We are all familiar with the RIDE Program (Reduced Impaired Driving Everywhere). If a person is flagged over for a RIDE program and for example, the officer detects an odour of alcohol on the person’s breath, the officer is entitled to form a reasonable suspicion that the person has been drinking and has alcohol in their system.
Upon the forming of this reasonable suspicion, the police officer is entitled to ‘forthwith’ make an approved roadside screening device demand. The detained person has absolutely no choice but to comply with this demand in most situations. The police officer does not have to provide the person with his or her right to counsel (which is normally read from a card and includes a 1-800 toll free number for duty counsel) prior to making an approved screening device demand,. However, there are exceptions to every rule. The safest course is to always provide a roadside breath sample on demand as it is very risky to assume that a particular facts situation might be the exception. Kruse Law Firm has local offices and lawyers in multiple cities in western Ontario. The firm focuses on defending impaired driving and DUI charges.
After making an approved screening device breath demand (ASD), the police officer is then required to ‘forthwith’ present a roadside screening device to the person and receive a breath sample into an approved screening device.
If the device needs to be brought to the scene, depending upon the number of minutes that pass, the charges might get thrown out by a judge because the person is under detention for too long, without receiving his or her right to counsel and/or the demand or breath sample is not provided ‘forthwith.’
The approved screening device is calibrated to show that the person will pass, fail or receive a warning. A pass occurs when the person registers below 50 mg. of alcohol in 100 ml. of blood. The device is calibrated for a ” fail” at over 100 mg. of alcohol in 100 ml. of blood-even though the legal limit is 80 mg. alcohol in 100 ml of blood. A warning is registered between 50 and 100 mg. of alcohol in 100 ml. of blood.
Obviously, if a person passes a screening test, they can proceed on their way. If the person receives a warning, they will receive a three day licence suspension for a first-time offender and their vehicle will be towed. If they fail the roadside screening device, they will be arrested on ‘reasonable and probable grounds’ that they have greater than 80 mg. of alcohol in 100 ml. of blood.
The officer will then make a demand for two formal intoxilyzer breath samples to be taken at the police station. This is the “real test” and not to be confused with the roadside screening device test which merely allows the police officer to decide whether to arrest the person on ‘reasonable and probable grounds’ that they are over the legal limit of blood alcohol and to administer the two main or “real” breath tests at the police station.