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Section 254 of the Criminal Code gives police the power to make certain demands if they reasonably suspect a person has alcohol or a drug in their body and has operated or had care or control of a motor vehicle within the past three hours. It is an offence for a person to refuse one of these demands.
A police officer may make a demand when they have reasonable suspicion a person has consumed alcohol or a drug and operated a motor vehicle within the past three hours. Their suspicion may be based on their own observations or by others’ observations that have been communicated to them. The officer does not have to suspect the person is actually impaired by the alcohol or drug, just that they have consumed it. For example, an officer seeing a person leave a bar and get into the driver’s seat of a car might be enough to form reasonable suspicion and make the demand.
If an officer suspects a person has consumed a drug, they can demand a person to submit to a physical coordination test. If they suspect a person has consumed alcohol, they can demand a physical coordination test, a breath sample, or both.
The physical coordination tests that may be demanded are prescribed by regulation.
Breath samples must be given on an approved screening device (or ASD). A full list of ASDs is also prescribed by regulation.
ASDs are portable devices used by police to determine whether or not a person has consumed alcohol. If a person fails an ASD test, police can demand the person accompany them to a police station to give another sample on an “approved instrument”. The results from an ASD are not admissible in court as evidence of blood alcohol content.
“Approved instruments” are non-portable devices that measure blood alcohol content. A list of approved instruments is prescribed by regulation. Breath samples on an approved instrument must be taken by a qualified technician.
If a police officer has reasonable grounds to believe a person cannot provide a breath sample (for example, because of a health problem), a demand for a blood sample may be made. A blood sample must be taken by someone qualified to do so, under the direction of a qualified medical practitioner.
If, after a physical coordination test, a police officer believes a person is impaired by a drug or combination of alcohol and a drug, they may demand a sample of oral fluid or urine for analysis. They may alternatively demand a blood sample, but this must be taken by someone qualified to do so, under the direction of a qualified medical practitioner.
It is an offence to fail or refuse to provide a sample demanded by a police officer without a reasonable excuse. The court usually interprets “reasonable excuse” very narrowly, and it is up to the person claiming an excuse to prove it.
The sentence for failing to provide a sample is the same as a sentence for impaired driving or driving over 80. These offences are separate offences, which means driving while impaired and refusing to give a breath sample will result in two criminal charges rather than one.
Disclaimer: this article is for information purposes only and is not legal advice. For legal advice, contact Matt Gould now to discuss your case.