Mandatory Roadside Testing will make it easier for Police to detect Drunk Drivers

Amendments to Canada’s impaired driving laws became effective today, and are intended to simplify and modernize drunk driving laws.  Legislators believe that the changes will help deter drunk driving and make it easier for the Crown to prove alcohol concentration for persons who are charged with being over the legal limit. The changes are also expected to result in reduced delays in going to trial.

Likely the most noticeable and impactful change associated with the new legislation is the fact that police are now authorized to perform mandatory roadside tests to identify impaired drivers.  This means that police no longer require a reasonable belief to suspect that a driver is intoxicated in order to demand a breath sample.  Instead, police officers have the authority to demand that a driver give a roadside breath sample on an approved screening device whenever a driver was lawfully stopped in connection with a traffic violation or common law offence, even when the driver shows no signs of having recently consumed alcohol.  If you were pulled over for any lawful reason, such as a broken tail light, speeding or failing to come to a complete stop at a stop sign, the police officer can demand that you submit to a Breathalyzer test.  And, any driver who refuses faces a criminal charge.

The Federal Government’s argument for enacting mandatory alcohol screening is the fact that fatal motor vehicle accidents due to impaired driving were shown to decline in many jurisdictions where mandatory alcohol screening was legislated.  Further, research suggests that in the past, as many as half of drivers with a BAC (blood alcohol concentration) over .08 were not detected at roadside checks.

The penalties for impaired driving have also increased effective today. There are no changes to the mandatory minimum jail terms for impaired driving and ‘over 80’; however, there are some higher mandatory minimum fines and maximum penalties, including:

• No change was made to the current mandatory fine of $1000 for first offenders with a BAC of .08 to .119 (80 to 119 mg of alcohol per 100 ml of blood).
• The mandatory minimum fine for first offenders with a BAC of .120 to .159 has increased to $1,500.
• The mandatory minimum fine for a first offender with a BAC of .160 or over has increased to $2,000
• First offenders who don’t comply with a lawful demand are subject to a minimum fine of $2,000.

Another key change in legislation was to broaden the time period during which a driver cannot have a blood alcohol concentration over the legal limit, to within 2 hours of driving.  This change is aimed at eliminating the ‘bolus drinking’ defence as well as the intervening drink defence. 

Bolus drinking involves persons who consumed alcohol immediately before driving but may not have been over the legal limit while driving because the alcohol was not absorbed, or fully absorbed, into their blood.  Under the new rules, such drivers may be found guilty of drunk driving if their BAC is found to be over the legal limit within 2 hours of being stopped.   Legislators say that the change in law is aimed at eliminating risky behaviour involving drivers who drink immediately before driving with the hope of arriving at their destination while still under the legal limit.

The intervening drink defence refers to drivers who claim that they did not consume alcohol before driving but only had a drink to calm their nerves after being involved in an accident.  And, this is the reason why they blew over in a roadside test and/or registered a BAC over the legal limit.  This type of action can interfere with the alcohol testing process, but by changing the offence timeframe to 2 hours, persons who drank after driving but before being tested are now more likely to be found guilty of drunk driving.  However, the law provides a limited defence to recognize that there can be circumstances where a driver may have innocently consumed alcohol after driving and had no reason to believe they would need to provide a breath sample.

While some organizations, such as Mothers Against Drunk Drivers (MADD), have applauded the new legislation, others have raised concerns that the changes have created legal grounds for baseless searches.  And, civil rights groups suggest that racial minorities will be most effected as they are disproportionately and often, unfairly, pulled over by police.