Henry Waldock
Last updated: 2022-01-19
| Principle |
Principle |
||
| Haste |
Drug and alcohol testing sections require
you to make and execute demands "immediately" or "as soon
as practicable". |
You may only make such demands when you
have reasonable grounds. Courts require full accounting
and documentation to justify the demands that you make.
Gathering grounds and documenting your observations takes
time. |
Accountability |
| Haste |
Detained suspects have the right to get
legal advice "without delay", and must be told so, without
delay. |
Detained suspects have the right to a
reasonable opportunity to get legal advice in private from
such available lawyers as they may choose. This may take
time, especially at difficult times or places. |
Diligence |
| Delay |
You must wait until the suspect exercises or waives this right before eliciting evidence from them. | Proof beyond a reasonable doubt requires
collecting all possible evidence. With impaired drivers,
much of that comes from the suspect. |
Investigation |
| Exception |
At roadside, you may obtain some evidence
from a detained driver, for the purposes of determining
whether to make a breath, blood or DRE demand. |
If you obtain evidence this way, the trial
judge can only use it to determine whether you had grounds
to make a demand. The trial judge can not use this
evidence to prove guilt. |
Exception |
| Liberty | Infringe on the suspect's liberty as little
as necessary. Don't arrest if you don't have a reason.
Release as soon as it is safe to do so. |
Arrests are effective. They control
difficult suspects, empower officers to search for
evidence, and may mitigate future risks. |
Diligence |
| Voluntariness |
Generally, suspects
have the right to silence. Don't compel them to create
evidence against themselves. |
Lawful demands compel suspects to provide
evidence against themselves. Make demands properly,
conduct the tests properly. |
Compulsion |
| A complete investigation should include an
effort to elicit evidence from the suspect. |
Diligence |
||
| Efficiency |
Criminal investigation and prosecution is
expensive. Administrative procedures are cheap. For some
people they are effective. |
Impaired driving kills Canadians. Repeat
offenders and serious cases require full investigation and
prosecution. |
Public safety |
| Complexity |
When handling complicated investigations,
officers who follow the procedure tend to avoid making
mistakes. |
No procedure can cover every case. Officers
who understand and apply the principles do better
investigations than those who merely follow procedure. |
Completeness |
The power to demand that a suspect provide breath or bodily
samples (or comply with sobriety tests) comes with obligations
to:
If a peace officer has reasonable grounds to suspect:
| Field sobriety tests |
320.27(1)(a) |
"the peace officer may, by demand, require
the person ... to immediately perform the
physical coordination tests prescribed by regulation..." |
| Breath screening |
320.27(1)(b) | "the peace officer may, by demand, require the person ... to immediately provide the samples of breath [for analysis by] an approved screening device..." |
| Drug screening |
320.27(1)(c) | "the peace officer may, by demand, require the person ... to immediately provide the samples of a bodily substance that [can be tested by drug screening equipment" |
| Mandatory breath screening |
320.27(2) | [An officer who has an approved screening device in their possesion] may, by demand, require the person who is operating a motor vehicle to immediately provide the samples of breath [for analysis by] an approved screening device..." |
Although the legislation does not explicitly say that the
officer must make the demand right away upon discovering the
grounds for it, the courts interpreted it to include this
requirement. Dewald,
92 CCC (3d) 160 (Ont. CA) affirmed Dewald,
[1996] 1 SCR 6.
Some courts found that unnecessary delay
of just a few minutes rendered the demand unlawful. eg Megahy,
2008 ABCA 207; McCullough,
2007 ABQB 423.
But spending extra time to make sure that
your grounds are solid is okay. Nguyen,
2008 BCSC 1082.
If a peace officer has reasonable grounds to believe
| Breath demand |
320.28(1)(a)
(i) |
"... [driver impaired by alcohol], the
peace officer may, by demand made as soon as
practicable, require the person to
provide, as soon as practicable ... samples of
breath [for analysis]..." |
| Blood demand |
320.28(1)(a)
(ii) |
"[driver impaired by alcohol], the peace officer may, by demand made as soon as practicable, require the person to provide, as soon as practicable ... [if impractable or incapable of getting breath and doctor okays it] samples of blood [for analysis]..." |
| DRE demand |
320.28(2)(a) | "[driver impaired by drugs or drugs and alcohol] the peace officer may, by demand made as soon as practicable, require the person to submit, as soon as practicable [to a DRE exam]. |
| Blood demand (drugs) | 320.28(2)(b) | "[driver impaired by drugs or drugs and alcohol] the peace officer may, by demand made as soon as practicable, require the person to provide, as soon as practicable [to a DRE exam]. |
Delay making this demand renders it unlawful, unless you were
occupied with duties that couldn't wait. Naidu,
2012 BCCA 150. Tending to injured people at the scene is a good
reason to delay the demand. Squires,
2002 CanLII 44982 (ON CA). Waiting for a tow truck to arrive to
move the suspect's car is not. Whitesell,
1998 CanLII 3082 (BC SC).
Take steps to prevent delay in the investigation. Before or while driving to the police station, call ahead to ensure that the breath technician or drug recognition expert will attend promptly. Perhaps the defendant wants to reach a specific lawyer. Ask someone to contact that lawyer before you arrive.
