When can the Police Demand a Roadside Breath Test?

The simple answer is that a police officer only needs to form a reasonable suspicion that you have recently consumed alcohol to demand that you provide a breath sample. The specific section of the Criminal Code of Canada that deals with providing a breath sample is section 254.

Pursuant to section 254(2)(b) of the Criminal Code of Canada;

If a peace officer has reasonable grounds to suspect that a person has alcohol or a drug in their body and that the person has, within the preceding 3 hours, operated a motor vehicle … the peace officer may, by demand, require the person …

(b) to provide forthwith a sample of breath that, in the peace officer’s opinion, will enable a proper analysis to be made by means of an approved screening device and, if necessary, to accompany the peace officer for that purpose.

What is Proof of Reasonable Suspicion?

Reasonable suspicion is usually formed by the police officer’s own personal knowledge and observations of the person whom he or she is requesting to provide a roadside breath test. However, reasonable suspicion can also be achieved through  the observations of independent witnesses. For example, some citizens will call the police where they observe a person operating a motor vehicle erratically or whom they believe to be impaired.

In circumstances where knowledge or observations of drinking and driving is not directly observed by the police officer but rather is communicated by an independent witness, the police officer will usually independently investigate and verify the reasonable grounds for suspicion which were conveyed to the officer. However, an independent investigation and verification are not always required, so long as the police officer subjectively believes the grounds for reasonable suspicion conveyed to him or her by the independent witness.

A police officer does not need to have reasonable suspicion that you are over the permitted legal limit of alcohol, and therefore that you have been operating a motor vehicle while impaired. The test is merely that the police officer has reasonable suspicion that you have consumed any alcohol within the preceding 3 hours.

Examples of Reasonable Suspicion

An example of reasonable suspicion is when a police officer smells alcohol on you. Whether a police officer has stopped you during a routine traffic stop or you are going through a R.I.D.E. program, if the police officer smells alcohol on you personally, he or she may request that you provide a roadside breath test.

If you have been observed driving erratically by a police officer or a third party, a police officer may request that you provide a roadside breath test.

If you are observed leaving a restaurant/bar and entering your vehicle, a police officer may request that you provide a roadside breath test. It is not uncommon for police officers to be stationed in parking lots at particular times of the day observing individuals exiting a restaurant or bar. This can be a common occurrence where there are several restaurants or bars located within a particular parking lot.

If open alcohol or empty alcohol bottles are observed in your vehicle during a routine traffic stop, a police officer may request you provide a roadside breath test.

Providing a Sample Forthwith

One of the necessary elements for a valid demand for a roadside breath test is that a breath sample be able to be provided forthwith. Forthwith has been defined as ‘immediate or without delay’. If a police officer makes a demand for a breath sample and does not have access to an approved screening device within a reasonably short period of time, then the demand for the sample is invalid. While the officer who makes the demand does not have to be in possession of an approved screening device, the device must be made available by another officer within a relatively short period of time. There is no set period of time in which a sample must be provided once a demand has been made. Each case will be decided on its own set of facts. However in circumstances where the time between the demand and when a sample is taken is more than 30 minutes, then it is more likely that the demand will be invalid.

Contact Me

The implications for a conviction for refusing to provide a sample can be as bad as the implications for impaired driving. There may be one or more defences available to you if you have been charged with refusing to provide a sample.

Contact me today if you have been charged with refusing to provide a sample.

You can also read my article on the personal and financial consequences of impaired driving.

A conviction for impaired driving or over 80 is not reserved for circumstances involving motor vehicles. A person can receive a conviction for impaired driving or over 80 if he or she operates, or is in care and control of any boating vessel, aircraft or railway equipment. Given the vast number of lakes located not far from the Greater Toronto Area, it is not surprising that there is an increase in the number of cases involving drinking and boating during the summer months. With the upcoming Canada Day holiday, some of you may be on your way to a cottage, fishing, or simply enjoying some time on the water. It is important that you stay safe if you are going to be on the water and that you understand the implications of drinking and boating.

