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I was out with friends, and one of them was complaining how cops can now pull you over randomly and demand a breathalyzer test. I don’t get what the problem is. If you haven’t been drinking, you have nothing to worry about, right? – Krista, Kelowna
Drunk driving rules might make roads Canadian safer, but they could be putting your rights in danger, lawyers say.
“As far as I’m concerned, [random testing] allows the police to violate your Charter rights,” said Kyla Lee, a Vancouver-based criminal-defence lawyer. “Our trade-off for rights and freedoms is a level of risk, and we will ever be able to eliminate the risk. If we made the death penalty automatic for impaired driving, we will still have unsafe roads.”
Before the change, police couldn’t demand a breath sample without reasonable suspicion – say, the smell of alcohol, slurred speech from the driver or weaving in the road – that you were impaired.
Under the old rules, when the case went to court, the officer would have to explain why he suspected that you might have been drinking.
Keeping more drunk drivers off the roads?
Ottawa said the change was necessary to help police catch impaired drivers who might not have been tested under the old rules.
“It will keep the roads a lot safer – they have it in Australia, New Zealand and Europe, and they love it,” said Andy Murie, CEO of Mothers Against Drink Driving (MADD) Canada. “And once in a while, I might get pulled over and have to give a breath test. If I go to the airport, the screening is a lot more intensive than giving a roadside breath test.”
In January, a 70-year-old Mississauga man told Global News that he had been pulled over and asked to give a breathalyzer test after an officer saw him dropping off empty bottles at an Ontario Beer Store. He hadn’t been drinking and passed the test.
“Under provincial laws, any officer at any time can pull a car over at random. That’s not new, and it has nothing to do with the impaired-driving law,” MADD’s Murie said. “Don’t forget, the smell coming out of that car would have been really strong, so even under the old [impaired] law the officer could have had a suspicion that the guy had been drinking.”
New testing rules to be tested?
So if you’re not over the limit, what’s the problem with giving a breath test?
“You can never have touched a drop of alcohol in your life and be asked to pull over and blow,” Lee said. “There are numerous things that will make you fail the test – recent use of mouthwash, certain cough syrups, some of the propellants in asthma inhalers. If you eat a banana and blow into a breathalyzer, you will fail.”
And, the law lets police stop any driver for a test that could take 15 to 20 minutes. During that time, they could be visually searching your car, said Joseph Neuberger, a Toronto-based criminal-defence lawyer.
“The argument that you haven’t done anything wrong so you should have nothing to hide, does that mean police shouldn’t need search warrants to search our homes and our computers?” Neuberger said.
Lee said she plans to challenge the new law in court as a violation of the Charter of Rights and Freedoms.
The law also makes it illegal to have a blood-alcohol concentration (BAC) at or over .08 within two hours of driving.
It’s meant to prevent drunk drivers from leaving a crash scene before police get there and going to get a drink so they can argue that they got drunk after the crash, but weren’t drunk before it.
“If you cause a crash and you leave the scene, sure, the police will go to your house and demand a breath test,” Murie said. “They’re not going to breath-test you if you weren’t in a crash; you have to do something to trigger them.”
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