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Ontario Mandatory Breath Screening Program


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

DUI Lawyers Ontario Frequently Asked Questions | 1-877-497-3927 / 24 hours

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  • Your legal jeopardy has to be clearly explained to you and, in situations where multiple attempts to provide a sample were made, you must be informed about your “last chance” before being charged.

    Where a motorist is deemed to have “refused” to provide a sample due to various failed attempts the Crown also has to show that the device was in working order.

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  • The real issue in these cases is not whether you are “impaired” in any way but rather whether the Crown can prove beyond a reasonable doubt that your ability to operate a motor vehicle is impaired.

    Sometimes there may be an innocence explanation for irregular driving such as fatigue, illness or distraction. Other times evidence of bad driving might be offset by a review of the police station video which betrays no obvious signs of impairment.

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  • There are multiple and sometimes very technical defences to this charge. Apart from operator error or machine malfunction, which can revealed through a careful analysis of breath device records, these cases are often successfully defended based on investigative lapses or constitutional violations. It is a criminal offence to operate a motor vehicle while your blood alcohol level is over the legal limit of: 80 milligrams of alcohol in 100 millilitres of blood.
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  • Although the law sanctions the arbitrary detention of motorists to conduct sobriety checks you are not obliged to incriminate yourself when questioned about drinking. This is because you are detained and haven’t been provided with your right to counsel. Although any statements you make in such circumstances can’t be used against you at trial that’s cold comfort at the roadside because an admission of consumption is admissible for the purposes of an officer’s grounds to make a demand for a roadside breath demand. That demand as well as the test must both be done promptly however to withstand constitutional scrutiny.
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  • The “free ride” for those driving while under the influence of drugs is now also over. Currently the police have the power to demand a suspect accompany them to the station for a drug evaluation test where they suspect impairment by drugs. Legislation is now also in the works to implement roadside technology to test for drug impairment that would be a similar tool to a breathalyzer, which measures blood alcohol levels. The obvious defence in these cases is whether the officer conducted such tests properly and whether he is properly qualified to render an expert opinion on sobriety
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  • You had a few drinks, thought you were OK to drive but then you realize that you need to wait a bit before driving, you thought you were doing the right thing?

    You don’t actually have to be driving a motor vehicle to be charged with “DUI”.

    You can be arrested simply if you are behind the wheel of a parked car but the Crown will have to show that the vehicle was operable and that there was a real risk of danger that you would set the vehicle in motion.

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  • If you are convicted of drinking and driving, your fingerprints and photographs will be retained by the RCMP in Ottawa.

    A conviction also means you will have a criminal record which will show up when police run a check and that can hurt your employment opportunities as well as your travel plans.

    Sometimes travelers are stopped at the border due to an old conviction. They are stunned to discover that they need to apply for permission to cross.

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  • Recent Successes At the Impaired Driving Defence Centre, Christopher A. Avery takes your privacy very seriously. He also understands the curiosity of potential clients regarding our track record. For these reasons we have changed identifying details of the below cases in order to protect our clients’ privacy. We do not post the reported decisions of our clients’ cases as they are findable on a google search by name if I reproduce them here.

    View Our Winning record

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  • When it comes to immigration, criminal records can make a huge difference on your ability to remain in the country or your ability to travel to another country in the first place. Sometimes travelers are stopped at the border due to an old conviction. They are stunned to discover that they need to apply for permission to cross due.....
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