Drinking and Boating is the same as Drinking and Driving

It may come as a surprise to some of you that, if you are convicted of impaired operation of a boating vessel your Ontario driver’s licence will be suspended, just as if your driver’s licence would be suspended if you had been convicted of impaired operation of a motor vehicle.

For greater certainty, a vessel is not limited to boats. Drinking and boating can involve all forms of vessels including; a sea-doo, kayak, canoe, sailboat, and inflatable rafts. The specific definition of a vessel can be found in section 214 of the Criminal Code of Canada.

You should also be aware that a boat engine does need to be running in order to be convicted of drinking and boating. Impaired operation of a vessel can include circumstances where the boat is simply drifting and the engine is turned off.

Penalties for Drinking and Boating

If you are charged with impaired operation of a boating vessel, your Ontario driver’s licence will automatically be suspended for a period of 90 days. If you are convicted for impaired operation of a vessel, there is a mandatory minimum one-year driver’s licence suspension for a first offence pursuant to the Ontario Highway Traffic Act. For a first conviction involving drinking and boating, there is also a mandatory minimum $1,000 fine pursuant to the Criminal Code.

A conviction relating to drinking and boating will also require that you install an Ignition Interlock device in your motor vehicle, or you must wait the appropriate period of time (2 years) before you can drive without an interlock device. You will also have to take the Back on Track course which costs more than $600. When you are eligible to have your driver’s licence reinstated, you will be required to pay $150 administrative fee. You should also expect your insurance costs to be double or triple what they were prior to you being charged with drinking and boating.

What if I’m in the Warning Range 0.05-0.08 Blood/Alcohol Concentration?

The first time you are caught drinking and boating and are in the warning range, your driver’s licence will be suspended for 3 days and you will have to pay the $150 administrative fee in order to get your driver’s licence reinstated. A second reading in the warning range will result in an automatic 7-day licence suspension and you will be required to complete the Back on Track course. After 3 positive readings in the warning range, your licence will be suspended for 30 days and you will have a 6-month Interlock condition on your licence. For more information on the penalties for positive readings in the warning range, see the Ministry of Transportation website at;

http://www.mto.gov.on.ca/english/safety/impaired/fact-sheet.shtml#adls

 Ontario Liquor Licence Act

Section 31(2) of the Ontario Liquor Licence Act states;

No person shall have or consume liquor in any place other than;

a)      a residence

b)      premises in respect of which a licence or permit is issued, or

c)       a private place as defined in the regulations

A recreational boat is considered a private place only when it is anchored or secured to a dock or land and it is equipped with permanent sleeping accommodations and cooking and sanitary facilities. When transporting any alcohol on a boat, it must be stowed or sealed in a closed container.

Contact Me

The potential penalties for drinking and boating can be significant. Contact me today if you have been charged with impaired operation of a vessel.

You can also read about the implications of a conviction for impaired driving.

How do I get my Driver’s Licence Reinstated if I’ve been Convicted for Drinking and Driving?

If you have been convicted of either Impaired Driving or Over 80 under the Criminal Code of Canada, getting your driver’s licence reinstated can be a confusing process. The fact that you are convicted of an offence under the Criminal Code and yet your driver’s licence is suspended pursuant to the Ontario Highway Traffic Act can create further confusion for the average person who is unfamiliar with our legal system.

Do I have to Drive with an Ignition Interlock device if I was Convicted of Drinking and Driving?

To avoid any confusion, if you have been convicted of either Impaired Driving or Over 80, you do not have to participate in Ontario’s Ignition Interlock Program to get your driver’s licence reinstated. However, you should know that while it is not mandatory that you participate in the Interlock program, one component that is mandatory is the Back on Track program. This program costs about $600, and if you do not complete the Back on Track program before your licence suspension has ended you will be subject to a further licence suspension under the Highway Traffic Act.

How long will my Driver’s Licence be Suspended if I am Convicted of Drinking and Driving?

