Recent changes to drunk driving laws under Canada’s Criminal Code became effective in Bill C-46 on December 18th. The most noteworthy and controversial of these changes eroded the right for Canadians to be protected from unreasonable search and seizure under some circumstances. With the changed laws, police no longer need a reasonable suspicion that a driver has consumed alcohol before demanding a roadside breath test. Essentially, the standard for requiring breath tests has been lowered and now, a driver who is pulled over for any lawful reason may be required to give an approved screening device breath sample. And, if you refuse, police can charge you with failure to provide a breath sample, which is a criminal charge and now carries a mandatory minimum $2,000 fine for first offenders.
The application of mandatory testing does not apply to drugs. Police can demand an oral fluid sample in a roadside stop only if they reasonably suspect that the driver has drugs in their body. Specifically, if a police officer observes red eyes, abnormal speech, agitation, muscle tremors or other signs of possible drug impairment, and the driver tests positive in the oral fluid drug test, then police may have grounds to make a demand for a blood sample.
The Canadian government’s motivation for allowing mandatory breath tests is the fact that a large number of intoxicated drivers were previously not being identified by police at roadside stops, perhaps as many as 50 percent. And, the changed law is expected to significantly increase the chance of being caught if you’re driving while under the influence of alcohol. Canada’s Justice Minister, Jody Wilson-Raybould has admitted that she has “every expectation” that the changes in legislation will be challenged, but states that she believes the new law will stand and doesn’t violate the Canadian Charter of Rights and Freedoms.
Another key change is that it is now illegal to have consumed alcohol or drugs over the legal limit within two hours of driving. This means that if you drink alcohol just before driving and are able to reach your destination before the alcohol has a chance to reach your bloodstream – which means your blood alcohol level (BAC) may have been under the legal limit while you were driving – under the new rules, you may be found guilty of ‘over 80’ if you’re pulled over by police and your blood samples indicate your BAC was over 80 within 2 hours of being stopped.
The new two-hour range for a finding of drunk driving can have disturbing implications for persons who were sober while driving but then drink soon after arriving home or at another destination. For example, if you drive home, then have a few drinks, and police arrive at your door after having received information suggesting that you were driving suspiciously, police could demand a breath test and subsequently charge you with drunk driving based on a false assumption that you were intoxicated while driving. This is only one of several circumstances which could result in an unjust charge. The Ontario Criminal Lawyers’ Association has recently expressed concern that the new drunk driving legislation could, in fact, result in thousands of wrongful convictions.
If you were charged with ‘over 80’ or impaired driving, seek advice from a highly experienced DUI lawyer to ensure you have the strongest possible defence. At Kruse Law Firm, our lawyers have substantial courtroom experience and extensive knowledge of police arrest procedures, medical conditions which can impact breath and blood testing, and the science of drug and alcohol-related testing. Our expertise and resources have enabled us to successfully defend hundreds of clients who were charged with drunk driving or another driving-related offence.