All breathalyzer demands are mandatory

Back in December, the new amendments to the Criminal Code came into effect, including what is called a mandatory roadside breathalyzer test. In essence, the police can demand that a driver provide a sample of their breath into a roadside breathalyzer (Approved Screening Device, A.K.A ASD) without any grounds to believe the driver has been drinking. Lawyers, including us, labelled this “arbitrary breath testing” because there is no test regulating the behaviour of the police. The Government decided to call it “Mandatory Alcohol Screening.” But what’s in a name? It turns out quite a bit because all breathalyzer demands are mandatory.

There are, in fact, three types of breathalyzer demands under the Criminal Code including the new Mandatory Alcohol Screening demands. And the issue then becomes, if one is mandatory are the others then optional? If one is called “mandatory,” does that then make the ones that are not called “mandatory” then “optional?”

As it turns out all of the alcohol-impaired driving investigation breath demands are all mandatory. There is no such thing as an optional demand.

“We bring this up because we’re already seeing people argue with the police about whether they are entitled to refuse or whether they are required to blow.”

The three types of breathalyzer demands: 1) Mandatory

The new breathalyzer demand, the so-called Mandatory Alcohol Screening ASD demand, instructs the police to compel a driver to blow into an ASD if the officer pulls the person over for a lawful purpose, such as to check the driver’s sobriety, and the officer has an ASD roadside breath tester on them. The section of the Criminal Code reads like this:

Mandatory alcohol screening

320.27(2) 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.

This provision is highly suspect. Firstly, it’s very intrusive. Anyone can be pulled over without having done anything wrong, and the officer can demand the person to blow right then and there. When you imagine a senior, who hasn’t had a drink in 20 years being forced to blow into a tricky little machine, you immediately see the problem. If they refuse or can’t blow, they face a $2000 fine and a criminal record.

In addition to being intrusive, it’s unnecessary. You will not find news stories of people who slipped through a roadblock before this law came into effect only to have an accident or get caught driving impaired shortly afterward. Drivers who have been drinking don’t slip through roadblocks. We have never known officers not to be able to detect the drivers who have been drinking and pull them aside for further investigation.

Finally (not finally because we have 100 more points) it’s a violation of the implied agreement we have with our government, which is if we don’t drink before driving, we should be permitted to go about our business without being accosted by the police. Drivers who drink first accept that they may come under police scrutiny. Drivers who don’t should be free to go about their business in a free and democratic society.

The three types of breathalyzer demands: 2) Reasonable Suspicion

The roadside breathalyzer demand most Canadians are familiar with is the Reasonable Suspicion demand. In this circumstance, the officer must also have a lawful reason for dealing with the driver, but the officer needs to go one step further which is to observe evidence that allows the officer to form an opinion that the driver has alcohol in their body. Most of the time the officer forms the opinion from an odour of liquor from the driver’s breath. Sometimes the driver admits to recently consuming alcohol. In either case, a person who has been drinking and should know that they may be detained for investigation is then subject to a demand to blow into an ASD.

The new provisions of the Criminal Code are similar to the old provisions, but with a few important and, we note, already overlooked changes. The new provisions read as follows

Testing for presence of alcohol or drug

    320.27 (1) If a peace officer has reasonable grounds to suspect that a person has alcohol or a drug in their body and that the person has, within the preceding three hours, operated a conveyance, the peace officer may, by demand, require the person to comply with the requirements of either or both of paragraphs (a) and (b) in the case of alcohol or with the requirements of either or both of paragraphs (a) and (c) in the case of a drug:

        (b) 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 an approved screening device and to accompany the peace officer for that purpose;

There is an important thing to note in the suspicion demand provisions. Although the demand does not say it is mandatory, all breathalyzer demands are mandatory. But ask yourself, by omitting the word “mandatory” is the law now inviting people to refuse to blow if the officer makes a reasonable-suspicion breath-test demand?

We bring this up because we’re already seeing people argue with the police about whether they are entitled to refuse or whether they are required to blow. Some drivers seem to want to know if it’s a “mandatory” ASD demand or a suspicion demand which isn’t referred to as “mandatory.”

This is destined to be an issue decided by the courts.

The three types of breathalyzer demands: 3) Reasonable Grounds demand

A demand for alcohol breath samples can be based on innumerable considerations but it should only come when the police officer has recorded the evidence they are relying on, they came to the conclusion based on the evidence before them at the time and, upon reconsideration by the court, it is objectively reasonable to have come to the conclusion. In other words, the investigating officer can make a demand for a subject to blow into the big evidence breathalyzer only when they have reasonable and probable grounds to conclude that the driver is at or over 80 mg%.

Among the innumerable considerations may be the results of the ASD tests that they collected from either of the two demands for ASD breath samples described above, or other evidence that the officer learns or observes that is reliable and would lead a reasonable person to conclude that it was more likely than not that the driver committed the offence of driving at or over 80. The new demand sections read as follows:

Samples of breath or blood — alcohol

    320.28 (1) If a peace officer has reasonable grounds to believe that a person has operated a conveyance while the person’s ability to operate it was impaired to any degree by alcohol or has committed an offence under paragraph 320.14(1)(b), the peace officer may, by demand made as soon as practicable,

        (a) require the person to provide, as soon as practicable,

            (i) the samples of breath that, in a qualified technician’s opinion, are necessary to enable a proper analysis to be made by means of an approved instrument, or

Once again, you will note the omission of the word “mandatory” which has interesting implications. Although in Canada all breathalyzer demands are mandatory, only one is called “Mandatory.” All of the demands say the word “require” but only the arbitrary test is described in the title as “mandatory.”

This isn’t a trick

All breathalyzer demands are “mandatory” because you must blow and if you refuse without a darned good excuse you face serious consequences. We don’t think that the Federal Government intended to trick people into thinking some breathalyzer demands are mandatory in Canada while others are optional. Nevertheless, we are already seeing confusion at the roadside. We already see cases where people are engaging with the police to question whether this is a mandatory breath demand or something optional.

The arbitrary breath testing law has significant problems, most of which the Government is prepared to fight about in court. One thing they haven’t considered is that by calling their arbitrary breath test procedure “Mandatory Testing” they have implied to many drivers that other breathalyzer tests are optional. But don’t be fooled.  All breathalyzer demands are mandatory.

If you’ve had a recent encounter with the police in a drinking driving case, give us a call. We’ve already successfully defended Mandatory Alcohol Screening cases and we’d be glad to help you with yours if possible.