Dear Atty. Rodriguez,
I just want to follow up on your previous topic on drinking and driving. I heard something about the issue of when the cops should ask a driver to blow into a screening device. I heard it should be done immediately. Is this true?
Curious
Dear Curious,
Yes it is true. The police officer should immediately make a demand for the driver to blow into an approved screening device as soon as the officer has reasonable suspicion that there is alcohol in the body of the driver. This is based on s. 254 (2) of the Criminal Code which provides:
(2) Where a peace officer reasonably suspects that a person who is operating a motor vehicle or vessel or operating or assisting in the operation of an aircraft or of railway equipment or who has the care or control of a motor vehicle, vessel or aircraft or of railway equipment, whether it is in motion or not, has alcohol in the person’s body, the peace officer may, by demand made to that person, require the person to provide forthwith such a sample of breath as in the opinion of the peace officer is necessary to enable a proper analysis of the breath to be made by means of an approved screening device and, where necessary, to accompany the peace officer for the purpose of enabling such a sample of breath to be taken.
In R. v. Bernshaw, (1995) the Supreme Court of Canada gave its interpretation of section 254(2) of the Criminal Code. The decision is quite long but I am quoting the part that is easier for the public to understand, to wit:
“Per Lamer C.J. and Cory and Iacobucci JJ.: Drinking and driving leaves a terrible trail of death, injury, heartbreak and destruction. To address this problem, Parliament enacted a two-stage statutory scheme set out in s. 254(2) and (3) of the Criminal Code to provide a means of testing for driver impairment. The first stage sets out a means of screening drivers and is a preliminary investigation aimed at determining whether a driver may constitute a danger to the public because of alcohol in his system. At the second stage, the statutory scheme is aimed at precisely determining the driver’s level of alcohol. It is only at this second stage that it will be ascertained whether the alcohol level is over the prescribed limit, thus constituting a criminal offence. The ALERT testing devices are tools approved for use at the first stage. They provide a means whereby drivers can be quickly screened, and cause far less inconvenience to drivers than would a breathalyzer test.
The ALERT test is to be carried out “forthwith”, which should be interpreted as meaning “immediately”. Section 254(2) does not anticipate, require or include a 15-minute delay to allow residual mouth alcohol to dissipate either prior to making the demand or prior to administering the test. This 15-minute postponement would only be necessary to accommodate drinkers with indigestion or, more frequently, those who see fit to take a drink shortly before driving their car. It is entirely reasonable that the driver who does take a drink in those circumstances should be prepared to accept the consequences. If, as a consequence of taking a drink shortly before driving, there is in fact an unusually high level of residual mouth alcohol, the results of the false ALERT reading will be rectified by the breathalyzer test, which requires a 15-minute observation period before it is performed. The requirement to undergo the ALERT testing immediately should be regarded as one of the obligations that flow from the right to drive. An impaired driver is a potentially lethal hazard that must be detected and removed from the road as quickly as possible. The ability to administer the test immediately helps to protect the public by detecting those who may be a danger. The relatively rare occasions on which an ALERT test may be erroneous as a result of the driver consuming a very recent drink must be tolerated in the interest of the safety of the public.
The flexible approach to s. 254(2), whereby a police officer may postpone the administration of the test for 15 minutes where he or she is of the opinion that a breath sample will be contaminated because of the presence of mouth alcohol, should not be
adopted. The demand for an ALERT test must be made immediately in every situation when a reasonable suspicion of alcohol in the body has been established. The wording of the Code indicates that a 15-minute delay is not contemplated by the two-stage screening and testing procedure set out in s. 254(2) and (3). The whole scheme anticipates a very brief detention and immediate application of the screening test. As well, a delay of 15 minutes might not be justified under s. 1 of the Charter.
Once a police officer has a reasonable suspicion of alcohol in the body, the use of the ALERT test is warranted and the officer may rely on the results of that test in order to make a breathalyzer demand. The mere possibility that the ALERT test might have been inaccurate because of alcohol consumed shortly before driving and within the 15 minutes prior to the test is insufficient to invalidate the reasonableness of the officer’s belief based on the result of the test.”
This is not the full text of the decision but this explains how section 254(2) should be interpreted, and that is, the police officer should administer the approved screening device immediately upon establishing a reasonable suspicion of alcohol in the body of the driver.
Feel free to email your questions to metrodriguez@gmail.com. You may ask your question in either Tagalog or English and I will answer them in the same language you used. Please understand that it is not legal opinion or advice I will be providing. I will just give you information based on what the Criminal Code of Canada and existing jurisprudence may provide, on any issue that may arise out of your questions. Please remember that this column can only provide general information that may not apply to every case. If you need legal advice please contact a lawyer.