Area of Law: Criminal Law
Answer # 772
Police station tests: Blood, urine, saliva and DRE testsRegion: Ontario Answer # 772
When are drivers taken to the police station for testing?
Failing or refusing a roadside test
The police have the legal right to stop a car at any time for the purpose of checking certain things, such as whether the driver has a valid licence and insurance. The police do not have to suspect that a driver is impaired before they stop a vehicle. In fact, the police have the legal right to conduct random spot checks. In addition, police officers have the right to request any one or more of the three roadside tests:
- Standard Field Sobriety Test (SFST), for alcohol or drug impairment,
- Breath test for impairment due to alcohol, and
- Oral fluid test for impairment due to drugs.
If the driver fails or refuses to take a roadside test, the police will usually arrest the driver and take them to a police station or medical facility for further testing.
It is important to note that drivers do not have the legal right to refuse roadside testing (except in limited circumstances) and they do not have the right to speak with a lawyer before testing.
Police suspect impairment, but driver unable to provide roadside test
In addition, the police are permitted to request a breath or bodily fluid sample if they have a good reason to believe a driver has consumed alcohol or drugs, but the driver is not able to provide a proper sample —such as if the driver was in a car accident and was injured or rendered unconscious and therefore not in a condition to give a sample. The doctor or medical practitioner must be satisfied that taking the sample will not endanger the driver’s life or safety.
Police testing within three hours
Under section 320.27(1) of the Criminal Code police officers are allowed to demand a breath test or bodily fluid test, for anyone who has operated a motor vehicle within three hours of the test.
Police station or medical facility tests
It is important to note, that once a driver is arrested, he or she has a legal right to speak with a lawyer before submitting to further testing by the police. However, if the driver refuses to provide a sample, they may be charged with the offence of failure or refusal to comply (Criminal Code s. 320.15).
If a driver is taken to the police station or medical facility, there are 3 types of tests and samples that can be requested:
- Breath sample
- Bodily fluid sample (blood test, urine or saliva (oral fluid))
- Drug Recognition Evaluation (DRE)
Breath sample — evidentiary breath test
The police will normally demand a breath sample if they believe a driver has consumed alcohol, or to rule out impairment by alcohol where drug impairment is suspected. Breath tests taken at the police station or medical facility can be used as evidence in a criminal trial, and are therefore often referred to as evidentiary breath tests.
Bodily fluid samples — for alcohol and/or drug impairment
The police can also demand bodily fluid samples to confirm or negate findings from both a breath sample and DRE.
(a) Blood samples
Blood samples must be taken under the supervision of a trained medical technician. Blood samples will be able to show:
Blood-Alcohol Concentration (BAC). If the concentration is found to be over 80 mg of alcohol per 100 ml of blood, while the driver was in control of a vehicle, this is a criminal offence commonly referred to as ‘over 80’. In such cases, drivers are usually charged with one or more criminal driving offences.
Blood-Drug Concentration. If the concentration of a drug to blood is found to be over the legal limit, it may lead to a charge of drug-impaired driving. To see which drugs are subject to testing and the legal limits, refer to the Blood Drug Concentration Regulations.
(b) Urine and saliva samples
Urine and saliva samples can be used to confirm the findings of a DRE, which may lead to criminal driving charges being laid.
Drug Recognition Evaluation (DRE)
Police officers, who are trained and certified as Drug Recognition Experts, evaluate drivers suspected of impaired driving by using a 12-step DRE, which includes:
- sobriety tests, that are similar to tests for alcohol impairment;
- taking blood pressure, oral body temperature and pulse;
- measuring pupil size in different lighting conditions;
- reviewing the interview of the arresting police officer; and
- reviewing the interview and previous statements made by the driver.
Based on the results of the entire DRE, the police officer forms an opinion as to whether the driver is impaired. If the evaluator determines that the driver is impaired, he or she will state what category or categories of drugs may have contributed to the impairment. The evaluator bases these conclusions on:
- his or her training and experience, and
- the DRE Drug Symptomatology Matrix.
Failing a test
After the DRE is completed, the blood, urine and/or oral fluid samples are sent to a forensic laboratory for analyses to confirm or negate the findings of the evaluator. However, the mere presence of a drug in a sample is not, in itself, enough evidence to charge the driver with drug-impaired driving. In order to charge the driver:
- signs and symptoms of the DRE must be consistent with one or more drug categories, and
- the police evaluator’s findings must be supported by the toxicology (the test results of the bodily fluid samples).
For specific information on cannabis-impaired driving, refer to our Cannabis Law and Driving section.
Depending on the findings of the police, the test results, and the specific circumstances, a driver may be charged with one or more criminal driving offences, such as:
- impaired driving, section 320.14 (1) (a)
- over 80 – driving while exceeding the legal blood-alcohol limit, section 320.14 (1) (b)
- driving while exceeding the legal blood-drug limit, section 320.14 (1) (c)
- failure or refusal to comply with demand, section 320.15
- dangerous driving, section 320.13
- criminal negligence, section 219 (1)
- drive while license suspended, section 320.18
- failure to stop after accident, section 320.16, etc.
Under section 320.19 (1) of the Criminal Code, drug impaired driving offences carry the same penalty as offences relating to driving while impaired by alcohol.
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