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Roadside tests vs. testing at police station

Region: Ontario Answer # 7704

The police do not have to suspect that a driver is impaired before they stop a vehicle. Police have the legal right to conduct random spot checks for impaired drivers, and they have the right to pull any car over at an impaired driving program check point. These programs include BRAVES (roadblocks, drunk driving and drug evaluation) in Quebec, the Checkstops program in Alberta, and RIDE in Ontario.

However, there are rules regarding testing. Testing for alcohol or drug impairment can be done first at a roadside stop, with further testing done at a police station or medical facility.

Can a driver have a lawyer present before 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. Once a driver is arrested, he or she does have 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, or if they fail a test, they may be charged with the offence of failure or refusal to comply (Criminal Code s. 320.15). If you have been charged with a criminal driving offence such as impaired driving or refusing to comply with demand, it is important to hire an experienced criminal defence lawyer as soon as possible.

What roadside tests can police request?

There are three roadside tests that police officers can request:

  • Breathalyzer (breath-screening test for alcohol),
  • the Standardized Field Sobriety Test (SFST) for alcohol or drug impairment – which can include examining the eyes of drivers, as well as putting drivers through a series of physical tests, and
  • an oral fluid (saliva) sample to test for drug impairment.

The police can also make a judgment about your ability to drive safely based on several observations, including:

  • your appearance,
  • your answers to questions, and
  • whether you or your vehicle smells of alcohol

Mandatory alcohol screening under section 320.27(1) of the Criminal Code authorizes police officers to demand that a driver provide a roadside breath sample on an approved screening device without reasonable suspicion that the driver has alcohol in their body.  This is only allowed after the person has been lawfully stopped, for example if an officer stops a driver under provincial highway traffic law for the purpose of checking certain things, such as whether the driver has a valid licence and insurance.

However, to demand an oral fluid sample, police must have a reasonable suspicion that the driver has drugs in their body, for instance because the driver has red eyes or muscle tremors or appears agitated.

Three-hour limit

Police officers are allowed to demand a breath test or bodily fluid sample for anyone who has operated a motor vehicle within three hours of the test.

When are drivers taken to the police station for testing?

If the driver fails or refuses to take a roadside test, the police can arrest the driver and take them to a police station or medical facility for further testing.

A driver may also have to undergo further testing If police suspect impairment, 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 a breath or bodily fluid sample will not endanger the driver’s life or safety.

What tests can be done at a police station or medical facility?

If a driver is taken to the police station or medical facility, further testing includes:

  • Evidentiary breath-screening test
  • Bodily fluid (blood, urine, saliva) sample testing
  • Drug Recognition Evaluation (DRE)

What happens after the tests are completed?

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 section. Refer to other Answers in Impaired Driving Offences for more information on specific testing methods.

Failing an impaired driving test can have serious legal consequences for drivers. A driver’s BAC level at the time of arrest can result in immediate suspension of their driver’s license, even before they are convicted of a crime. If a driver is convicted of an impaired driving offence, they may face fines, jail time, or mandatory enrolment in a drug or alcohol treatment program. Repeat offenders may face even harsher penalties, including longer jail sentences and permanent loss of their driver’s license.

Get help

To erase your criminal record, call toll-free 1-888-808-3628 or learn more at Pardon Partners. It’s easier than you think.

If you have been charged with a driving offence, it is important to hire an experienced criminal defence lawyer as soon as possible. Contact our preferred criminal defence expert, Calvin Barry Criminal Lawyers for a free consultation at 416-938-5858 .

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