New impaired driving law means police can ask for breathalyzer test anywhere

By: Lisa Coxon on January 11, 2019

When we think of breathalyzer tests, we tend to think of someone inside a vehicle who’s either been pulled over on the side of the road or stopped during a ride program. But under revised federal law that came into effect December 2018, where and when police can demand breathalyzer tests has changed.

In an effort to curb impaired driving fatalities on the road, changes were made to Section 253 of the Criminal Code of Canada that have granted Canadian police the right to demand a breathalyzer test at any time for any reasons — including in bars, restaurants, and even people’s homes.

The revised law is being widely condemned in the legal field.

“We’re in a brave new world now,” Toronto criminal defence lawyer Michael Engel told Global News Toronto.

Under the revised impaired driving law, drivers can be charged even two hours after they’ve been on the road. To put that into perspective, Engel painted this picture: you drive home, plant yourself on the couch and have some beers while you watch the hockey game. Then you get a knock on the door from the police who say they received a tip about someone in your home who was driving a vehicle suspiciously. They could demand a breathalyzer test, and if you don’t provide one, you could be arrested.

Criminal defence lawyers say that while the public may have heard about the new law, the two-hour rule has gotten lost in the shuffle. “The public has completely missed this one,” Joseph Neuberger, a Toronto criminal defence lawyer, told Global News.  

It’s now up to drivers to prove they weren’t impaired earlier when they were driving.

“It’s ridiculous,” said Paul Doroshenko, a Vancouver criminal defence lawyer. “It’s basically criminalizing you having a drink at your kitchen table.”

Engel predicts the revised law could be abused, too, especially in domestic scenarios like, for instance, a couple going through a separation and one calls the police on their spouse out of spite.

“Husbands or wives in the course of separations would drop the dime on their partner,” Engel said.

It’s unclear what effect the new impaired driving law will have on cannabis impairment, though. Cannabis detection is still largely done using the standardized field sobriety test, as well as drug recognition expert evaluation.

One month after cannabis was legalized on Oct.17, 2018, Canadian police said they hadn’t seen an uptick in cannabis-impaired driving.

But that doesn’t mean they aren’t preparing for it. In November 2018, some police forces said they already had acquired or were planning to acquire the Drager DrugTest 5000, a roadside saliva test that. That test has received its fair share of criticism, though, for not being able to operate in temperatures below 4 degrees Celsius — a bit of a problem in Canadian winters.

Criminal defence lawyers are concerned that the revised impaired driving law subjects drivers to unfair arrests and prosecution. They expect this new law will be challenged through appeal courts and the Supreme Court of Canada. That, however, will likely take years.