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Tests, criminal charges, penalties, suspensions and prohibitions
Impaired driving applies to all conveyances, including motor vehicles such as cars, trucks, snowmobiles, all-terrain vehicles, etc., boats and even aircraft and railway equipment.
Before, or at, a traffic stop, police officers use their training as well as what they see, hear and smell to look for signs that a driver may have alcohol and/or drugs in their body
If you are, or were within the preceeding 3 hours, operating a conveyance and a police officer has reason to suspect that you have alcohol and/or drugs in your body, a police officer may make a demand on you to:
- Provide a sample of your breath, at roadside, on an Approved Screening Device (ASD)
- Provide an oral fluid sample, at roadside, on Approved Drug Screening Equipment (ADSE)
- Participate in Standardized Field Sobriety Testing (SFST)
Failure to comply with the demand will result in criminal charges which carry the same, or greater, penalties as driving while impaired.
After providing a breath or oral fluid sample the results of that test will determine what, if any, further actions are taken. Performing poorly on any of these tests can lead to an arrest.
After an arrest, the driver is typically taken to a police detachment or medical facility to undergo additional testing. Additional testing can be done in the form of an evidentiary breath alcohol test, a Drug Recognition Expert (DRE) evaluation or a blood sample taken by a trained medical technician.
An Approved Drug Screening Device is not required to enforce drug-impaired driving laws. If the police officer does not have any Approved Drug Screening Equipment available, they are also able to use SFST to determine if they have reasonable grounds to believe a driver is impaired.
Investigative process
Roadside testing – prior to arrest
Under new legislation, a police officer can now demand that a driver provide an oral fluid sample to be tested with an ADSE at the roadside.
- If the oral fluid sample gives a positive result, the driver may be arrested and undergo additional testing.
- If the oral fluid sample gives a negative result, and the police officer continues to see indications of drug usage, they can demand that the driver participate in a Standardized Field Sobriety Test (SFST).
- If the driver passes the SFST, they are released.
- If the driver performs poorly on the SFST, they may be arrested.
- If the oral fluid sample gives a negative result, and the police officer doesn’t see indicators of impairment, the driver may be released.
Additional testing – after an arrest
Under new legislation, after the suspected drug-impaired driver is arrested, police can proceed in one, or both, of the following ways:
- A police officer can demand that the impaired driver provide a blood sample.
- If, after analysis, the blood sample shows a blood drug concentration over the legal limit the driver is charged with the associated offence.
- If, after analysis, the blood sample shows a blood drug concentration under the legal limit, no charges are laid.
- Demand that the driver undergo a 12-step DRE evaluation at a police detachment.
- If, after the evaluation, the police officer determines that the driver is impaired by drugs, a charge can be laid and a bodily fluid sample is taken to confirm the findings of the evaluator.
- If, after the evaluation, the police officer determines that the driver is not impaired by alcohol and/or drugs, no charges are laid and no bodily fluid sample is taken.
After being arrested, an officer will advise the driver of their rights, including the right to a lawyer. The right to speak with a lawyer can be exercised before an evidentiary breath test, providing a blood sample, or participating in a 12-step DRE evaluation. However, the ASD, ADSE, and SFST evaluations, performed prior to arrest, are done before speaking with a lawyer.
Other criminal charges
Based on a police officer’s observations you can also be charged criminally, under section 320.14 of the Criminal Code of Canada: it is a crime to operate a conveyance while impaired by alcohol or a drug, regardless of additional evaluations confirming specific blood intoxicant concentrations.
Provincial laws also carry additional penalties for impaired driving
Check your Provincial/Territorial laws to determine what additional penalties may be imposed upon you, in addition to any criminal penalties, for impaired driving where you live. These penalties can include such things as administrative costs, licence suspensions, required training to renew your licence, and/or vehicle seizures.
Definitions and explanations
- Mandatory alcohol screening
- As of December 18, 2018, police no longer require a reasonable suspicion to demand a breath sample from a driver. Anyone operating a motor vehicle who is lawfully stopped by police can be required to provide a breath sample, at the roadside, to detect potential alcohol in their blood. Failure to comply with this demand will also result in criminal charges which carry the same, or greater, penalties as driving while impaired.
- The “Warn” range (a blood alcohol content of 50mg% to 80mg%)
- An individual who submits a breath sample in the “Warn” range can be subject to administrative penalties such as a roadside suspension or an immediate roadside prohibition.
- A “Fail” (a blood alcohol content at or above 80mg%)
- An individual who submits a breath sample and registers a “Fail” will be required to provide further breath samples at the police station. A subsequent breath sample that meets-or-exceeds the legal BAC limit of 80 mg% means that the person may be charged under section 320.14 of the Criminal Code of Canada: having a blood alcohol concentration that is equal to or exceeds 80mg% within two hours of ceasing to operate a conveyance.
- Standardized Field Sobriety Test (SFST)
- If you are, or within the preceeding 3 hours were, in the driver’s seat/position of any car, truck, ATV, boat, aircraft, etc. (whether it is in motion or not) and a police officer reasonably suspects you have consumed alcohol, drugs or a combination of alcohol and drugs, the police officer may make a demand of you to submit to a Standard Field Sobriety Test (SFST).
A SFST test is typically administered roadside and consists of a police officer putting a conveyance operator through a series of standardized sobriety tests.
Based on a police officer’s observations you can also be charged criminally, under section 320.14 of the Criminal Code of Canada, regardless of you submitting to a SFST demand.
Failure, or refusal, to comply with the SFST demand can also result in criminal charges that carry the same, or greater, penalties as impaired driving.
- Drug Recognition Expert Evaluation
- The evaluation includes sobriety tests that are similar to the SFST’s, taking clinical indicators (blood pressure, body temperature, pulse, etc.) and measuring your pupil size in different lighting conditions. If, at the conclusion of the evaluation the officer forms the opinion that your ability to operate a motor vehicle is impaired by one, or more, categories of drugs, you will be charged under section 320.14 of the Criminal Code of Canada.
Refusal to undertake the evaluation or quitting at any time will result in criminal charges that have the same, or greater, penalties as driving while impaired by alcohol.
At the conclusion of the drug evaluation, if the evaluator determines that you are impaired and that the impairment is the result of one or more category of drugs, or a combination of alcohol and drugs, you will be given a demand to provide a bodily fluid sample (blood, oral fluid or urine). The sample is to confirm the findings of the evaluator and the choice of the sample is made by the evaluator.
Failure to provide the sample will result in criminal charges that have the same, or greater penalties as impaired driving.