A criminal conviction for Impaired Driving or Over 80 carries a penalty 1-year driver’s licence suspension under the Ontario Highway Traffic Act. This 1-year licence suspension is in addition to the mandatory minimum fine of $1,000 under the Criminal Code.

How soon can I get my Driver’s Licence Reinstated?

Where you have been convicted for drinking and driving and your licence has been suspended for a period of 1 year, there are a couple options available to you.

1. You may qualify for a reduction to the 1-year licence suspension pursuant to s. 41(4.1) of the Highway Traffic Act. In these circumstances your driver’s licence will be reinstated and you must install an Ignition Interlock device in your vehicle for a period of 1 year.
2. Where you do not qualify for a reduction to your licence suspension, you must wait the full year before you can apply to have your driver’s licence reinstated.

In an effort to provide a reduced suspension period for some first-time offenders, the Government of Ontario introduced the Ontario Ignition Interlock program. Sections 41, 41.1 and 41.2 of the Ontario Highway Traffic Act all deal with driver’s licence suspensions, reinstatement of a driver’s licence, and the Ignition Interlock Program.

Once your driver’s licence has been reinstated, whether that be after a 1-year suspension or by a reduced suspension, you will have a condition on your licence that requires an Ignition Interlock device be installed in any vehicle you drive. The letter “I” will appear under the Conditions section of your driver’s licence. If you do not qualify for a reduced suspension period and you choose not to install an Ignition Interlock device after your 1-year suspension, you will not be eligible to drive for the 1-year period that the Interlock condition is placed on your licence. You must apply to have the condition removed from your driver’s licence after 1-year, the condition will not be automatically removed.

For those individuals who cannot afford to install the Ignition Interlock device, they are essentially prohibited from driving for at least 2 years, notwithstanding that the upon being convicted of drinking and driving the penalty is a 1-year licence suspension.

Example

If you were convicted of impaired driving on April 1, 2014, you may qualify for a reduced suspension period under s. 41(4.1) and get your licence reinstated as early as July 1, 2014. If you got a reduced suspension period and got your licence reinstated on July 1, 2014, you would then be required to install an Interlock device for a period of 9 months.

If you were convicted of impaired driving on April 1, and you did not qualify for a reduced suspension period, your licence would be suspended until April 1, 2015. Once your licence suspension is complete you will have the Interlock condition on your licence for a period of 1 year. From April 1 2015 to March 1 2016 you would have to drive a car equipped with an Ignition Interlock device.

If you were convicted of impaired driving on April 1, 2014 and you did not qualify for a reduced suspension and you did not wish to install an Ignition Interlock device, then your licence would be suspended for 1 year and you could not drive for an addition year while the Interlock condition is on your licence. Thus, you would not be able to drive until at least April 1, 2016.

Contact

Drinking and driving is a criminal offence, and it is one that our criminal justice system takes very seriously. If you have been charged with Impaired Driving contact me today.

Read more about the implications of a conviction for impaired driving.

Click the links for more information on Impaired Driving/Over and Refusing to Provide a Sample.

Here is a link to the Government of Ontario for more information on the Ignition Interlock Program.

The R.I.D.E. program is a great initiative aimed at reducing the number people drinking and driving on our roads. It is a program that I would like to see used more frequently throughout the year. I also appreciate of the job our police officers do by running the R.I.D.E. program, particularly when they are outside on those cold nights. However, I was surprised and disappointed to learn that the Durham Police post names of people charged with impaired driving after being stopped by a R.I.D.E. program. The purpose of releasing the names of individuals charged with impaired driving is to deter other people from making the same decision to drink and drive.

The Concerns of Publishing Names of Individuals Charged with Impaired Driving

Would it not be more appropriate for the police to wait until a person has been found guilty before their name is posted? This approach certainly would be more consistent with the spirit of the provision in our Charter of Rights and Freedoms that a person is presumed innocent until proven guilty. If we want to shame people who commit criminal offences, should we not wait until they have  their day in court?