To make a breath, saliva, field sobriety test, drug evaluation or blood demand you need reasonable grounds to suspect or believe:
What you can demand depends upon how strong the evidence is:
For alcohol impairment, to make a blood analysis demand, you
must also believe that the person is "incapable of" giving
breath into an instrument, or it would be "impracticable to" get
the suspect to an instrument.
When you stop a vehicle, you observe the who, what, and
when. But at an accident scene, you must investigate. Try
to get the answers to these questions from all possible sources,
not just the driver, for example
When you have reasonable grounds to suspect that a driver's body contains alcohol or drug, you may:
Although “reasonable suspicion" that a driver contains alcohol
may arise from hearsay, observation, or inference, usually it
comes from smelling liquor on the drivers breath. Many judges
prefer you to isolate that smell from other possible sources.
Removing the driver from the car usually achieves this. Asking
the driver may also achieve this - if the driver accedes.
When you have reasonable grounds to believe that alcohol or a
drug impairs a driver you may:
To make a demand, you don't need complete proof that the driver
is drunk or high, but you need more than a strong odour of
liquor. A smell just means the driver drank; the judge needs to
know why you thought the drinking impaired the driver's ability
to drive.
To survive the cross-examination at trial, you need to be able
to list the information you learned, and articulate why
this information made you think that the preconditions for the
demand were met.
(Your card contains a checklist of the conclusions you must
reach. Try reading it to yourself before reading to the
suspect.)
Screening demands under s.320.27 (breath screening, saliva testing, SFST) are "detentions" for the purpose of s.9 and 10 of the Charter. Ordinarily, the suspect has the right to get legal advice. But the need to perform them quickly at roadside, creates an exception to the right to legal advice. You can use your observations and the results of the test for the purpose of determining whether to make analysis or evaluation demands. This is a narrow exception to the general rule. The prosecutor can't use the evidence prove the suspect's guilt. Orbanski & Elias, 2005 SCC 37. Thomsen, [1988] 1 SCR 640
Demands under s.320.28
(breath testing, blood testing, DRE) do engage the right
to counsel. Section 10
of the Charter requires you to offer access to counsel "without
delay", and deliver it "without delay" if requested.
The trigger occurs at the time of detention. It applies at
roadside.
Tremblay,
2021 QCCA 24 It applies at the hospital. Taylor,
2014 SCC 50. Private access. Playford,
1987 CanLII 125 (ON CA)
After a demand under s.320.28, do not proceed to the testing before checking if the suspect wants legal advice. If the suspect does, ask no questions about the offence. In this context, the suspect may choose from among lawyers who are reasonably available to give legal advice, but may not use the right to counsel to defeat a proper investigation. In the context of declining blood-alcohol levels, the defendant may choose only those lawyers who are reasonably available. Littleford, 2001 CanLII 8559 (ON CA)
A good investigation canvassess all sources of evidence.
Getting evidence from the driver requires special care. The
obligation to hold off eliciting evidence from the suspect
starts when you detain him or her, and ends when the suspect
gets legal advice. Before and after that point,
investigate.
The procedure for testing breath provides only evidence of a blood-alcohol level. Only investigation can discover how that alcohol affected the driver's sobriety. Therefore:
Don't question the driver about the offence before the driver
exercises or waives the right to counsel. But after the driver
addresses legal advice, make a real effort to question the
driver and record his or her intoxication.
I like quantification. Instead of writing “the driver
stumbled", try recording “on the 3rd step toward police car,
driver's right foot moved 18 inches to right". Instead of
writing “unsteady on her feet", try “head rotating clockwise 5
inches diameter". If the driver slurs words, record the
slurring. (“Offisher, I washn't drunking thish evning.")
Is it fair to question an intoxicated driver?
Judges may sometimes take exception to officer who takes unfair
advantage of a drunk to elicit a confession, because the suspect
may not understand what is going on.
But the fact that the suspect was too drunk to understand what
was going on tends to prove he was too drunk to drive a car.
It is not wrong to interview a drunk. Mehan,
2017 BCCA 21 But you must ensure that the subject:
If you don't think your suspect meets this standard,
video-record your efforts to explain them. Playing that video to
the judge will prove intoxication.
Refusal is an offence. The suspect's words and actions are the crime. You are the witness. Document or record as much of this as you can. I like video and audio recordings.
When using a screening device, some officers tell the suspect that the penalties are the same whether the driver refuses or blows a "fail". That's not true. There is no offence of failing a screening device, but in BC, there are administrative consequences for a "fail", just as there are consequences for a refusal.
