DUI Lawyers of Impaired Driving Defence Centre Ontario - Produits, offres, nouvelles

On December 18, 2018 the Liberal government amended the criminal code to now allow for two ways for the police to make a valid approved screening device (ASD) demand.  An ASD is the small breathalyzer you may have seen at a RIDE check.

The first way is the traditional method.  If the police have a reasonable suspicion to believe that you have some alcohol in your body and that you have operated a motor vehicle in the prior THREE HOURS (!) they may make a demand that you immediately provide a sample into an approved screening device.  Reasonable suspicion has been found to be a low standard by the Courts who have indicated that the smell of alcohol is enough and that hearsay tips from others are sufficient.  Defences, including the obvious “I drove home sober two hours ago and had a beer in my pool after work” don’t count at the time of the demand.  They are only a defence if you blow over.  This is why I tell people never to answer the door when the police knock if you’ve had anything at all to drink (or in general).

The second method, which is the evil one going around the province right now, is that if you are behind the wheel of a conveyance (car/truck/boat/plane) the police may make a valid demand that you provide a sample immediately.  They do NOT require any sort of grounds to make the demand.

The problem with these cases is that this feels like such an obvious interference in what should be your privacy rights that people are saying no.  The other problem is that you do not have a right to counsel prior to providing the roadside test, unlike the test back at the station.  Saying “I’m not doing it until I talk to my lawyer” is a refusal.  Telling them no is a refusal.  Pretending you can’t is a refusal.  Just wanting to know if you really have to do it or not is not a defence to refusing because you wanted to look it up online or talk to a lawyer.

The penalty for a refusal is an immediate 90 day suspension and 7 day impound of the vehicle in question, regardless of who owns it.  You will be charged with refuse, the penalty for which is a minimum $2000 fine (as if you blew over 160 mg/100mL) and 12 month driving prohibition (subject to the ignition interlock program), plus a criminal record and really high insurance.

Even if you refuse and have a defence, such as being on your own private property, you still get charged, have the 90 day suspension, the impound, and are going to be out of pocket $10 000-$15 000 in legal fees, even if you are acquitted.  In Canada, you don’t get reimbursed for being out of pocket when you are charged and acquitted.

Starting in June, the OPP, now followed by most municipal police forces have started making the mandatory breath demand during ALL police contact stops in a vehicle.  In other words, if you get a ticket, an inspection, a paperwork check, if someone hits you and it’s not your fault, you will be required to provide a breath sample.  If you refuse, you will face charges.

If you need any further advice on this, such as what to do if you have been drinking and you’re at home in your driveway when they approach, please don’t hesitate to contact our office.

Toronto & GTA Call  289.481.1007 - Outside GTA Call  1-877-497-3927