Constables SMITH and MARTIN: We are not, and have no interest, in just randomly showing up to your home or bar and testing you. Trust me, we have better things to do with our time

Police in Canada can now demand breath samples in bars and at home!

You may have seen the above headline in your social media feed the past few days, and I wanted to provide some clarification around this legislation update. To begin – Police are not going to randomly walk into homes or restaurants to conduct breath tests.

The title, and stories, basically make it sound like police will be randomly walking into bars and homes to demand a sample of your breath, and lay charges if you fail. The wording is designed to be sensational and make it sound like we have sweeping new powers; the fact is we can’t and don’t want to just walk into your home to test you for alcohol for no reason.

Most people are surprised to know that we could always investigate you for impaired driving if we found you sitting at a bar, or at home, after driving. What is important to note is that we can’t just do a random check, without having evidence, that you were recently operating a motor vehicle. So, we are not, and have no interest in just randomly showing up to your home or bar and testing you. Trust me, we have better things to do with our time.

There is a time and a place for this however, and you may be surprised to know that we could always demand a sample from you with sufficient evidence, even if we found you at home or in a bar. This is called conducting an impaired driving investigation. As police officers we get paid to be suspicious and conduct inquiries to determine whether an offense was committed. The below is an example of an impaired driving investigation where a breath demand after the fact may be requested:

John Doe crashes a car and flees the scene. He runs into a home or bar, to try and avoid prosecution, and is witnessed by members of the public or police. We find Mr. Doe at home or in the bar, and through our investigation we determine Mr. Doe was operating the vehicle and is under the influence of alcohol.

This type of investigation could include gathering witness statements, reviewing security camera footage, and collecting physical evidence found at the scene. In this case we demand a breath sample from Mr. Doe as part of that investigation.

This process is not new, and has not changed. 

What has changed is that the law now states that you can’t be over the legal limit within two hours of operating a vehicle. This change was designed to mitigate some of the common defenses utilized by impaired drivers. For example, claiming they were sober when they were driving, and got drunk between exiting their vehicle and being arrested by the police. This is often what happens in cases of hit and runs, similar to the example I shared above.

These legislative amendments actually change very little procedurally, for Police, but still requires the investigating officer to articulate enough grounds to prove the person was operating the vehicle impaired within the past two hours.

In conclusion, police in Canada have always been legally entitled to request a sample of breath after the fact, this is not something new.

Please understand that we will only be enforcing these changes as part of an impaired investigation, and all the circumstances for each individual case will be taken into consideration -- prior to laying of any charges. And no, we won’t be randomly walking through bars, or up to homes, to request a test. It would only be part of an impaired investigation, and even then the evidence needs to be present and significant to successfully lay a charge in this manner.

This approach has been introduced in a number of countries, including Australia, New Zealand, Ireland, France, Belgium and the Netherlands. Research in a number of countries demonstrates that it has contributed to a measurable reduction in accidents and deaths on roads and highways.

For example, in Ireland, it has been credited by the Road Safety Authority with a 23% reduction in road deaths in the 11 months after introduction. In New Zealand, visible mandatory-screening checkpoints were credited with a 32% reduction in crashes.

In conclusion, police in Canada have always been legally entitled to request a sample of breath after the fact, this is not something new.  The best and safest rule still remains ... “Don’t Drink & Drive”.

Constable Mark Smith and Constable Chris Martin

~~ Calgary Police Service

UPDATE ... January 15^th, 2019

I just want to take a moment to highlight a line, in this new law, which isn't getting a lot of press. This is the section that follows immediately after the section that's getting all the press coverage. Pay special attention to sub-paragraph (b).

"(4) No person commits an offense under subsection (3) if:

(a) they consumed the drug or the alcohol or both after ceasing to operate a motor vehicle or vessel, or after ceasing to operate or assist in the operation of an aircraft or railway equipment or after ceasing to have the care or control of a motor vehicle, a vessel, an aircraft or railway equipment; and

(b) after ceasing the activities described in paragraph (a), they had no reasonable expectation that they would be required to provide a sample of a bodily substance. This is called the "Innocent Intervening Consumption Clause,”

In short, it means that a person being requested to provide a breath sample under the new 2-hour rule must have a reasonable expectation that they would be required to provide a sample of breath.

Example 1: A person crashes a vehicle and drives away to their home or a bar. The operator in this situation would have a reasonable expectation that they would be required to provide a sample of breath. The new law applies.

Example 2: An anonymous tip is received regarding a person who drove home allegedly impaired. In this case the individual has no knowledge of the complaint and thus no reasonable expectation that they would be required to provide a sample of breath. This combined with the difficulty in identifying who was driving the vehicle at the time would make this investigation a challenge when it comes to laying any charges.

PLEASE NOTE ... the above information is a basic interpretation of the new legislation. To obtain full legal advice please speak with a current practicing criminal lawyer)