where an accused was suffering from broken ribs, heart problems, or lung problems that made compliance with the demand is either extremely difficult or impossible, a reasonable excuse will exist and the accused will not be convicted. Minor discomfort will not be sufficient to prove a reasonable excuse existed. The accused must be able to provide some evidence to the Court to corroborate their excuse. It is essential that the accused mention the condition they are suffering from at the time of refusal. Though this is not a legal obligation, failing to bring up the medical condition until the time of trial may result in the accused being convicted due to insufficient evidence to back up their claims.

Post Driving Consumption

An accused cannot argue that they have consumed alcohol after driving as a reasonable excuse for failure to comply. In these cases, the accused must comply with the demand and may bring up evidence of drinking after operating the vehicle at trial to show that they may not have been impaired at the time of operation.

Request for Defense Sample

An accused being denied a breath sample for his own use is not recognized by courts as being a reasonable excuse. As long as submitting to the sample does not expose the accused to danger or risk of danger a reasonable excuse will not be found.

Weather Conditions

Complaints about the weather (too cold outside, raining) are not sufficient to prove a reasonable excuse existed for the accused’s refusal.

Is the Crown Required to Prove that the ASD was Properly Functioning at the Time of Refusal?

Generally, no. The Crown will not be required to prove that there was a working ASD on site and available to accept a breath sample at the time of refusal. The Crown is only required to prove that a lawful demand was made by the officer and that the demand was unequivocally and intentionally refused by the accused. In cases where there were questions as to the reliability of the results rendered and the officer cannot recall the last time he tested or calibrated the machine, the results of the device may be called into question.

In certain specific cases the Crown may be required to provide evidence to show that the ASD was properly functioning at the time the demand was made. In situations where the accused has given an incomplete breath sample and then charged with refusal, evidence that the machine was not functioning properly could function as a full defence where the accused can prove they made a genuine and honest attempt to provide a breath sample but was unable to at no fault of their own. Whether the ASD was correctly functioning may also be relevant in cases where the lack of a functioning ASD could raise reasonable doubt in the case. In these cases where the Crown can present no evidence to prove that the device was properly functioning at the time the demand was made, the accused is entitled to a verdict in their favour.

Where the Crown does seek to introduce evidence proving that the device was functioning, testimony by the officer that it is their routine of checking the device before use will suffice even when the officer failed to make a note of such a check in their notes relating to the incident.

It is important to note that there is no presumption that Approved Screening Device will be in proper working order.

Is the Crown Required to Provide Evidence That the Device was Approved?

Courts have held that in a refusal case it is not necessary to prove that the device was an approved device because that is not an element of a refusal charge. Rather, the Crown must only prove that the officer made a lawful demand for a breath sample and the accused refused it either by unequivocally stating that they would not provide a sample or by feigning to provide a sample.

Refusal Where the Accident Caused Harm or Death – ss. 255(2.2) & (3.2)

According to the Criminal Code, anyone who commits the offence of refusal under section 254(5) and at the time of the refusal was aware or should have been aware that there had been an accident that may have caused serious bodily injury or death, the accused is guilty of an indictable offence under section 255(2.2) and (3.2) of the Criminal Code. Essentially, the fact that injury or death occurred will be considered an aggravating factor in the case against the accused.

The Crown will be required to prove that the accused knew or ought to have known based on the circumstances that they had caused an accident resulting in serious bodily injury or death. The accused must have this actual or constructive notice at the time they refuse to submit to the breath sample for the Crown to prove a section 255 case at trial.

Refusal Where a Car Accident Occurred

In cases where the accused is charged with refusing to submit to a breath sample where there was an accident causing serious bodily harm or death, the Crown will be required to prove that the accused was a significant contributing factor to the cause of the accident. The Crown is not required to prove that the accused was impaired during the operating of the vehicle. Rather, they simply must present evidence to show that the accused was in fact driving the vehicle and that the vehicle was a significant contributing factor in the accident. They must of course also provide evidence to show that the accused refused to submit to a breath test after the accident occurred.

Blood Test Evidence

As mentioned in previous sections, officers/technicians are only legally allowed to collect breath and blood evidence from an accused to prove impairment in court. Collecting samples of both breath and blood from an individual are considered serious infringements of the individual’s liberty interests and blood collection is considered particularly intrusive. As laid out in the Criminal Code there will be a bias in favour of obtaining a sample that is least intrusive as possible.

