Roadside Alcohol Screening Device—What You Need to Know
While Canadian police have had the legal authority to demand mandatory alcohol screening from any driver since December 2018, many Canadians still believe that an officer needs to have reasonable grounds to believe that a driver may be impaired before demanding a breath sample. "Some of our clients think we'll be able to get their impaired driving charges dismissed because an officer didn't have probable cause to demand a breath sample," says criminal defence lawyer Jeff Mass of TorontoDUI . "They are kind of shocked when we tell them Canadian legislators amended DUI laws in 2018 to allow police to demand roadside alcohol breath screening from any driver, even absent indication of possible impairment."
TorontoDUI defence lawyer Robbie Tsang adds, "We're amazed that so many Toronto drivers don't know that police have this authority, especially given that OPP (Ontario Provincial Police) announced last May that its officers would demand a breath sample from every driver pulled over for a traffic stop in the GTA. They were quite public about this new policy, and the news media certainly broadcasted it." Mass and Tsang further noted the belief that police still need probable cause to demand roadside screening, which causes some drivers to refuse the breath test. "They're convinced the lack of probable cause will help get their 'refusal to blow' charges dropped," says Tsang.
Whether you're pulled over by an OPP, RCMP, or Toronto Police Service officer, if they're equipped with an approved roadside screening device, there is a high likelihood they will demand you undergo mandatory roadside alcohol breath testing. Given the apparent lack of public understanding about mandatory alcohol screening in Canada, TorontoDUI has put together this primer on what you need to know about it and roadside screening devices.
Canadian Police Usage of Roadside Screening Devices
Section 320.27 of the Criminal Code has authorized Canadian police agencies to use portable breath alcohol and bodily substance drug screening devices to help identify impaired drivers since 1985. This authority hinged on an investigating police officer having "reasonable grounds to suspect that a person has alcohol or a drug in their body" and driven a motor vehicle within the past three hours. Without these "reasonable grounds," a police officer's demand for roadside screening constitutes an illegal search. In court, challenging a lack of reasonable grounds helped numerous defendants get their DUI charges dropped over the decades.
Meanwhile, Canadian police agencies only made limited usage of portable screening devices in the 1980s and the first half of the 1990s. The reliability and accuracy of early model roadside screening devices were frequently challenged in court, as were protocols and procedures police used (or failed to use) in their roadside screening. Additionally, Canadian courts quickly established that the screening results could not be used as evidence against DUI defendants. Police could only use the screening to help police determine whether to conduct additional breathalyzer or blood testing for admissible evidence.
The technology used in today's roadside screening devices makes them reliable and accurate, while amendments to the Criminal Code dictate stringent guidelines for police roadside screening and device testing and calibration. Screening results are still inadmissible as evidence in court, but they are highly effective at helping police establish probable cause to demand additional impairment testing. Thus, today, many officers in all police agencies are equipped with roadside screening devices.
Mandatory Alcohol Screening Comes into Play
Enacted in December 2018, Section 320.27 (2) of the Criminal Code states:
"If a peace officer has in his or her possession an approved screening device, the peace officer may, in the course of the lawful exercise of powers under an Act of Parliament or an Act of a provincial legislature or arising at common law, by demand, require the person who is operating a motor vehicle to immediately provide the samples of breath that, in the peace officer's opinion, are necessary to enable a proper analysis to be made by means of that device and to accompany the peace officer for that purpose."
In layman's terms, this gives the police authority to demand any driver to exit their vehicle for the purpose of providing a breath sample into an approved screening device to determine whether they may be impaired by alcohol. From a defence lawyer's perspective, a driver stopped by police should be aware of two critical elements of the legal language: that the officer has an approved screening device in their possession, and the term "immediately" when police made a screening demand. We have seen cases in which judges have dropped charges because an officer requested another officer bring the screening device to their location and in which police dallied before making the demand or carrying out the actual screening.
Consequences of Refusing Mandatory Alcohol Screening
As amended in 2018, Section 320.15 of the Criminal Code makes it illegal to refuse a demand for alcohol and/or drug screening. However, under the law, police technically still need "reasonable grounds" to suspect that a driver has drugs in their system before demanding drug screening.
The Federal penalties for refusing roadside screening are the same as those for a standard DUI conviction. Ontario's Highway Traffic Act mandates additional penalties, including an immediate 90-day administrative driver's license suspension, a $550 administrative penalty, and seven-day vehicle impoundment, with a $275 fee. Drivers who are ultimately convicted of a refuse-screening DUI face a driver's license suspension, mandatory alcohol/drug education or counseling, and other onerous penalties.
Roadside Breath Testing in Practice
When police demand roadside screening, they must clearly explain the driver's legal obligation to comply with testing and the legal consequences of refusing it. An approved roadside screening device must be in their possession when the demand for testing is made. Officers are also required to ensure that their device is properly calibrated and tested. An officer's demand for screening must be carried out promptly, and the testing itself cannot cause an unreasonable detainment of the driver. For their part, a driver does not have the right to consult with their lawyer before consenting to screening.
In Ontario, if the approved screening device indicates the driver's blood alcohol concentration (BAC) exceeds 0.08%, police can arrest them for criminal DUI and transport them to the police station for additional testing. If the device indicates a BAC in the 0.05%-0.079% warn range, officers have the discretion to issue a verbal warning or issue an administrative impaired driving warn range citation. Administratively cited drivers face fines, short-term driver's license suspensions, and other possible penalties.
Police can arrest a driver for a DUI based on refusing roadside screening for outright refusing to submit to roadside testing or failing to provide a suitable breath sample into the device. To provide a suitable sample, drivers must blow hard enough to trigger sensors that activate a buzzing sound. If the buzzer fails to sound, an officer will warn the driver to try again with a more robust exhale or risk arrest if they fail to trigger the buzzing.
Raising Defences Against Mandatory Alcohol Screening
Criminal defence DUI lawyers generally recommend that drivers should always submit to the mandatory alcohol screening. Mounting a defence against screening refusal DUI charges is challenging unless there are obvious police procedural mistakes or the driver has relevant medical issues. Reasonable medical excuses for refusing roadside screening include respiratory problems, recent oral surgery, or mental impairment.
For Expert DUI Defence in the GTA, Contact TorontoDUI
If you're charged with DUI in the Greater Toronto Area, you should always secure the services of an experienced criminal defence DUI lawyer. A DUI conviction carries harsh penalties and a life-changing criminal record. A competent defence lawyer can help you navigate the legal arena and help strategize the most effective defence. With a stellar 15-plus-year record of securing favourable outcomes for thousands of Toronto-area clients arrested for DUI, contact TorontoDUI for a free consultation.