If you were found not guilty or if the charges against you were withdrawn but your name has already been posted as someone charged with impaired driving, it is sort of like ‘that’s great I wasn’t convicted, but my name has already been run through the mud.’ In the interest of fairness, I wonder whether the Durham Regional Police would also be willing to publish the names of individuals who have are found not guilty?

How is it fair to publish only the names of those people charged with drinking and driving resulting from the R.I.D.E. program? You would think that in order to be fair, the Durham Police would publish the name of every single person charged with impaired driving. If publishing the names of those people charged with drinking and driving is such an effective deterrent, then you would think that the name  of every person who is charged with drinking and driving would be posted. Also, if this practice is effective then why has Durham Regional Police not adopted this practice for the entire year?

Publishing Names as a Method of Deterring Others from Drinking and Driving

The purpose of posting the names of individuals charged with drinking and driving as a result of the R.I.D.E. program is to deter others from drinking and driving. Sergeant Nancy van Rooy of the Durham Regional Police has been quoted as stating “We believe it is a good, sound deterrent that gets results.” However, I fail to understand how publically shaming individuals charged with impaired driving is an effective deterrent for others. Also, I have yet to see this approach achieve any meaningful results.

First, is it really reasonable to expect that a person who has consumed enough alcohol to be over the legal limit is someone who is likely to be thinking about their name being published for impaired driving prior to getting behind the wheel of a motor vehicle? Keep in mind that we are talking about impaired driving; which one of the underlying presumptions is that an individual who is impaired by alcohol or drugs has a diminished ability to make responsible decisions. So for the person who is already impaired, I cannot understand how publishing the names of people who have been charged with impaired driving will somehow be an effective deterrent for that person who is already impaired and whose decision making ability is diminished.

For those individuals who have not yet gone out  for the evening and are deciding whether to drive or to arrange for alternate transportation, do you really think that the first thing on their mind is that they do not want their name posted on the Durham Regional Police website? Does it not seem more likely that a responsible person may be thinking about; (1) how to get home safely, (2) that they do not want to risk getting into an accident or injuring anyone else, (3) that they do not want run the risk of being charged with a criminal offence or (4) that they do not want to run the risk of their licence being suspended.

One of the principles of sentencing in our Criminal Code is deterrence. We often use short jail sentences as a method of deterring others from committing similar crimes, yet people continue to commit criminal offences every day. There are other countries that continue to enforce the death penalty as a method of deterring others from committing horrific crimes, yet these crimes still occur on regular basis. If jail sentences and the death sentence are not working effectively to deter individuals from committing criminal offences, I fail to see how publically shaming others will achieve any better results.

I agree that we need to make our best efforts to reduce drinking and driving and deter others from doing so. However, we should be looking at what are realistic, effective approaches to deterring drinking and driving. We need to educate the public about what happens if you are charged with impaired driving. The public needs to know;

• There is an automatic 90-day licence suspension under the Highway Traffic Act.
• The inconvenience of having to attend court and that it could cost you thousands of dollars to hire a criminal defence lawyer.
• The process of getting your licence back. The Back on Track course costs about $600. There are also the costs and inconvenience of driving with an Ignition Interlock device.
• Your insurance rates will double or triple if you are convicted for impaired driving.
• How individuals who are the victims of impaired drivers have been effected.
• How the lives of others are ruined from a collision caused by an impaired driver.
• You could be held civilly liable for any injuries you caused resulting from drinking and driving.

Do any of the above financial costs or personal inconveniences concern you? What about the lives that are ruined as a result of drinking and driving? Or are you more concerned about your name appearing on the Durham Regional Police website?

Contact Me

If you have been charged with impaired driving, Over 80 or failing to provide a sample, contact me immediately.

For more information on the implications of a conviction for impaired driving click here.

For more coverage see Global News or the Toronto Sun.

Impaired driving, or what is more commonly referred to as drinking and driving, is a very serious criminal offence that, if convicted, has significant legal, personal, and financial consequences. If you have been charged with impaired driving or over 80, it is important you contact a lawyer as soon as possible.