Where a demand for a breath sample has been made by an officer but cannot be collected because it is not practicable, then the officer may make a demand for a blood sample. This demand must be made clearly and forthwith or as soon as practicable.

What is a Valid Demand for a Blood Sample?

A valid demand for a blood sample will meet five conditions as follows:

  • The demand must be made by a peace officer who has probable cause to believe that the accused has been operating a motor vehicle while impaired or in the previous three-hour window.
  • The demand must be made forthwith or as soon as practicable after the officer develops reasonable grounds. There is no requirement that a medical technician be on the scene to retrieve the blood sample at the time the demand is made.
  • The officer must communicate to the accused at the time of the demand that the sample will only be taken by a qualified medical practitioner, or under the discretion of a qualified medical practitioner and only in cases where the blood sample would not endanger the accused’s health in any way.
  • The officer making the demand must have reasonable grounds to believe that a breath sample would not suffice under the circumstances. This is due to the invasive nature of the sampling process.
  • The officer must make it clear to the accused that only enough blood as will be required to get an accurate reading will be taken. The amount taken will thus be left up to the discretion of the medical practitioner administering or overseeing the sampling procedure.

It is important to note that the Crown will not be required to prove that the accused consented to the blood sample. This does not mean the accused cannot refuse. An accused can refuse a blood sample the same way they can refuse a breath sample and will be charged accordingly with a refusal.

When Must a Blood Sample be Taken?

Similar to a breath sample, a blood sample must be taken from the accused as soon as practicable to ensure that the sample is as accurate as possible. Where there is a reasonable excuse for delay between the officer encountering the accused and a demand made the demand, the delay will be reasonable. In R v. Grenke the police arrived at the scene of a car accident to find the driver of one car seriously injured. Though the officers had reasonable grounds to believe the injured party was impaired, the medical well-being of the accused took precedent over any demands for breath or blood samples. The Court found that the delay was reasonable because the accused’s medical well-being was the most important factor in the situation.

Wording of the Demand

For an accused to be convicted of a refusal to comply with a demand for a blood sample the demand must have been made pursuant to s. 254(3) of the Criminal Code. Specifically, the officer must notify the accused that the samples taken will only be collected by a qualified medical practitioner and that the samples will only be taken when the qualified medical practitioner is convinced that taking the samples will not create a serious risk to the accused’s health. This rule will also apply to cases where the accused attempted to comply but was unable to provide a sufficient sample for whatever reason. However, if the accused does provide a blood sample which proves that the accused was guilty, the evidence will often be used in court despite the lack of a proper demand.

Blood Samples Where the Accused is Incapable of Providing a Breath Sample

In some cases, where an accused is medically incapable of providing a breath sample (due to asthma for example), an officer may make an alternative demand for a blood sample. In R v. Caruth, an accused told officers he was incapable of providing a breath sample due to being asthmatic. As a result, the officers made a demand for a blood sample, which was subsequently collected. At trial the defense team argued that the police should not have relied on the accused’s reports of being asthmatic, that instead they should have relied only on the opinion of a medical practitioner. The Court held that officers are not required to corroborate an accused’s claims that they suffer from a physical ailment that prohibits them from providing a breath sample before making a demand for a blood sample. The officer must genuinely believe that the accused is incapable of providing a sufficient breath sample before making a blood sample demand. The officer does not have to believe that it will be impossible for the accused to provide a breath sample, they simply must believe that it is impracticable for the accused to provide a breath sample. Courts have granted police a significant amount of discretion with regards to what constitutes impracticability.

It is important to note that in cases where the accused may be initially unable to provide a breath sample due to an accident, the officers must inquire with medical professionals as to whether the accused is likely to be able to provide a sample within a two-hour window. Where it is apparent that an accused will be able to provide a breath sample within that two-hour window, no demand for a blood sample should be made.

Refusal of a Blood Sample Demand

Where an accused unequivocally refuses a valid demand for a blood sample, without a reasonable excuse, the accused will be charged with a refusal in the same manner as if they refused a breath sample demand. Where an accused refuses because they do not feel the medical practitioner who is collecting the blood sample is qualified with no basis to back up such an assumption, they will be charged with refusal. If, however, an accused is given the assurance that the test will only be administered by a qualified medical professional and that assurance is not complied with, a reasonable excuse for refusal will exist.

