The new federal impaired driving legislation has left a portion of the public confused when it comes to breathalyzer tests and their rights.
Prior to this legislation, RCMP had to have “reasonable suspicion” that a driver has consumed alcohol in order to administer a breathalyzer test. Going forward, this will no longer be required.
“(Before this legislation) we would need some kind of suspicion, they term it as, that the driver has consumed alcohol within the preceding three hours let’s say,” said Penticton RCMP Const. James Grandy. “That would either be an admission where we ask if they had anything to drink today, and the person says, ‘Oh I had a glass of wine an hour ago’ and OK that’s a suspicion that you might be intoxicated or impaired. This gives us the authority to demand that they provide a breath sample.
“Another suspicion would be if we can smell alcohol coming from the person’s breath or maybe their driving is consistent with some of the signs of impaired driving. Maybe someone says, ‘Oh I saw that person drink a lot and they just got into their vehicle 10 minutes ago.’ Well, that’s suspicion.”
This change has led to many questioning under what circumstances they could be forced to adhere to a breathalyzer test. Many worried that police now have the authority to show up at your door or a public place and demand a breathalyzer test because someone may have reported a drunk driver.
“Say someone reports a drunk driver, they give us the licence plate and say, ‘I saw them drinking a lot and then they drove home and swerving around.’ and they went to an address and went inside their house,” said Grandy. “If we arrive 20 minutes later, 10 minutes later or even five minutes later for that matter, we can’t demand that the person provide a breath sample. Because they are no longer in their vehicle and the time has passed because they were in their house. That doesn’t apply.”
Grandy said this is because they no longer can prove “continuity of the person and what they’ve done in the interim” of events — was the person intoxicated behind the wheel or did they get home and then start drinking an alcoholic beverage? Furthermore, this legislation is in relation to impaired driving so police have to be able to prove the person was operating a motor vehicle while impaired, which means they must catch the driver committing the offence.
“(What this legislation really means) is that if someone is at a road block and they say ‘No, I haven’t drank anything.’ we can still demand that they submit a breath sample regardless, whether we have any suspicion. That’s the only thing that’s changed,” said Grandy. “Officers can now do this, just to make sure. But I don’t think we’re going to see a huge increase of police officers pulling people over and demanding breath samples.”
“It is a very strange thing that they have made,” Sarah Leamon, a defence lawyer specializing in impaired driving cases, told Black Press staff regarding the federal government’s new impaired driving legislation – namely Section 253 of the Criminal Code.
“There’s lots of lawyers who are making lots of noise about this being an issue, in that we might be able to see police kind-of follow people into their homes or into a bar and pull them out.”
“Basically, the change now just says you can’t be over 80 milligrams per cent within two hours of driving,” Leamon said. “Now, I think that that’s improperly worded in the Criminal Code. I think it’s going to be a very, very big misstep in terms of how the legislation is worded. I don’t think it was the legislative intention for people to have to abstain from consuming alcohol two hours after they’ve ceased driving.”
Grandy summarized that this change “allows officers an extra level of confidence to allow a person to drive away.” When asked about the chances of a police officer arriving at your door with a breathalyzer, Grandy said “that will never happen (because) this new legislation doesn’t say anything about that.”
“The most that would happen (if we show up at your door) is we would show up and speak with you about driving impaired and why you shouldn’t be doing that. It’s more that kind of thing — but we can’t charge them at that point,” said Grandy. “If we see them still in their vehicle or pulling into their driveway, that’s different.”
While Grandy did not have the numbers yet for impaired drivers charged in the area for January, he stated that they don’t anticipate an increase from prior months.
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