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Impaired Driving Countermeasures
One of the most effective ways of stopping the problem of impaired driving is through law enforcement. Impaired driving laws are designed to save lives, prevent injuries, and reduce traffic-related health care and economic costs resulting from impaired driving (alcohol and other drugs). The following overviews present information related to impaired driving.
Impaired Driving Offence (Impaired/Over .08 Sec 253 CCC)
It is an offence for a person to operate a motor vehicle or vessel or to operate or assist in the operation of an aircraft or railway equipment or have care and control of them if the person’s ability to do so is impaired by alcohol or a drug, or if that person has a concentration of alcohol in the blood exceeding 80 milligrams of alcohol in 100 milliliters of blood.
With regard to impaired driving, the definition of motor vehicles is expanded to include:
- Dirt bikes
- All terrain vehicles
Refusal to Comply with Request for Breath Sample (Refusal Sec 254 CCC)
If a peace officer has reasonable and probable grounds to believe that a person is or has within the last three hours committed the offence of driving impaired or driving with a blood alcohol level more than .08, the peace officer may demand breath samples from that person. When the peace officer has reasonable and probable grounds to believe that the physical condition of the person is such that he may not be capable of providing the breath sample or that it would be impracticable to do so, the officer may demand blood samples be taken.
It is an offence to refuse to comply without a reasonable excuse. The driver does not have a choice of which sample to provide.
Care and Control (Care and Control Sec 253 CCC)
If the accused has immediate capacity and means of operating the vehicle, whether the accused is asleep or not. (R vs. Diotte - 1991) Whether the vehicle is operable is irrelevant, only whether it falls within the definition. (R vs. Saunders - 1967)
What is Impaired?
There is no prescribed test in the code for impairment; however it must be shown that the accused’s ability to operate a motor vehicle is or would be affected. If the accused shows signs of consumption, that in itself is not enough to proceed. (R vs. Andrews - 1996)
What Does Drug Include?
Drug includes any substance consumed that will bring about impairment, including the ingredient in glue that produces a “high.” (R vs. Marionchuk - 1978)
Who Can Testify?
A police officer may give an opinion based on observations as to whether the accused’s ability to drive was impaired. However, this opinion carries no special weight, and a citizen can supply the same evidence. (R vs. Graat - 1982)
Requirements for a Demand (Sec 254 CCC)
For the officer to make a demand for breath or blood samples, there must be a belief on reasonable and probable grounds that the suspect had been operating or in control of a motor vehicle while impaired within the previous three hours.
A Citizen’s Observations
A citizen can provide a peace officer with the grounds to make a breathalyzer demand.
Timing for a Breathalyzer Demand
Although there must be a belief that the suspect had been operating or in control of a motor vehicle while impaired within the previous three hours, there is no requirement that the demand for breath samples must be given within three hours (R vs. Deruelle - 1992). However, the demand must be made "forthwith or as soon as practicable" after the belief has been formed.
Approved Screening Device (ASD)
To administer a roadside ASD test, the only criteria is that a reasonable suspicion exist that the driver has alcohol in his/her body. This suspicion may be based on an officer’s observations or the responses by the driver to the officer’s questions (R vs. Swietorzecki - 1995). An ASD test must be given "forthwith," which means the officer must have the ASD with them or promptly accessible. (R vs. Grant - 1991)
Standardized Field Sobriety Test (SFST)
SFST is a series of tests performed by a trained police officer when there is a reasonable suspicion that a driver has alcohol, a drug or drugs, or a combination of alcohol and drugs in his/her body. The tests include a Horizontal Gaze Nystagmus Test, Walk and Turn Test and the One Leg Stand Test.
The Winnipeg Police Service currently uses the BAC Datamaster C, manufactured by National Patent Analytical Systems.
Impaired Driver’s Right to a Lawyer
When an officer stops someone for impaired driving, the person is detained. The officer must advise the suspect (in plain language) of their rights to a lawyer. The officer also must make an attempt to facilitate contact by the suspect with a lawyer in private and without delay. (R vs. Dubois - 1990) A person is entitled to audio privacy when contacting a lawyer. (R vs. Miller - 1990)
Right to Lawyer – Young Offenders (YOA Sec 56 2-d)
In addition to the general rights to a lawyer (as stated above), Section 56 of the Young Offenders Act states that if a youth contacts a lawyer, parent or other person, then he/she must be given a reasonable amount of time to consult with that same person, in person, before making any statements or consenting to a demand.
Rights to Lawyer – ASD and SFST
The person subject to a roadside breath test (suspicion of alcohol only) is not entitled to be advised of their rights to counsel. Although the person is detained, non-compliance with rights-to-counsel is a reasonable limit on their rights in these situations. (R vs. Bacon - 1990)
In addition to a belief that a driver is impaired, to make a blood demand a peace officer must, on reasonable and probable grounds, believe the suspect’s physical condition makes it incapable for them to provide a breath sample or it would be impracticable to obtain a breath sample from the suspect. A qualified medical practitioner must be of the opinion that taking blood samples would not harm the suspect’s health or life. In addition, the suspect must be advised that the samples will be taken by or under the direction of a medical practitioner. (R vs. Green - 1992)
A magistrate may issue a warrant under Criminal Code Sec 256 authorizing an officer to obtain blood samples when they are satisfied under oath that there are reasonable grounds to believe that a person within the preceding 4 hours has committed, as a result of the consumption of alcohol, an offence under Sec 253 (Impaired/Over .08) and that the suspect was involved in an accident causing death or bodily harm (including harm to themselves). In addition, a qualified medical practitioner must be of the opinion that the person is in a condition that makes them unable to consent to the taking of blood samples. The medical practitioner must also be of the belief that taking the samples would not endanger the health or life of the suspect.
Drug Recognition Expert (DRE) Evaluation
This evaluation is conducted by a trained and certified DRE officer under a demand that can be given when there are reasonable and probable grounds to believe that a driver is impaired either by drugs or a combination of drugs and alcohol. Refusal to submit to the DRE evaluation carries penalties that are the same as refusing a breath test.
IMPAIRED DRIVING COUNTERMEASURES LINKS:
- Drug Recognition Experts: History & Development
- Drug Recognition Experts: The DRE Proticol
- Drug Recognition Experts: The 7 Drug Categories
- Criminal Code Defintion: Operation While Impaired
- Manitoba Public Insurance: Sources of Impairment
- Province of Manitoba: Impaired Driving
STANDARDIZED FIELD SOBRIETY TESTING
STUDIES AND STATISTICS
CASE LAW SEARCH:
May 25, 2017
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