Randomized Breath Testing and Approved Screening Device Demands in Canada

Randomized Breath Testing and Approved Screening Device Demands in Canada

Drinking and Driving law was overhauled in December, 2018 with a variety of police powers either created or broadened.  One power that was broadened was their use of Approved Screening Devices.

An Approved Screening Device (“ASD”) is a device that police use at the roadside to test for the existence of alcohol in one’s body. Typically, the device requires an individual to blow into a mouth piece which is attached to the device, expelling air from their lungs into it.  The device then provides a reading to the police in order to determine if there is a sufficient quantity of alcohol in the individual’s body to warrant actual breathalyzer tests.

The power to make an ASD demand is found under section 320.27(1)(b) of the Criminal Code of Canada.  That section reads:

 (1) 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 three hours, operated a conveyance, the peace officer may, by demand, require the person to comply with the requirements of either or both of paragraphs (a) and (b) in the case of alcohol or with the requirements of either or both of paragraphs (a) and (c) in the case of a drug:

  • (b) to immediately provide the samples of breath that, in the peace officer’s opinion, are necessary to enable a proper analysis to be made by means of an approved screening device and to accompany the peace officer for that purpose;

Prior to December 2018, the police were always required to have a “reasonable suspicion” that there was alcohol in the individual’s body before making an ASD demand.  However, through the change in law that occurred in December, 2018, the police now have the ability to conduct randomized ASD tests, provided that they have an ASD in their possession and they’re acting within the lawful course of their duty in doing so.

According to s. 320.27(2),If a peace officer has in his or her possession an approved screening device, the peace officer may, in the course of the lawful exercise of powers under an Act of Parliament or an Act of a provincial legislature or arising at common law, by demand, require the person who is operating a motor vehicle to immediately provide the samples of breath that, in the peace officer’s opinion, are necessary to enable a proper analysis to be made by means of that device and to accompany the peace officer for that purpose.

Consequently, if you are pulled over at a RIDE stop, a police officer need not peer in your window to see if there is an odour of alcohol emanating from your breath.  If they have the device at the scene, the law now permits them to demand a sample of your breath into an ASD.  Failure to comply with that demand could lead to a criminal charge of Refusing a Breath Demand, which carries the same consequences as being over the legal limit / impaired.

Call Andrew Captan, an experienced Drinking and Driving Lawyer, to assess your case and to assess whether the police followed all of the legal requirements set out in the Criminal Code — this being one of them.

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