What Procedures Must Police Officers Following During A DUI Investigation?

I have a great topic for today. It’s what clients often ask me at the first initial meeting, and what procedures do the police have to follow during a DUI or impaired driving investigation? And I’m going to break it down kind of step by step, and put it in layman’s terms for you. So an investigation usually starts with the police pulling your car over. Maybe they saw you leaving on the roadway or something like that, or maybe they just pulling it over for, you know, to check mechanical fitness of your car and ask you questions. 

By the way, unfortunately, they’re allowed to do that in Canada, so sometimes there’s an invalid reason for the stop, by the way, if the police don’t articulate things properly in their notes, for example, about the exact reasons for your stop. But you know that’s a section eight and nine unlawful detention, unreasonable search and seizure and detaining your vehicle, but it’s a rare circumstance. It does happen if they don’t articulate things properly. So secondly, they pull up now they’ve got maybe an odor of alcohol on your breath. 

By the way, they don’t need an odor of alcohol on your breath anymore, they can give you an alco test, screening test. That’s the new law as of 2018 but here it gets tricky for the police, because they have to then make a screening demand, for example, in that situation, and they give you the alco test. If they don’t have the device with you, there could be a rights to counsel issue. 

So there’s certain procedural steps. They have to make a demand. They have to set up the alco test properly. If you fail the test, then now they can arrest you. Well, are they giving you your rights to counsel properly? There’s charter violations, and this is a very tricky area. The police make a lot of errors, we win a lot of cases on right to counsel violations. So now they transport you back to the police station, get you back to the police station, and you have a right to a lawyer. They’ve got to do all that properly. There’s so many issues there. I can’t even describe how many 1000s of cases there are where the police make mistakes in that.

 And now the breath technician has to set up the intoxilizer properly. So there’s a whole procedural aspect to that, myself as a qualified breath tech as well. I’ve done the course, I’m looking for mistakes in that set up to see if the procedures were done properly, etc. And of course, they take your breath sample and then ultimately, perhaps charge you. And by the way, there’s one other issue at the roadside. The police can by-pass the alcho test. If they think, “you know what this person looks impaired”, they weaved a bit, they had a slight slur. Well, sometimes there was not reasonable probable grounds to do that. This is Section 8 Charter violation as well. So there’s all these tricky procedural steps, and there’s often breakdowns by police along the way. As a lawyer, I’m looking for that breakdown. It’s a lot of these things are charter violations, Section 10 (b), right to counsel with search and seizure under Section 8, unlawful detention under Section 9. 

And you’d be surprised and shocked how many times the police make mistakes, and where cases are absolutely winnable, but I basically explained to clients, look the police have a checklist of procedures that they’ve got to follow. As a lawyer, I’m trying to find where the break in the chain is, where they made a mistake. Another big one, by the way, is cell nudity at the police stations across the province. We’ve got a lot of cases thrown out where they didn’t advise you that you could have a privacy gown before you go to the washroom and they’re videotaping you. 

That happens a lot. It was really happening a lot that the police have tightened up in recent years because they were getting cases stayed and thrown out and our office was a big part of doing that. So it’s a very technical area. I just gave you a brief overview of some of the little issues that arise, and there are literally hundreds of issues that arise. You have to know the case law and you have to know what you’re doing to be able to properly defend one of these cases. 

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