Drinking and driving is taken very seriously in Canada. The focus of this blog is to explain your rights when officers ask you for a breath sample in their effort to determine whether you have been drinking and driving.
Blood Alcohol Concentration Test by the Police
The police can demand that you take a roadside breath test if you are driving a motor vehicle. They do not need a reason to ask you to take a breath test. In such a scenario, you do not have the right to refuse a breath test. You can refuse, however, you will be charged with a criminal offence, specifically, with refusing to comply with a police demand. A court will decide whether you had a reasonable excuse for refusing. Keep in mind it is hard to show a reasonable excuse, but if you believe you have one, a criminal defence lawyer can assist you with advancing your argument in the best possible way.
If you are found guilty of refusing to comply with a demand, you will be sentenced to a fine and a driving prohibition. For a first offence, it is a minimum of $2000 fine and a 1-year driving prohibition. A second offence has a minimum punishment of 30 days in jail.
What if I physically cannot provide a Sample?
So what happens if you are unable to provide a breath sample? For instance, you may have medical issues such as a respiratory illness that may challenge your ability to provide adequate breath samples. In this case, where the police have reasonable grounds to believe that you have been drinking within three hours of ceasing to operate your motor vehicle, the police may take a blood sample from you without a warrant. Your blood sample is used to determine the concentration of alcohol or drugs in your blood.
Drugs and Driving
The police can also demand that you provide them a blood sample without a warrant if they have reasonable grounds to believe that you have been driving while impaired by drugs within the last three hours of driving.
Check that there is a warrant
The police need a warrant or a court order to take a bodily sample from you for a DNA profile. Before you give the police a bodily sample for a DNA profile, check that they have a warrant or court order that says they can take a sample from you. The exception here is in the context of drinking and driving, where you are required to provide a breath or blood sample, even without a warrant.
If there is a Warrant, Know Your rights
Before taking a bodily sample, the police officer must tell you:
- what the warrant says,
- why the samples are being taken, and
- how the samples will be used to investigate the offence
Exercise your constitutionally protected rights and ask to speak to a lawyer if you have any questions or concerns.
The Take Away
If the police ask for a blood test in the context of drinking/drugs and driving, it is best to give them one if you have no medical ailments. This is because a refusal amounts to the equivalent of giving one and failing the test, for instance, blowing over the legal limit of 80. As well, you can end up being convicted of both refusal and impaired driving, with a doubling of your fines. Keep in mind that the blood sample is taken by a qualified medical practitioner or technician.
If you are being asked for a bodily sample for any other purpose, ask to speak to a lawyer before you do so, especially where there is no warrant to support the request.