Warrants to Obtain a Blood Sample

Police Contact with the Sample Prior to a Warrant Being Issued

As a general rule, ambulance and hospital staff are not considered agents of the state for the purposes of being legally permitted to collect blood sample evidence for an impaired driving conviction. If medical staff do collect blood samples from the accused, the samples can only be used in court if a judge issues a court order in the form of a warrant forcing the hospital to hand over the samples to law enforcement. When blood is collected without a warrant by hospital staff, the simple fact that an officer handled the sample will not be considered a seizure and thus will be permissible. Similarly, officers are also permitted to make brief inquiries into whether a blood sample was collected and where it is being stored without having obtained a warrant. It is imperative for both the defense and the Crown that the evidence be safely and correctly stored to properly preserve evidence.

It is permissible for an officer to use information gathered through observations at the scene and of the accused as probable cause to get a warrant for further search and seizure. For example, in a case where an officer accompanied the accused to the hospital and observed the blood samples being taken without inquiring into the results of the test, the information gained during the observations could be used to obtain a warrant to collect and test the blood samples. As long as the officer is not invading the accused’s personal space or interfering with the effectiveness of the medical care being administered to the accused, the officer’s presence in the ambulance or at the hospital will not be unreasonable.

Section 256 of the Criminal Code

Under section 256 of the Criminal Code for an officer to be granted a warrant for a blood sample, they must satisfy a justice that the following conditions have been met:

  • That the accused committed an offence under s. 253 of the Criminal Code
  • That the accused committed the offence within the past four hours
  • That the accused was involved in a vehicular accident causing the death of a third party or bodily injury to the accused or a third party
  • That a qualified medical practitioner is satisfied that the accused is unable to consent to providing a blood sample due to a mental or physical incapacity resulting from intoxication or from injuries associated with an accident
  • That collecting the blood sample will not put the individual at risk of harm or death

A warrant granted under section 256 will allow officers to demand that a qualified medical practitioner collect a blood sample from the accused.

Section 487 of the Criminal Code

In addition to warrants granted under section 256, officers may also be granted warrants permitting them to seize blood samples collected by the hospital for medical purposes. This warrant will be issued under section 487 of the Criminal Code. Section 487.1 allows for ‘telewarrants’, where an officer will be permitted to request a warrant from a judge over the phone when they have reason to believe that an indictable offence has been committed and that obtaining the warrant by appearing before a judge in person would be impracticable. In such circumstances the officer will be required to provide reasons by phone for why their presence is person will be impracticable.

IMPAIRED DRIVING

What is the Difference between Impaired Driving and “Over .80”?

Impaired driving and “Over 80” are both criminal offences outlined in Section 253 of the Criminal Code. However, they are not the same thing, even though both charges arise when an accused person operates or has the care or control of a vehicle.

Section 253(1)(a) of the Criminal Code sets out that an impaired driving charge requires police officers to believe drugs or alcohol impair the person operating a vehicle. The charge is not dependent on a specific amount of alcohol in the system, rather it depends on evidence of any impairment. For example, impaired driving charges can arise when people are new to drinking or don’t have a very high tolerance for alcohol. Even a couple of drinks can yield impaired driving charges.

Comparatively, Section 253(1)(b) of the Criminal Code sets out that an over 80 charge refers to a specific amount of alcohol found in the blood stream of an individual. The charge requires alcohol be consumed in such a quantity that concentration in the person’s blood exceeds eighty milligrams of alcohol in one hundred milliliters of blood. This charge is laid after the police have conducted a sobriety test and found the accused violates this legal limit.

What does the Crown have to Prove for a Conviction of Impaired Driving?

For a conviction of impaired driving under Section 253(1)(a) the Crown must prove:

  • The Accused was operating a Motor vehicle or in Care and Control of the vehicle;
  • There was any amount of impairment of the accused ability to drive at the time;
  • The impairment was by alcohol or drug at the time.

A conviction for impaired driving does not require an individual be actually driving the vehicle. If the accused has a vehicle in his or her care and control, that is sufficient for an impaired driving conviction.

What is an Approved Screening Device (ASD)?

An approved screening device is a portable instrument that measures blood alcohol levels. Section 254 of the Criminal Code defines an approved screening device as a device of a kind that is designed to ascertain the presence of alcohol in the blood of a person and that is approved for the purposes of this section by order of the Attorney General of Canada.

