In less than a week the drinking driving law landscape is changing dramatically and Canadians need to know about it. Most people know the phrase “ignorance of the law is not an excuse.” What it means is that even if you don’t know the law on something, you’re still governed by it. And right now that phrase takes on a special meaning because it applies equally when there is a change in the law. Ignorance of a change in the law is also no excuse. So pay attention because this change to drinking driving law is likely to have an effect on you even if you don’t drink.
Random breath tests
The biggest change that poses the greatest threat to drivers is random breath tests. Assume, for a moment, that you pull up to a roadblock tonight and you’ve had nothing to drink in days. The officer will typically ask a few questions to satisfy themselves that you have no alcohol in your body and you’ll be on your way. But what happens when the law changes on December 18, 2018?
If you are asked by the police to blow into an ASD, you must do your best to blow as they direct. There are no two ways around it.
As of December 18, 2018, the officer will no longer need to have a reasonable suspicion that you have alcohol in your body to force you to blow into a roadside breath tester (an Approved Screening Device or “ASD”). Prior to December 18, 2018, the police officer might not like the way you look, he might be jealous of your truck, he might just want to jerk you around but, if the officer has no reasonable suspicion, in most cases he must permit you to proceed.
What about after December 18, 2018? The law is changing fundamentally because the police will no longer need any suspicion of alcohol in a driver’s body to compel the driver to blow. So, if the officer pulls you over and he or she doesn’t like the way you look, they can direct you out of your vehicle to conduct an ASD test.
Now they’ve got you. You might find yourself facing an ASD like the one Kyla blew into that wouldn’t take a sample, or the one that registered a Fail when a sober on duty police officer blew into it. Or you might be cleared in 10 minutes and be on your way. Or you might just find that for whatever reason you simply can’t expel enough air to make the ASD accept a sample because you’re sick or nervous, have a disability of some sort or you’re a smaller person.
Will this be random? Really?
We are confident that some police officers will form some personal decision making process so that they do not target people, i.e. so that they won’t simply compel drivers to provide ASD samples on the basis of some personal prejudice. But we also know there will be others who are less judicious. Whether or not they know it, we expect some more poorly-contained prejudices, such as we sometimes see toward young South-East Asian men, may be acted upon more often and in a more dramatic fashion.
What do you do after December 18, 2018?
If you are pulled over for any reason starting December 18, 2018, regardless of whether you’ve been drinking you absolutely must do your best to comply and provide a breath sample to the police ASD. If you’re ignorant of the change in the law, that’s not an excuse. If the officer is only making you do it because you’ve had run-ins with her at the condo meetings, you must still blow. If the purpose of the demand is just a ruse to make you stand in the rain, you must do it. From December 18, 2018, onward, if you are asked by the police to blow into an ASD, you must do your best to blow as they direct. There are no two ways around it.
Many people have some knowledge about police protocols in a traffic stop. Many drivers think that the officer needs probable cause to make the stop and most drivers think that the officer can only make an ASD demand if there is evidence that they’ve been drinking. Both of these propositions are wrong. The first is wrong to start with. The second is wrong as of December 18, 2018.
Bad news for those ignorant of the law
So far the government has done nothing substantive to warn drivers that the drinking driving law landscape is changing. Our concern is that many people will not know about this change and will find themselves facing an IRP for refusal to blow, or worse the possibility of a criminal conviction for ASD refusal. We encourage the readers of our blog to tell their friends about this change to the law because even if you don’t know about it and the law changes, you’re still governed by it.