When we think of drinking and driving, we think of a car swerving in and out of lanes, crashing into a tree, a pole, or even worse, another vehicle or pedestrian. At some point along the way most of us have been educated on the dangers of drinking and driving, and we have all heard the message, if you drink don’t drive. However, from the standpoint of a criminal defence lawyer, this message is incomplete. The message should be; if you drink, don’t drive, don’t get in the driver’s seat, don’t start the car, don’t be in possession of the keys, and just to be safe don’t even get into the car even if you’re just going to sleep it off. The reason is that the offence of impaired driving includes circumstances where you are not driving, but you are still in care and control of your motor vehicle. The term care and control has been litigated over for many years and has been before the Supreme Court of Canada on more than one occasion.

The next time you are going to a bar, to a party at a friend’s house or even work function, consider the following. Impaired operation of a motor vehicle is not limited to circumstances where you are driving your car. Your motor vehicle need not be in motion for you to be convicted of impaired driving. In fact, it is not even necessary that your engine is turned on or that your car keys are in even in the ignition.

There are some individuals who do not wish to drink and drive and think that they are being responsible and exercising good judgement by choosing not to get behind the wheel but rather to sleep in their car or wait a period of time in their vehicle until they feel sober enough to drive. However, in choosing to do so, you may be putting yourself in a situation where you are in care and control of your motor vehicle, which could result in you being charged and convicted for impaired driving.

The Crown Attorney does not need to prove you intended to drive your motor vehicle to establish that you are in care and control the vehicle. The Crown Attorney can prove you were in care and control of your motor vehicle by establishing you did some act, or series of acts, which could cause you to unintentionally set your vehicle in motion and thereby create a danger to the public. In fact, the Crown Attorney does not need to establish that there was an overt or intentional act on your part, only that there was some act or series of acts that could have caused your car to be put into motion and thereby putting the public in danger. However, what the Crown Attorney must prove is that your act or series of actions did create a reasonable immediate or potential risk or harm, or that it did create a risk to the public.

Courts throughout our country have held that a person who has fallen asleep in the front driver’s seat of a motor vehicle while the vehicle remains in the park position has created a risk of setting the vehicle in motion and thereby created a risk to the public. Our Ontario Court of Appeal held many years ago that even a person who had fallen asleep in the driver’s seat and where the keys to the motor vehicle were on the floor, that person was still considered to be in care and control of the vehicle.

Next time you think about sleeping it off in your car or even think about getting behind the wheel, remember the penalties that carry with a conviction for drinking and driving. Specifically, there is a mandatory minimum $1,000 fine for first conviction under the Criminal Code as well as a minimum 1-year licence suspension under the Highway Traffic Act.  A second conviction carries a minimum jail term of 30 days and each subsequent offence a minimum jail term of 120 days. A second offence for drinking and driving also carries a 3-year licence suspension under the Highway Traffic Act and a lifetime licence suspension for a third conviction.

I practice criminal law here in Toronto, but I am prepared to represent you on an impaired driving charge anywhere in the surrounding jurisdictions, including Burlington, Milton, Brampton, Newmarket, Barrie and Oshawa. If you have any questions about impaired driving, what it means to be in care and control of a motor vehicle or if you have been charged with any other criminal offence, contact me today.

Follow the links for more on impaired driving and refusing to provide a breathe sample.

An Ontario driver’s licence is a privilege, not a right. The penalties for abusing this privilege can be severe and long-lasting, particularly with respect to the financial implications that follow a conviction. I’m not referring to minimum $1,000 fine that carries with a conviction for impaired driving or over 80, although that is a significant financial penalty for many people. When you understand the implications that come with a conviction for impaired driving, over 80, or refusing to provide a sample, you’ll wonder why anyone would ever consider drinking and driving.

One of the more obvious financial expenses resulting from a conviction for impaired driving or over 80 is the increase cost associated with being insured. If and when you do get your licence back, you can expect that the cost for car insurance will be at least double or triple what you were paying prior to being convicted. As someone who not only practices criminal law here in Toronto but also lives in the city, I know all too well that it is expensive to be insured, even with a clean driver record.

