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To Blow or Not To Blow – It Is Not A Question

You should never refuse a breathalyzer demand

Take Away:

(1) If you are approached by a police officer while driving, or immediately after driving, it is in your best interest to comply with any breath demand made by the officer. You are legally obligated to comply with a valid breath demand.

(2) If you are asked to blow into a device at the roadside, you are not entitled to speak to a lawyer first. If you are required to provide a breath sample in a police detachment or at a Checkstop Bus, after being formally arrested, you are entitled to speak with counsel.

(3) There are a number of defences available if you provide a sample; there are very few defences if you do not.

It is a familiar sight to almost everyone who routinely drives in an urban center. Several police vehicles line the road, pylons are set up to direct traffic, maybe a large bus is parked off to the side, illuminated for safety. And one by one the vehicles ahead of you are waved to an empty slot by a police officer wearing a bright yellow jacket. Once parked, the drivers are questioned and almost inevitably presented with a hand-held device and told to provide a sample of their breath for roadside screening.

This new law has made roadside screening samples essentially mandatory for anyone operating a motor vehicle.

Aside from organized Checkstops, like the system described above, police forces across the country devote a significant amount of resources to monitoring impaired driving. Law enforcement agents are constantly alert for any potential sign of impairment: an odour of alcohol, red eyes, nervousness, slurred speech, fumbled hand movements. Under their watchful eye nearly anything can be perceived as a sign of impairment, causing a routine traffic stop to seamlessly merge into an impaired driving investigation.

A New Approach

On December 18, 2018, the new Criminal Code impaired driving offences came into force, supposedly taking new and bold steps to address the ongoing issue of impaired driving, both by alcohol and drug. These provisions completely revamped the rules relating to impaired driving litigation and one of the most significant changes is mandatory roadside screening.

Essentially, the new section of the Criminal Code allows any officer in possession of an approved screening device to conduct a traffic stop and require the driver to provide a sample of their breath into the device. The officer does not need to have any reason for the request – they are not required to identify the presence of alcohol in driver’s body, either by asking about consumption or detecting an odour of alcohol or recognizing the telltale signs of consumption. This new law has made roadside screening samples essentially mandatory for anyone operating a motor vehicle. As in this case from B.C., a police officer is authorized to demand that a driver provide a breath sample “fortwith” for a screening test.

While time will tell if this new amendment passes constitutional muster, what does this mean for the average person driving down the road today or tomorrow? What does it mean for you, right now?

Refusing to provide a breath sample, or failing to provide an adequate sample is a Criminal Code offence. The penalties are identical to those associated with impaired driving or driving over the legal limit – “over 80”. However, the defences are not the same. There are very few defences to a refusal charge, especially when compared to the number of defences available for an over 80.  

Further, the new amendments have made it abundantly clear that a refusal or failure to comply with a breath demand can be relied on to make a negative inference, the inference being that if you won’t provide a sample, you are likely impaired or hiding your level of consumption.

Because of both these reasons, regardless of what your readings will be, it is always in your best interest to provide a breath sample.

What About My Lawyer

One of the most common things we see in our line of work is people who refuse to provide a sample at the roadside because they want to call a lawyer.

Generally speaking, anyone detained by the police is entitled to call a lawyer before participating in any part of an investigation. However, for the purposes of sobriety screening, drivers are not entitled to contact counsel prior to providing a screening sample at the roadside.

The short version behind why this is the law is public safety and balancing. Our Supreme Court has held that impaired driving is a significant societal concern that justifies a minor intrusion of one’s rights, both to be free from unreasonable search and seizure and the right to contact counsel.

If you are formally arrested and transported to either a police detachment or a checkstop bus, you will be provided with an opportunity to contact counsel before providing additional, evidentiary breath samples into a more sophisticated measuring instrument.  You should exercise your right to counsel at this time.

Our lawyers have extensive experience in the area of impaired driving, including issues with refusal to blow. If you have been charged for any of these related offences, contact us today to start your defence.

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