An approved screening device is what police officers use to check for impaired driving at roadside stops. Police can ask you to submit to an approved screening device if they reasonably suspect a motorist has alcohol in his or her body.

An approved screening device is not the same thing as an approved instrument. The approved screening device is used portably by police officers to try and detect impaired driving. Comparatively, approved instruments are used in a controlled setting with a technician performing the test. Over 80 convictions require testing be done on an approved instrument.

What happens if I register a Fail on the ASD?

If a driver registers a fail on an approved screening device, this gives police officers reasonable grounds to require the individual to submit to a further test using an approved instrument. Approved instruments are used to gather evidence for criminal prosecutions.

A fail of the initial approved screening device may result in a temporary suspension of the driver’s licence, whether or not criminal charges are laid.

What Are the Penalties if a Warm Reading (.05 – 0.8) registers on an ASD?

If you give a roadside breath sample and your blood alcohol registers between 0.05 and 0.08 you will immediately lose your licence for 3 to 30 days. Although this is not a criminal offence, the consequences remain serious.

The penalties for a warm reading vary depending on whether it is the first time you have registered a warm reading or not. New penalties as of 2009 set out that:

  • First warm readings result in:
    • 3 day licence suspension;
    • $150 administrative monetary penalty;
  • Second warm readings result in (within 5 years):
    • 7 day licence suspension;
    • Mandatory alcohol education program;
    • $150 administrative monetary penalty.
  • Third warm readings result in (within 5 years):
    • 30 day licence suspension;
    • Mandatory alcohol treatment program;
    • Six-month ignition interlock licence condition;
    • $150 administrative monetary penalty.
  • Subsequent infractions (within 5 years):
    • 30-day licence suspension;
    • Mandatory alcohol treatment program;
    • Six-month ignition interlock licence condition;
    • Mandatory medical evaluation;
    • $150 administrative monetary penalty.

It is also important to note that these roadside suspensions cannot be appealed. They will be recorded on the driver’s record and for the next five years they will be considered when determining consequences for subsequent infractions.

Can you be Charged with Impaired Driving if you are Operating Machinery or Equipment?

Yes, you can be charged with impaired driving if you are operating machinery or equipment, provided it meets the description of a motor vehicle. Section 2 of the Criminal Code defines a motor vehicle as a vehicle that is drawn, propelled or driven by any means other than muscular power, but does not include railway equipment.

 Can you be Charged with Drinking and Driving on an ebike?

Yes, you can be charged with impaired driving if you are operating an ebike. Section 2 of the Criminal Code defines a motor vehicle as a vehicle that is drawn, propelled or driven by any means other than muscular power, but does not include railway equipment.

An ebike has been characterized as a motor vehicle.

Can you still be Charged with Impaired Driving if the Vehicle is Not in Motion?

Yes, Section 253 states that impaired driving charges can arise in two ways: (1) by operating the vehicle; or (2) by having the vehicle in his or her care and control, whether it is in motion or not.

Therefore, if a person is found consuming alcohol in their vehicle that is parked, he or she can still be charged with impaired driving because Section 253 does not require a vehicle be in motion for charges to arise.

What is Refusing to Provide a Sample?

Section 254(5) of the Criminal Code states that it is a criminal offence to fail or refuse to comply with a demand made for a breath sample without reasonable excuse.

Charges for refusing to provide a breath sample arise when an individual is stopped by police and asked to submit to a breath test, but the individual will not do so. It is a criminal offence to refuse to do so.

Can you be Convicted of both Refusing to Provide a Sample and Impaired Driving?

Yes, a person can be convicted of both refusing to provide a sample and impaired driving if evidence proves they are guilty of both. Impaired driving does not require proof from an approved device of a specific blood alcohol content. Therefore, it is possible to prove impaired driving without evidence from a screening device if the accused person refused to give a sample.

Sentencing for Impaired Driving

When an individual is being sentenced after having been convicted of a crime there are many factors that the judge may take into consideration to determine a just and fair sentence. These factors reflect the moral culpability of the offender. Typically, a judge will look at all aspects of the case including the circumstances surrounding the crime, characteristics of the accused, past criminal history of the accused, the seriousness of the crime committed and the harm caused by the accused.