If your employment requires that you drive a motor vehicle or if you need a motor vehicle to get to and from work, you may be putting your current employment in jeopardy. If you are charged with either impaired driving or over 80, your licence is automatically suspended for a period of 30 days. If your current job requires that you drive a vehicle, imagine trying to explain to your employer that you will not be able to work for the next month. If that’s not bad enough, try to imagine telling your employer you may not be able to work for the next year, because a conviction for impaired driving or over 80 carries a penalty of a 1-year driver’s licence suspension for a first offence. A second offence within a 10-year period of a first offence carries a penalty of a 3-year licence suspension, while a third offence results can result in a lifetime licence suspension.

The implications resulting from a conviction of impaired driving can be severe, even for a first time offence. It is for this reason that the Ontario Government introduced Ontario’s Ignition Interlock program in 2010. If you meet the requirements to qualify for the Interlock program, you may be eligible to have your licence reinstated as early as 3 months after your conviction date. However, that’s only if you enter a guilty plea within 90 days of being charged with drinking and driving. If you fail to enter a plea in that timeframe you are only eligible to have your licence reinstated 6 months after your date of conviction. Although this 90-day period creates circumstances where a person may feel pressured to enter a guilty plea, there is an added benefit to entering a guilty plea at an early date. Upon being charged with impaired driving, over 80 or refusing to provide a sample, your licence is automatically suspended for 30 days. If you enter a guilty plea during this 30-day period, you begin serving your sentence concurrently with the 30-day suspension. If you have been charged with impaired driving, over 80 or failing to provide a breathe sample, do not delay, contact me as soon as possible so that I can review your case.

If you do qualify for the Ignition Interlock program, the financial consequences of getting your licence back are again severe. First, you must take the Back on Track program which is intended to educate people on the dangers of drinking and driving. The Back on Track program costs approximately $600 and you should register for the program immediately after receiving a conviction for either impaired driving or over 80 as the program can take several months to complete. The program has two main components, the educational part which is 8 hours in length, and the treatment part which is 16 hours long. You should also be aware that the program is only available for alcohol related offences. Where a person is convicted of impaired driving involving drugs or a combination of alcohol and drugs, that person will not be qualify for the program.

Installing the Interlock device creates an additional expense, as you can probably expect to pay anywhere from $100 to $150 to have the device installed in your car. In addition, you have to pay a monthly fee to rent the Interlock device, which can also be between $100 and $200 a month. Don’t forget the fee to have the device removed from your vehicle once you are no longer required to drive with the device. The is also the personal inconvenience of driving with the device installed in your car, or better yet, the inconvenience of anyone else having to drive your car. The machine will also periodically require that you blow into device, which can become rather inconvenient when you are driving longer distances or if you are on a major highway and have to pull over.

When you add up all the expenses, drinking and driving can be a costly decision, particularly for the otherwise law abiding citizen who unfortunately exercises poor judgement. In addition to these expenses, there is the further expense a person will incur by hiring a criminal lawyer. Notwithstanding that hiring a lawyer can be a considerable expense, a competent lawyer is essential to ensuring you receive the best possible result and get your licence back as soon as possible.

Given the significant personal and financial implications that are associated with a conviction resulting from drinking and driving, it makes you think whether consequences of a conviction for impaired driving create circumstances where a punishment is too harsh. For example, take the scenario of the average parent of two children, who earns an average income, has never had any contact with the law, and is charged with impaired driving after attending a social or work related event. The implications of a conviction for impaired driving will certainly impact not only that individual, but the family as a whole. However, drinking and driving threatens the lives of all other motorist on the road, and this is a danger that cannot be overlooked. So although the personal and financial consequences may seem to be particular harsh for some offenders, even one life lost to drinking and driving reminds us that these offences cannot be treated lightly.

If you are charged with impaired driving, over 80, or failing to provide a breathe sample, you should seriously consider contacting a lawyer today.

Follow the links for more information on impaired driving and refusing to provide a breathe sample.