Screening Device Demand – Roadside Investigation (a Review)

R. v. Orbanski (2005) S.C.J. No. 37 – Both the common law and provincial highway legislation empower police to investigate drivers for impaired driving. Evidence obtained from compelled sobriety tests or questioning of the driver before the detainee has any access to counsel is a reasonable limit of the right to counsel as it only goes to the officer’s grounds to make a s. 254 demand. That compelled evidence may not be used to incriminate the accused at trial.  === The limited use of roadside evidence obtained from compelled sobriety tests or statements does not apply to other observations the officer might make of a driver. An officer may observe signs of impairment in a driver, such as a strong odour of alcohol, bloodshot and glassy eyes, dilated pupils, slurred speech, unsteadiness of gait upon the driver exiting the vehicle, or other similar signs. These observations would be admissible at trial to prove impairment.

R. v. Lotozky (2006) O.J.  No. 2516 === Police officers who have reasonable grounds to suspect that a motorist is impaired are entitled to walk onto that person’s driveway to further their investigation. The entrance onto the driveway is permitted by the implied licence doctrine. If the officers are not asked to leave before they form grounds to make a screening demand or arrest the accused, then there is no violation of s. 8 of the Charter. Note that the court distinguishes between entry onto the driveway and entry into a dwelling house.

R. v. Padavattan (2007) O.J.  No. 2003 === “The clear language of the statute requires that the officer making a demand under s. 254(2) of the Code must have formed the reasonable suspicion and must also form an opinion as to the sufficiency of the breath samples provided. As well, an officer who makes the demand may require the subject to accompany him for the purpose of the test. However, where these requirements are satisfied, there is nothing in the language of s. 254(2), that expressly or by implication precludes the ASD test being administered by another officer. Nor is there any requirement that this other officer form the reasonable suspicion before administering the ASD test.”

R. v. Laroche (2005) J.Q.  No. 9117 === The law does not require only one particular form of the demand. A demand is sufficient as long as the words used and the circumstances in which the demand is made indicate to the accused that a demand is being made that he or she provide a sample of their breath and that in default he or she will be charged with refuse.

R. v. Foster (1999) O.J.  No. 5060 === In a refuse case, the Crown must prove that the screening device demand was unequivocal. The Crown must also show that the accused either wilfully refused to comply or unequivocally expressed an intention to refuse to comply. Where the officer made a demand, then delayed the test in order to set up the device, there was no request in the demand for immediate compliance. Nor was there evidence in this case of an unequivocal refusal.

R. v. Snow (2001) N.J.  No. 359 === A peace officer must explain to the accused the procedure of providing a sample of breath in a sufficiently clear way as to enable the accused to understand what he has to do. Under normal circumstances a demand made upon an accused but not communicated properly to him will not satisfy the requirements of s. 254(2) of the Criminal Code. A peace officer is required to clearly explain to an accused in a comprehensible and timely manner the procedure that must be followed to provide a sample of breath for analysis by a roadside screening device. The explanations of the peace officer should be directed to the accused personally (except in the case of an interpreter) and should be orderly and in a logical sequence. This will allow the maximum opportunity for the explanation to be received, understood and actually comprehended by the accused. The explanation must be clearly understood, the accused must know what is being required of him and when it is required.

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Filed under Impaired Driving, Worthy of a Review

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