When I wrote the last blog post, do I really have to blow, I had a particular case in mind that had come across my desk just days earlier. The driver in that case had purportedly refused to blow. The passenger made a video of what transpired after the original ASD demand. It was clear to me that the discussion at the roadside undermined the requirement to blow. The normal answer to the question “do I really have to blow in the breathalyzer” would be yes, but in this case there was a good reason to refuse. The question for us was whether we would succeed at the IRP appeal hearing.
What starts as a lawful ASD demand becomes unlawful because the police explain that the Criminal Code has nothing to do with it.
As I explained in the last post, the demand that starts the process leading to the issuance of an Immediate Roadside Prohibition has legal authority from the Criminal Code. A peace officer who suspects that a driver has alcohol in their body is to read or recite a demand that the person provide a suitable breath sample into an Approved Screening Device. The Criminal Code authority includes a limited use function. Essentially, because ASD testing violates the Charter of Rights, the results of the tests are not used to prove essential elements of the criminal case.
The demand comes with the threat that that a subject who refuses or fails to blow can face criminal prosecution and a criminal conviction. But what if there is no chance, exactly 0%, that any criminal prosecution is considered or would ever happen? What if the idea all along is to issue an Immediate Roadside Prohibition?
Honest cops
We know that the common practice is that the police tell people if you blow and the result is Fail you’ll get a 90-day Immediate Roadside Prohibition. In the same discussion the police commonly tell people if they don’t blow it will be the same – a 90-day IRP. This has become part of the demand procedure.
This makes perfect sense because that’s what is actually going to take place. So you can’t blame the police for providing this additional information. What starts as a lawful ASD demand becomes unlawful because the police explain that the Criminal Code has nothing to do with it.
A big concern for the big bosses
The truth is that the IRP will flow from the ASD demand and not a criminal investigation or criminal charges. The police know that. The problem is when they tell you that it makes it no longer a lawful ASD demand. In other words, if the police tell you the truth about the nature of the investigation, the ASD demand is unlawful.
You’re entitled to refuse an unlawful ASD demand but good luck proving what actually took place. The big bosses are terrified that the IRP scheme will be called into disrepute so they don’t want to recognize this problem. If IRPs are revoked because of unlawful demands the entire scheme could collapse so there is a structural bias we see toward finding that the demand is lawful.
Determining if you must blow
Whether the ASD demand was unlawful is an issue of forensic analysis. Importantly, the forensic analysis of the lawfulness of the ASD demand is not something that takes place at the roadside and it’s really foolish to try to make that determination yourself. But if it’s an unlawful ASD breath demand, what of it?
If you refused to blow, you have a defence if the breath demand was unlawful. That’s because you’re entitled to refuse an unlawful breath demand. At the same time your Charter rights are violated because the process is no longer lawful and therefore so is your detention by the police.
What happens if you blow a Fail and the ASD demand was unlawful?
If you blew Fail, and the ASD breath demand was unlawful, the Government’s position at least until May 19, 2015, has been that you have no defence that arises from the unlawful breath demand.
What is the Government’s position today? We’ll show you the evidence in “Do I really have to blow? Part 3” and we’ll all try to spot the moving target.