When a driver is pulled over by law enforcement and confronted with a demand to provide a breath sample, the situation can be confusing. Many drivers are uncertain about their rights and obligations under such circumstances. This uncertainty often stems from misconceptions about the law or concerns about self-incrimination. To navigate this issue effectively, it is essential to understand the legislative framework governing breath sample demands, as codified in the Criminal Code of Canada, and the potential consequences of non-compliance.
Legislative Framework: Mandatory Alcohol Screening and Reasonable Suspicion
1. Mandatory Alcohol Screening
In 2018, Parliament amended the Criminal Code to introduce mandatory alcohol screening (MAS) under section 320.27(2). This provision allows a police officer to demand a breath sample from any driver they lawfully stop, provided the officer has an approved screening device (ASD) readily available. Notably, MAS does not require the officer to have reasonable grounds to suspect that the driver has alcohol in their body.
The Supreme Court of Canada has upheld the constitutionality of MAS, emphasizing its role in reducing impaired driving fatalities. However, the availability of the ASD is a prerequisite. While the device need not be physically on the officer’s person, it must be accessible within a reasonable timeframe, such as being located in the officer’s vehicle.
2. Reasonable Suspicion
Prior to the introduction of MAS, the Criminal Code required officers to establish “reasonable suspicion” that a driver had alcohol in their body before making a breath demand. Although MAS has largely supplanted this regime, the reasonable suspicion standard remains relevant in certain scenarios, such as when an ASD is not immediately available.
Reasonable suspicion may arise from objective indicia of impairment, including but not limited to:
- Erratic driving patterns;
- The odor of alcohol emanating from the driver or vehicle;
- Bloodshot or glassy eyes;
- Slurred speech;
- Admissions of alcohol consumption; or
- Observable signs of poor coordination.
Reasonable suspicion is a low threshold. It requires a credible basis for belief; it does not require proof beyond a reasonable doubt.
Refusal to Provide a Breath Sample: Legal Implications
1. Types of Refusal
The Criminal Code recognizes two forms of refusal to comply with a breath demand:
a) Unequivocal Refusal
An unequivocal refusal occurs when a driver explicitly communicates their unwillingness to provide a breath sample. Examples include statements such as:
- “I refuse”;
- “No, I will not blow”; or
- “I am not going to comply.”
Such refusals are straightforward and leave little room for interpretation.
b) Constructive Refusal
A constructive refusal arises when a driver’s actions or words suggest an intention to avoid compliance. For instance:
- Repeatedly delaying the process despite clear instructions;
- Failing to follow proper procedures for using the ASD, such as loosening lips around the mouthpiece; or
- Providing insufficient airflow after multiple attempts.
Courts have consistently held that constructive refusals constitute non-compliance under the Criminal Code. The burden is on the Crown to demonstrate that the driver’s conduct amounted to a refusal.
Practical Guidance: Should You Provide a Breath Sample?
Drivers are legally obligated to comply with valid demands, and non-compliance is a criminal offence that carries substantial consequences. Challenging the validity of a demand requires specialized legal knowledge and expertise.
Conclusion
Given the complexity of these issues, it is helpful to consult with a qualified legal professional who can assess the specific facts of your case. At Filkow Law, our team of experienced criminal defense lawyers is well-versed in the intricacies of impaired driving law and can provide tailored advice to protect your rights and interests.
