Understanding the Rules and Limits of Breathalyzer Tests: A Legal Analysis

We had to do a breath letter test because I don’t, we’re weaving in and out of traffic. Thank you for all the tags in this video. I have actually commented on this video before. I think this is about 8 to 12 months old now. So you could go back and watch my earlier video, but I can reiterate that demand for the breathalyzer test in that video was probably not lawful. And there’s a couple of reasons why. Even though it is illegal to go home after you were driving and consume alcohol within two hours after driving, the put you over the limit. That doesn’t mean the police have the right to just show up on your doorstep and demand that you provide a breath sample.

There’s a couple of rules that govern here. One is the police’s ability to actually enter onto your property for the purposes of investigating you for a criminal offense. There’s a recent decision from the Saskatchewan Court of appeal that said that the implied nice license to knock an approach that people have, like your front door is open to anybody to come knock on it and sell you a vacuum cleaner, order to talk to you for any reason, which also applies to the police, does not apply for the purposes of the police attending there to investigate a criminal offense. Because you can only say that the implied license is going to go so far as to what people would logically want. Police or anybody to come to their property to do and investigate them for a criminal offense is not among those things. So the sketch 1 Court of appeal has decided that in a favorable way, so that’s one big concern. But even if the entry onto the property and the knock on the door was justified, and that’s a big question here.

The breadth sample request is not because the police have to have one of two things in order to make a demand for a roadside or doorstep breathalyzer. The first one is called a mandatory demand. This is when the police don’t have any grounds to suspect that you’ve been drinking. Maybe they got a complaint about the way that you were driving, but they don’t know that’s alcohol or a drug or you were fatigued or you’re having a medical episode or a mental health issue or whatever, right? So they don’t have a suspicion, reasonable suspicion that there’s alcohol in your body and they do the test to Herman whether there’s alcohol in your body. And to give them some sort of an indication of whether or not it would be an impermissible level without actually calculating your specific blood alcohol concentration. And when they show up at your doorstep, they’re not permitted to do that test. That is because the Criminal Code requires that the police deal with somebody who is operating a motor vehicle and uses those words is operating, referring to somebody who is presently driving. The other type of demand that exists is called a suspicion demand. So the police have to have a reasonable suspicion that you have alcohol in your body. And they have to have reasonable grounds to suspect that you have within the preceding three hours operated or had carrying control of a motor vehicle with alcohol in your body.

Now, had the officer shown up lawfully, entered the property, knocked on the door, engaged with the person and detected symptoms of impairment and had information as to the time of driving and this person admitted that they were driving or there was enough information to link them to the vehicle, like a description that match that person, potentially that would be a suspicion demand.

But if you watch the whole video, individual in the video, the person who’s given the breath test says he hasn’t been drinking and he doesn’t look like he’s been drinking. There’s nothing about the way that he presents that would suggest that he’s like impaired or intoxicated. He’s not slowing his speech. He doesn’t have red, bloodshot eyes. There’s no fumbling, no balance issues. He’s quite normal, basically very normal in that video. So nothing but his physical condition. And because he hasn’t been drinking, there’s not gonna be any odor of liquor on his breath. And because they haven’t been drinking, it’s not likely that he told the police he had been. So there’s no basis for the suspicion there. So if it was a suspicion demand and they were able to make it, even though he wasn’t actually operating the motor vehicle. It still doesn’t matter because they didn’t have a suspicion of alcohol in the body.

So there are rules that the police have to follow. Unfortunately, a lot of these rules are either poorly understood, they’re confused because they’re very technical. And there are all sorts of different demands that apply in different circumstances. Or with the mandatory demands. The nuances of the rules haven’t been fully litigated, especially in every province. So the information hasn’t been disseminated from the courts to the police. That’s my two sets.