Last Updated: December 10, 2010
Police have a number of tools to assist them in determining if a driver is impaired by drugs or alcohol.
Standard field sobriety tests are designed to assist peace officers in spotting signs of impairment and typically include checking a driver's ability to follow the movement of an object with their eyes, keep their balance and follow instructions. Peace officers may require a driver to take a standard field sobriety test if they have reason to believe that the driver has too much alcohol in their blood system or that they are unsafe to drive because of drugs or other substances.
If the test indicates signs of drug impairment the driver must submit to a mandatory drug evaluation and classification assessment by a trained peace officer. As part of the assessment, the driver must provide a blood, saliva or urine sample. Drivers failing or refusing the testing can receive an immediate roadside suspension and be charged with refusing a demand. The penalty for refusing is no different than that for a .08 or impaired charge.
Another option is roadside screening. If a peace officer has a reasonable belief that a driver has any alcohol in their body the peace officer can demand that the driver immediately provide a breath sample in an approved screening device. Roadside breath tests are used as a screening device or investigative tool to detect alcohol. The results of a roadside test can form the basis for a formal breathalyzer demand. Drivers do not have a right to consult with a lawyer before complying with a demand for a roadside sample. It is a criminal offence to refuse a roadside breath test.
A breathalyzer demand may be made when a peace officer has reasonable grounds to believe that a driver is impaired or has a blood-alcohol level over .08. The police may demand a person to take a breathalyzer test if their driving is erratic, or if police have other reasons to believe that the driver has been drinking. If someone is stopped at a roadside checkpoint or for a traffic violation, a police officer may demand the person to take a breathalyzer test even when there is no alcohol on the driver's breath.
A police officer who has reason to believe that a person has been driving while impaired or over .08 within the last three hours may ask the person to take a breathalyzer test, even if that person is not in their car when the demand is made. For example, if an officer sees someone in a car weaving all over the road and then finds that person at home half an hour later, the driver could be required to take the test.
Unlike roadside screening devices, which typically display a reading of "pass", "warning', or "fail", breathalyzer machines are calibrated to indicated a precise blood-alcohol reading. To take a breathalyzer test, the driver has to give at least two breath samples. These are taken at least 15 minutes apart. Both readings are recorded on a certificate which is used in court as evidence of the driver's blood-alcohol level.
While drivers facing roadside screening tests do not have the right to a lawyer at that time, drivers facing a breathalyzer demand do have a right to counsel. There are several reasons why a person in this situation has the right to get legal advice. First, the results of this test could be used to charge the driver with a criminal offence. Second, the police have some time to do the testing. This gives the driver enough time to contact a lawyer for advice. This does not mean that the test has to wait until a lawyer arrives at the police station. A lawyer can give advice over the phone. If after talking to a lawyer, or having had a reasonable opportunity to do so, the driver refuses to take the test, a charge of refusing to take a breathalyzer test may be laid.
In some situations, the police can demand a blood sample rather than a breath sample to measure blood-alcohol levels. A demand for a blood sample is made when the police officer believes that the driver's physical condition makes them unable to take a breathalyzer test, or when it would be unreasonably difficult to obtain breath samples. For example, a person who suffers a mouth or face injury in an accident might not be able to provide a proper breath sample. A blood sample may be demanded instead. Refusing to give a blood sample is an offence with the same consequences as refusing a breath test.ISBN/ISSN number: 1918-1728