There have been some developments regarding the offence of failure to provide a breath sample. But first, some background. In December 2018, the federal government introduced changes to the Criminal Code. They included eliminating the reasonable suspicion standard for a breath test.
Previously, police officers needed a reasonable suspicion – such as the driver smelling of alcohol or admitting drinking– to order a person to blow into an Approved Screening Device (ASD). Following the changes, the law now requires you to comply with a breath demand, regardless of the reason, or lack thereof, for the demand. It also means the officer does not need to say what led to the ASD demand later in court.
Challenging a failure to provide a sample charge
Refusing to comply is a bad idea – there are defences available to you if you comply but virtually none if you don’t. Even if you comply, you might find yourself accused of failing to provide a valid sample.
That is exactly the situation 76-year-old driver Norma McLeod found herself in. She was pulled over after driving out of a liquor store parking lot. A police officer demanded a breath sample using the new random breath testing provisions.
When Mrs. McLeod was unable to provide an adequate sample of breath, the officer issued her an Immediate Roadside Prohibition (IRP). Her licence was suspended for 90 days and her car impounded for 30 days. According to reports she incurred thousands of dollars of costs, including towing and storage fees and $930 to attend the Responsible Driver Program.
Mrs. McLeod appealed to the Superintendent of Motor Vehicles. She said she was unable to properly blow into the roadside screening device due to an implant in the roof of her mouth resulting from cancer treatment and she also suffers from a chronic lung condition. The Superintendent rejected the appeal and Mrs. McLeod has now filed a constitutional challenge against the mandatory breath test provisions.
Matter of time
Earlier this year, we said it was only a matter of time before a constitutional challenge was made against the elimination of the reasonable suspicion standard. Courts treat failure to provide a breath sample in the same way as a refusal.
If you appeal against a failure to provide a breath sample charge. The onus is on you to prove you did not intentionally try to cheat the test. You can argue you were unable to provide a sample on medical grounds, as is the case in Mrs. McLeod’s argument.
We predicted a constitutional challenge would come along soon enough on the grounds that random breath testing amounts to a violation of Section 8 of the Charter. The BC Supreme Court will hear arguments that it is an unreasonable search as well as arguments that it violates ss. 9 and 10 which protect freedom from arbitrary detention and right to counsel.
Acumen Law Corporation has a proven track record of overturning IRPs for our clients. If you have an IRP, call us for a free consultation on 604-685-8889.
Why is it that this is not treated as discrimination against people with breathing ailments? People with health issues are being punished for something out of their control. So, simply because they can’t breath properly, due to asthma or COPD, something that already majorly negatively affects their life, they’re going to be punished for that and told they can’t drive for 90 days. This is a grievous misconduct!