With the long weekend fast approaching, people should be prepared to see a lot of police roadblocks. And while you should always arrange in advance for a safe ride home, it is never a bad idea to be equipped with the information necessary to protect yourself should you be stopped.
This blog post will give you five helpful tips to best protect yourself if you are stopped at a police roadblock.
Do Not Admit Drinking… But Also Do Not Lie
A lot of people are under the mistaken impression that you are obligated to tell police whether you have been drinking at a police roadblock. This is incorrect. You have a right to silence, and you should absolutely exercise it. Even admitting one drink could be enough for the police to suspect you’ve been drinking and pull you over for further evaluation.
Of course, this does not mean that you should lie to the police. If you lie and say you have not been drinking, or you say your last drink was a lot earlier than it was, this can be held against you later on. In British Columbia, the law is such that if you lie or mislead police about your drinking you will most likely be found to lack credibility and your evidence will be called into question if you are given a prohibition that you want to dispute.
However, silence cannot be held against you.
So the best answer to the question of whether you’ve been drinking or when your last drink was is to simply say nothing.
Mask Up!
Public health recommendations across the world right now are to wear a mask when interacting with others in close proximity. As unfortunate as it is, police are not respecting social distancing at roadblocks and will likely not be wearing a mask. But there is no law against you wearing a mask to protect yourself from the officer.
It is in your best interest to wear your mask at the police roadblock. Not only will this be a helpful physical reminder that you are to keep your mouth shut, but it will also keep the police from being able to claim that they smelled liquor on your breath.
Silence cannot be held against you.
I commonly hear from clients who had not been drinking, or who had not had anything to drink in hours, that they were told by the officer that there was an odour of liquor on their breath. The reason police say this is that it gives them the legal authority to demand a breath sample. If you wear a mask, the police will not be able to smell your breath and therefore will be less likely to demand that you blow.
And, of course, there’s the added benefit of protecting yourself from the spread of COVID-19.
Have Your License and Insurance Ready
Commonly, I see cases where police claim my clients were fumbling with their insurance and insurance documents. This happens because people are nervous and their hands are shaking. If you have your license and insurance ready and in your hand before the officer gets to your window, then they won’t have the chance to say you are fumbling or reacting slowly in finding it.
Of course, some police officers interpret the fumbling and nervousness as a symptom of impairment. And this can lead to you being singled out for further investigation.
When you had your license and insurance over to the police officer, remember that they can ask you to state the following information:
- Your name and address;
- Name and address of the registered owner.
While police can require you to identify yourself, which is achieved by producing the license, your obligation under the Motor Vehicle Act is only to state the above information and no more. If the officer starts to question you about other details, remain silent.
Record the Interaction, Politely
There is no law against recording police. However, you should do so in a polite way that is not obstructive or intrusive. If you are confrontational about it or draw attention to the fact that you are recording, the officer will likely change the way they are interacting with you in response to that. This could mean that the evidence you are trying to capture is lost.
If you keep your phone in your shirt pocket or hold it in your hand without drawing attention to the fact that you are recording, you are more likely to capture an honest account of what occurred and you are also likely to come off as polite and cooperative, which will help you down the road.
Do Not Turn Away… Unless You Want to be Stopped
While there is no legal obligation to proceed through a police roadblock in British Columbia if there is an alternative pathway available, you can safely assume that police have though this one through.
If you pull a u-turn, turn down a side street, or back away from a roadblock you can expect that an officer will be positioned to watch for this and stop you to check your sobriety. This conduct is viewed by many police officers as an admission of guilt.
So if you think you can avoid the roadblock once you’ve spotted it, you probably can’t. Remember that if you can see the police, they can probably see you too.
If You Are Asked to Blow, You Must Blow
It is a criminal offence to refuse to blow. And if you’re charged criminally and convicted, the consequences are worse than if you blew over the legal limit at a low level. So there is no advantage to refusing to blow. Under the BC Motor Vehicle Act you can face the same 90-day prohibition and 30-day vehicle impoundment if you refuse to blow.
This poses some serious problems in the face of COVID-19, especially as many officers are not wearing masks or gloves, or washing or sanitizing their hands between individuals. And the roadside breathalyzers cannot fully be sanitized or cleaned between use either. A legitimate concern about catching COVID-19 may constitute a reasonable excuse for refusing to blow, but you’ll end up having to litigate that while facing the consequences rather than being on your way.
Remember too that refusing and failing to provide a sample are considered to be the same thing. This means that if you think you are being clever by not doing anything, or by talking over the officer and not blowing but not expressly saying no… you’re not. Similarly, pretending to blow or faking taking the test will land you with the same consequences.
If you legitimately have a reason you cannot blow, like a medical condition, my best advice is to make an effort to take the test anyway and show that you are trying. It is better to try and fail than it is to refuse to even attempt the test. And as soon as possible after you attempt the test, contact your doctor to let them know what happened and to start to get as much medical information as possible to support your case.
Be Careful of the Second Test
In British Columbia, police are obligated to advise drivers of the right to take a second test. This means if you are facing a roadside suspension, you have the right to blow again and see if you get a lower reading. But be careful! The second test can do more harm than good.
If you’ve recently consumed alcohol or one of several products that contain alcohol, your reading could be falsely elevated by that recent consumption. A second test could produce a lower reading if it is sufficiently long after you had the alcohol or alcoholic product. However, if there’s a chance you could be over the limit based on what you drank before, then the second test may end up being evidence to confirm the first.
Ditto for burping or regurgitating before the first test. If something only affects the validity of the first test, then you run the risk of eliminating the bad result and replacing it with one that is considered reliable.
And remember that there are plenty of issues you can’t know, like whether the breathalyzer was calibrated or suitable for use. If you take a second test, and your first test was not calibrated properly, you end up replacing that result with one on a properly calibrated device.
So take the second test at your own risk!
Take Good Notes and Call a Lawyer in the Morning
If something goes awry at the police roadblock and you end up with a driving prohibition, you have the right to call a lawyer.
However, there is nothing a lawyer can do for you right then and there while you’re waiting for your car to be towed. Your best plan is to get out your phone and start typing in the notes app about what just happened in as much detail as possible. The more you write down while it is fresh in your mind the better. This includes the events of the evening leading up to the police roadblock, as well as what happened at the roadblock. That way, you will have something you can share with your lawyer later on.
In the morning, after you’ve had a good sleep and a cup of coffee, give us a call. We’re here to help.
I’ve got an irp, I blew both times a fail, however it was on the same device. Is this a cause for dismissal? Thanks