Police officers used to tell drivers that the penalties for failing the breath analysis are the same as the penalties for refusal. That's not true any more. After December 18, 2018, for first offenders, the fine for refusal is higher than the fine for impaired driving, and depending on whether the Blood-Alcohol Concentration is double the legal or lower, the fine is the same or lower if the suspect blows into the instrument. But the penalties for repeat offenders are the same.
Silence is not a refusal. When the suspect refuses to
speak, or gives ambiguous or contradictory information about
whether he or she will blow, bring the suspect to the instrument
and try to test their breath.
After a screening demand, the suspect has no right to talk to a lawyer unless you must delay to find a screening device.
After a breath analysis demand, the suspect has the right to talk to a lawyer. Don't accept the refusal unless the suspect waives or consults with counsel and still refuses to blow.
Keep trying to get the suspect to comply with the demand until you have enough evidence to convince even a skeptical judge that the suspect unequivocally refused, or willfully failed to comply with the demand. Don't ask yourself the question "Am I convinced that this guy won't do it?" Ask instead "Will the judge be convinced beyond a reasonable doubt that this suspect intended to commit this crime?" When you ask the question that way, you will realize that notes are good, audio-recordings are better, but video-recordings make the best evidence.
... Is about risk that the suspect will pose to the public by
operating the vehicle. Boudreault,
2012 SCC 56 If you find the suspect sitting in the
driver's seat, the court may presume that the driver had care or
control (s.320.35),
unless the driver says he wasn't intending to set the vehicle in
motion. But drunks sometimes change their minds.
Before taking blood, a medical practitioner must be satisfied
that taking a blood sample will not endanger the suspect's
health. You must tell the suspect that no blood sample will be
taken if it would endanger his or her health. You can make a
demand before getting the medical opinion that it would be safe
to take the blood.
A “fail" result on a screen device tells you something about
the drivers blood-alcohol level. The screening device does not
say the driver is drunk. But your training should tell you that
a "fail" occurs when the driver has 100 mg% of alcohol in his or
her blood (or whatever other number your screening device is
calibrated at).
Therefore, a “fail" means you believe the driver is over 80.
Qualified toxicologists told me that a blood-alcohol level of
100mg% or more impairs everyone. If qualified
toxicologists tell you the same thing, then a “fail" gives you
grounds to arrest and detain the driver for impaired
driving. Please note: I am not a qualified toxicologist. Do
not rely on my advice on this point. If toxicologists
have not told you the same thing, then you can arrest or detain
only for operation with 80+mg%.
Unless the driver injured or killed someone, the offence of impaired driving may be prosecuted summarily or by indictment. For such hybrid offences, s.495 of the Criminal Code prevents you from arresting people when all public interest concerns are met. Never arrest unless you have a reason. But in most cases, there will be a reason.
Don't trust a screening device until you know it's calibrated. For that reason, your office procedures should document the results of screening device maintenance.
Recent decisions say defence are entitled to just about all documentation concerning breath testing equipment and the technicians who operate it. Keep clear records and make them available for disclosure.
Peace officers must submit sworn documentation to the Superintendent of Motor Vehicles. Murray v. British Columbia (Superintendent of Motor Vehicles), 2013 BCCA 363
The same principles of investigating drivers you stopped apply to investigating drivers whose vehicles stopped before you got there. The differences are: you start with less evidence about who was driving and when. Injuries often complicate the crime scene and your investigation.
Identifying the driver can be done many ways, but the riskiest
way to gather this evidence is by asking the driver to
incriminate himself. Try to rely on other ways first:
Grounds for a demand may be collected only within the 3 hours following driving. s.320.27 (Curiously, the demand itself may be delivered after this time frame, so long as the officer who makes the demand forms his or her opinion before the 3 hours expired, and makes the demand as soon as practicable.) Deruelle.
There are many ways to determine the recency of driving. Again, asking the suspect is the riskiest because of the right to silence. For example:
Police officers often assume that the time of dispatch determines the time of the accident. This is a mistake. Nobody called 911 until after the accident occurred. Dispatchers then responded after the 911 calls. Unless the 911 callers testify that they called 911 immediately, and the dispatchers testify that they dispatched immediately, the court will near no evidence of the time lapse between accident and dispatch.
At the time of driving, was the driver's ability to drive impaired by drugs or alcohol?
After the crash, the suspect may appear unsteady or dim-witted.
Is it shock, head injury, or booze? A combination of
investigative techniques may shed light on these
questions. For example:
Keep watching the suspect. Changes in symptoms, or the absence of change of symptoms can make a big difference in the case. Saul, 2015 BCCA 149.
When deciding whether to comply with breath or blood demands, the driver should know how much harm was done. Therefore, to the extent that you know whether other people were injured or killed, you must tell the driver before he or she provides bodily samples, and before he or she gets legal advice.
And if you learn that an injured victim succumbed, you should tell the detained driver about the new development, and permit further access to counsel.
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