Two important court cases were recently released clarifying when the police are prohibited from making an Approved Screening Device (ASD) breathalyzer demand. Police officers in Canada will usually have an ASD with them in their vehicle when they are conducting traffic enforcement or on general duty. If they lawfully stop a motorist, they can make a demand for that driver to blow into the ASD, provided the police meet certain criteria. If the criteria are not met, the demand is unlawful, rights are violated and the police are not allowed to demand a breath test.
The roadside interaction is governed by Charter rights which place limits on what the police can and cannot do when stopping a driver. The only authority that allows them to make an ASD demand comes from the Criminal Code. There are two different ways the police can make an ASD demand. The most common one used in BC is a suspicion demand.
The question of a reasonable suspicion
When a police officer is dealing with a stopped driver and, during the brief interaction, the officer makes observations of evidence that causes the officer to suspect the person has alcohol in their body, the officer has the authority to demand that the person provide a breath sample into an ASD. The demand must be immediately following making the observations that form the opinion, and the sample must be taken immediately, with a permissible delay for operational concerns.
In the recent case of Nguyen v. Superintendent of Motor Vehicles 2023 BCSC 778, the BC Supreme Court considered what evidence could cause an officer to form a reasonable suspicion of alcohol in a driver’s body. This case was a judicial review of a 90-day Immediate Roadside Prohibition (IRP) for alleged refusal to blow. The lawfulness of the demand was a central question. At the hearing, we argued that the officer’s evidence was equivocal and inconsistent.
In one part of his evidence, you might conclude he had made observations that would permit a demand. In another part of the officer’s report, where you would expect that evidence, it was missing.
On top of that, there was the common question of conflicts upon a close read of the officer’s evidence and the evidence of the driver. When it came time for the hearing, Mr. Doroshenko zeroed in on the issue of the opinion. In our view, the adjudicator in the case found there was a reasonable suspicion by selectively cherry-picking from the police evidence without dealing with the evidence as a whole.
The court agreed that the adjudicator failed to properly consider the evidence saying there was evidence material to the findings of fact that the adjudicator failed to assess and as a consequence the pathway to the decision was flawed.
The evidence of Mr. Nguyen regarding the observations the officer may have made was not considered by the adjudicator. Simply put, the officer’s opinion based on the observations may not be truthful, accurate or reliable and the question of whether the officer could reasonably hold the opinion may be impacted by other evidence that had not been considered.
Going forward this case tells us that, in circumstances where the evidence as a whole may undermine the opinion, sufficient credible evidence to the contrary must be advanced. The adjudicator has a duty to consider the evidence and cannot simply gloss over it and prefer the police evidence.
Implementation must be Charter compliant
The second case was from the Supreme Court of Canada and we had been waiting for it for some time. In that case, the police stopped a driver and made an ASD demand but the police didn’t have an ASD with them. The police used their radio to ask another officer to bring one to the scene.
This was a common occurrence, particularly when the officer who conducts the traffic stop isn’t a regular traffic officer. The law was confusing for some because previous court decisions suggested that the police could wait for the arrival of an ASD if it was a short period of time. The court clarified the law.
In the decision, R. v. Breault 2023 SCC 9, the Court explained that the entire ASD legal scheme is predicated on immediacy. If the law permitted a delay, other Charter rights would kick in and the law would be unconstitutional.
In the end, the decision makes clear that the police cannot make a demand if they cannot fulfil their obligation to take the sample immediately. The demand must be made immediately, and the breath sample taken immediately. The only permissible delay is with respect to operational concerns using the device, such as setting it up and turning it on.
When it comes to ASD demand, the police are not allowed to demand a breath test if they can’t facilitate the taking of the test immediately. If the demand is based on a suspicion of alcohol in the driver’s body, the police are not allowed to demand a breath test if they do not have a reasonable suspicion and the reasonableness of the suspicion may be questioned or impeached by contrary evidence.
Two final notes
In BC, most people who are issued a 90-day IRP blew and the ASD registered Fail. In those cases, the Adjudicators may consider the evidence despite a Charter violation, although this is an open question because of a vague decision that partially grapples with Charter violations called Gordon v. Superintendent of Motor Vehicles 2022 BCCA 260.
In the case where the police are issuing an IRP for Fail, the driver has a right to a second test. It is not uncommon for the police to use their radio to ask another officer to bring a second ASD to the scene. In our view, this is lawful because the second test on a different device is a right, not an obligation, and the police take the step of securing a second ASD to facilitate the right. And in any event, the driver is stuck there for a while after blowing Fail the first.
If you receive a DUI of any type in BC, call us. We defend IRPs and criminal impaired driving cases every day arising anywhere in BC. It doesn’t matter where you are – we’ve got you covered. Call now or text us at 604-685-8889.