Factors commonly considered by judges when sentencing individuals convicted of impaired driving include; whether the accused is a repeat offender, whether an accident resulted from the accused’s impaired driving, whether the accused had been driving dangerously while impaired, whether the accused’s impaired driving caused bodily injury to anyone and whether the accused’s impaired driving caused the death of a third party.

Repeat Offenders

Generally, judges will be more inclined to impose stricter sentences on those who have past impaired driving convictions.  Incarceration is a common sentence imposed on those who have been convicted of impaired driving multiple times. Courts have consistently shown concern for public safety when sentencing those with multiple impaired driving convictions. The theory is that the accused has not learned from their past impaired driving convictions so more drastic measures must be taken to deter them from such behaviour in the future. Where there is a large gap in time between past and current impaired driving convictions judges may be more lenient upon sentencing.

Impaired Driving Causing Accident

Courts have cited general deterrence as a major motivating factor in imposing harsher sentences on those convicted of impaired driving causing an accident. Where an accident occurs as a result of the accused’s impaired driving, even where no bodily injury occurs, courts will tend to impose higher-than-average monetary fines or even short sentences of incarceration.

Dangerous Driving While Impaired

Where an accused has been convicted of driving dangerously while impaired, sentences tend to be more severe. Courts will impose stricter sentences based on the accused’s culpability in the situation as well as the risk of harm they posed to others on the roads. The higher the risk of harm created by the accused’s dangerous driving, the stricter the sentence will be. In many cases, prolonged prison sentences have been imposed on those who have deliberately put others at risk.

Impaired Driving Causing Bodily Harm

Impaired driving causing bodily harm is one of the most serious impaired driving charges an individual can be convicted of. As a result, Courts tend to treat such convictions very seriously and sentence accordingly. In 2007, the Criminal Code was amended to state that conditional sentences are no longer available for those who have been convicted of impaired driving causing bodily harm. Citing the paramount concern of public safety and deterrence, Courts regularly impose significant prison terms to those who have been convicted. According to R v. Thompson, one to two and a half years in prison is an appropriate sentence for someone convicted of impaired driving causing bodily harm, however longer sentences have been imposed. The degree of bodily injury sustained by the victim will be a factor for the judge to consider when determining in the sentence.

In R v. Laforme the accused who had prior convictions for impaired driving was convicted of impaired driving causing bodily injury after crashing his cars with passengers inside on the way home from a bar. The accused had been cut off at the bar and advised not to drive. He was driving at a high rate of speed when the accident occurred. One of the passengers in the car was rendered a quadriplegic. Due to the severity and permanence of the injuries caused by the defendant, along with his past driving record, he was sentenced 12 months in prison in addition to 12 months which he had already served during pre-trial detention.

Impaired Driving Causing Death

Where death occurs as a result of impaired driving, the sentence imposed will be more serious than that of any other impaired driving charge. Courts have cited the increased problem of drunk driving in our society as the justification for imposing serious prison terms to those who have been convicted. Courts will take a case-by-case approach to impaired driving causing death convictions, ensuring all relevant factors are thoroughly considered. Generally, the sentencing ranges for those convicted of impaired driving causing death will be somewhere between 18 months and eight years, although longer sentences have been imposed.

For example, in R v. Bush, the accused was sentenced to 12 years in prison after pleading guilty to one count of impaired driving causing death. On the day the accident occurred, the accused had been driving erratically before flipping his car into a ditch filled with water. He then refused to help trapped passengers escape the vehicle until they agreed to tell the police his version of events. By the time officers arrived on the scene one passenger had drown in the vehicle. Due to the heinous nature of the accused’s behaviour after the accident occurred, the Court felt that a 12-year sentence was appropriate.

Are there any Minimum Jail Sentences associated with a Drinking and Driving Conviction?

Yes, there are minimum jail sentences for drinking and driving convictions. There are no minimum jail sentences for first convictions. However, if an individual is convicted of a second drinking and driving offence there is a mandatory minimum sentence of thirty days imprisonment. For any subsequent offences, a mandatory sentence of at least 120 days imprisonment will be imposed.

We are well equipped and experienced with drinking and driving defence tactics, often working closely with toxicologists. These allegations are very complex. We undertake a forensic analysis of police statements including operating and calibration protocol for Breathalyzer and roadside screening equipment. We actively defend allegation of impaired throughout Ontario.

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