The R.I.D.E. Program and Your Rights

What Is Impaired Driving?

Section 320.14(1) of the Criminal Code of Canada   defines the offences of operation while impaired and   “over 80” as follows.

Everyone commits an offence who:

•  operates a conveyance while the person’s ability to operate it is impaired to any degree by alcohol or a drug or by a combination of alcohol and  a drug. 

(b) subject to subsection (5), has, within two hours after ceasing to operate a conveyance,  a blood alcohol concentration that is equal to or exceeds 80 mg of alcohol in 100 mL of blood.

Conveyance is defined in s. 320.11 as a motor vehicle, a vessel, an aircraft or railway equipment. 

Reasonable Suspicion is No Longer Required

Before the amendments to the Canadian Criminal Code in 2018, when a driver was pulled over for a R.I.D.E. check, a police officer was allowed to demand a breath sample be given for a roadside ASD (approved screening device) if the officer had a reasonable suspicion that the driver had alcohol in their body. ‘Reasonable suspicion’ was based on a number of factors such as: erratic driving, the smell of alcohol on the person’s breath, slurred speech, bloodshot eyes, open bottles of alcohol visible in the vehicle, or a driver’s admission that they had consumed alcohol.

As a result of the 2018 mandatory alcohol screening amendments to the Criminal Code, the police no longer require a reasonable suspicion to demand a roadside Alcotest. The police are now allowed to demand a roadside ASD for any driver that they lawfully stop, including at a R.I.D.E program. A person could pull into a R.I.D.E. program and appear completely sober and deny they have consumed alcohol, and the police are still allowed to demand they provide a roadside screening device breath sample to determine if they are over or under the legal limit. For example, if the police pull a driver over for speeding, other traffic violation or just to check their licence and registration, they can demand they provide a roadside ASD.

If there is a significant delay in performing the roadside check or, if the driver registers a ‘fail’ on the Alcotest, an officer is obligated to inform the driver of their legal rights, including the right to speak with a lawyer. Refusal to provide a breath sample, when demanded , places the driver in the same situation as someone who is charged with impaired driving. 

R.I.D.E. Program Limitations

A R.I.D.E. program cannot be used as an excuse for police to do an unauthorized search. When a police officer stops a vehicle for the purposes of questioning during a R.I.D.E. program, they only have the authorization to identify drivers in violation of section 320.14. . Police should not be asking a driver any questions that don’t directly pertain to their use of alcohol, and drivers are under no obligation to answer any questions that have nothing to do with whether, and how much they may have been drinking.

If a person has in fact been drinking and advises the officer he has not been drinking, then if there are no other symptoms of impairment, the officer can still demand that they provide a roadside screening device breath sample. Practically speaking, if a driver appears to be sober and does not admit they have been drinking, most officers will not make a roadside ASD and let them go on their way. However, in my experience, many drivers will admit to a police officer at a R.I.D.E program that they only had “2 or 3 beers” thinking they are helping themselves by minimizing the fact that they had more than this.

In fact, such admissions will clearly cause the police to make a roadside ASD and could unwittingly potentially lead to a DUI conviction. A driver’s answers to the police at a R.I.D.E. program before they are placed under arrest, cannot be used against them at trial to establish guilt as they are considered to be “pre-arrest statements” made before an accused has been provided with the right to retain and instruct counsel. 

The R. v. Mellenthin Case

In R. v. Mellenthin, 1992, the Supreme Court of Canada ruled that R.I.D.E. check stops are not a legal basis for a warrantless search and any evidence found during an unjustified search while a person is detained at a R.I.D.E. stop cannot be admitted as evidence against them. The circumstances for this case began when officers shone a flashlight into a person’s car in the course of performing a R.I.D.E. check. The officers spotted an open gym bag and asked the driver to extract some items from the bag, then noticed an empty glass vial often used to store cannabis resin. The officers subsequently searched the car and discovered hash oil and cannabis resin cigarettes, and then arrested the man on drug charges. However, the Supreme Court ruled that the officers’ questions pertaining to the gym bag were improper; the driver was detained but not fully aware of his rights, and the search was unreasonable and without legal grounds.

The Supreme Court made it clear that a R.I.D.E. check does not provide police officers with a general search warrant for vehicles, drivers, and passengers that are pulled over. In Mellenthin, it was stated that the primary purpose of R.I.D.E. check programs, which essentially detains motorists arbitrarily, is to check for sobriety; valid licence, ownership and insurance; and the mechanical fitness of vehicles. “Random stop programs must not be turned into a means of conducting either an unfounded general inquisition or an unreasonable search.” 

The R. v. Dale Case

Given that the intention of a R.I.D.E. program is to identify impaired drivers, police also have no legal authorization to question or detain passengers. The Supreme Court of Canada clarified this in R. v. Dale, 2012, where a man was tried for having breached his probation for consuming alcohol while prohibited from doing so. The man was a backseat passenger in a vehicle pulled over for a R.I.D.E. check and was questioned by a police officer when seen to have unopened bottles of alcohol at his feet. The officer asked for identification from all of the vehicle occupants and then ran a check on their names. Mr. Dale was subsequently arrested when the officer discovered that he was on probation and under a condition prohibiting alcohol consumption, but had alcohol on his breath.

When questioned at trial, the arresting officer told the court that ‘they’ (meaning his unit) routinely ran a check on all occupants of every vehicle stopped to perform a R.I.D.E. check. Further, if any of the passengers, including the accused, had refused to answer his questions, the officer admitted that he would have done nothing further to pursue his questioning, although he did not inform the accused or other passengers of this at the time. The officer also testified that passengers are free to leave during a R.I.D.E. check, another fact of which the accused was not informed. In R. v. Dale, the judge concluded that the questioning of the accused and seizing of his identification was a clear violation of his rights under section 8 of the Canadian Charter, and therefore, the evidence was excluded and Mr. Dale was found not guilty.

R.I.D.E. programs exist solely to catch and deter alcohol or drug impaired drivers. In R. v. Dale, the judge expressed deep concern over the officer’s testimony that it is ‘common’ for police to violate an individual’s rights under section 8. “The seizure of identification from passengers at a R.I.D.E. program has been specifically denounced as a violation by the highest court in this country and in this province. The OPP must obey the law… Where the police are acting in bad faith and continue to engage in conduct specifically denounced by the Court then the violation is very serious.”

Clearly, drinking and driving can have tragic consequences in terms of injury and loss of life. Taking advantage of other options for getting home, such as calling a cab or a designated driver is the safest choice when you  have been drinking or doing drugs  and the best way to avoid a impaired driving  offence. 

DUI Lawyer in Ontario

In most cases, motorists pulled over for a R.I.D.E. program check-in Ontario are not found in violation of any alcohol-related offence. Nevertheless, it is in everyone’s best interests to be aware of their constitutional rights with respect to R.I.D.E., one of the most important of which is to consult with an experienced DUI lawyer at Kruse Law if you are charged with impaired driving or ‘over 80’. Schedule a free consultation and speak with one of our DUI Lawyers in Windsor, London, Kitchener and Toronto today so we can discuss both your rights, future and bring a strong defence forward getting you the best possible outcome in your case.