When a breath sample is demanded the roadside breath testing machine is used by the officer who pulled you over or stopped you at a RIDE spotcheck. This portable, hand-held machine is called an “Approved Screening Device. It is used to determine your approximate blood alcohol level, but it is less accurate than the machines kept in police stations. You may be told to blow in to this machine to tests your breath for alcohol or perform physical co-ordination tests. If you fail or refuse to provide a breath sample or to perform the physical co-ordination tests, you will be charged under the Criminal Code.
Not providing sufficient samples of breath for the required duration, playing with/removing the mouthpiece from the machine, not blowing properly and not complying with instructions would lead to the Failure to provide a breath sample. If the person has a phobia or a medical reason for not providing a breath sample he must inform the testing officer so an alternative sample can be collected. Refusing to provide a blood or urine sample could lead to the offence. Claiming to have complied by taking the roadside breath test could lead to the offence since this has been held to be a preliminary test only.
(3.3) If the evaluating officer has reasonable grounds to suspect that the person has alcohol in their body and if a demand was not made under paragraph (2)(b) or subsection (3), the evaluating officer may, by demand made as soon as practicable, require the person to provide, as soon as practicable, a sample of breath that, in the evaluating officer's opinion, will enable a proper analysis to be made by means of an approved instrument.
Samples of bodily substances
(3.4) If, on completion of the evaluation, the evaluating officer has reasonable grounds to believe, based on the evaluation, that the person’s ability to operate a motor vehicle, a vessel, an aircraft or railway equipment is impaired by a drug or by a combination of alcohol and a drug, the evaluating officer may, by demand made as soon as practicable, require the person to provide, as soon as practicable,
(a) a sample of either oral fluid or urine that, in the evaluating officer’s opinion, will enable a proper analysis to be made to determine whether the person has a drug in their body; or
(b) samples of blood that, in the opinion of the qualified medical practitioner or qualified technician taking the samples, will enable a proper analysis to be made to determine whether the person has a drug in their body.
(4) Samples of blood may be taken from a person under subsection (3) or (3.4) only by or under the direction of a qualified medical practitioner who is satisfied that taking the samples would not endanger the person's life or health.
Failure or refusal to comply with demand
(5) Everyone commits an offence who, without reasonable excuse, fails or refuses to comply with a demand made under this section.
Blowing over 80 is the most common drinking and driving Charge that is defended in the courts. In Ontario, operating an automobile, boat, snowmobile or motorcycle - motorized vehicle with an alcohol level that exceeds 80 milligrams of alcohol per 100 millilitres of blood is over the legal limit.
It is a scarey situation, you have never broke the law before. You felt fine, you weren't drunk but you blew over 80 at a RIDE Spotcheck or a traffic stop. Does this mean you are guilty?! Until the evidence is seen by a DUI specialist only then can your options be presented to you. How much will this cost? Again, you need to sit down with a lawyer to understand the complexities of your case. Contact us today for a free case evaluation.
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