Imagine driving home from a hard day at work, pouring yourself a drink or two and then hearing a knock at the door more than an hour after you get home.
It’s the police.
They want a breath sample from you to prove that you did not drive home drunk.
Is this a realistic scenario?
That depends on who you talk to. Even the official Justice Canada Twitter account seems confused.
Earlier this month they tweeted and then deleted this statement.
“It’s summer time and the living is easy! Whether you’re sitting on a patio or having a backyard #BBQ, remember it’s against the #law to have a blood alcohol concentration over prohibited levels within two hours of driving. Know the limits.”
That tweet sent plenty of tongues wagging and conjured up images of cops showing up at your home two hours after you stopped driving to demand a breath sample. Justice Canada calls that scenario a myth but they aren’t fully honest with that statement, either.
Their first tweet was true and the new legislation is clear.
“Everyone commits an offence who has within two hours after ceasing to operate a motor vehicle … a blood drug concentration that is equal to or exceeds the blood drug concentration for the drug that is prescribed by regulation,” is how the Criminal Code now reads at Section 253.
So can police show up to your home and demand a breath sample? Yes.
Under Canada’s old drunk driving law, police needed to have reasonable grounds to ask you for a breath sample while you were driving. That no longer applies and they can demand one at any time.
If you are no longer driving though, they still need reasonable grounds to ask for a breath sample.View image on Twitter
CORRECTION: We wanted to clarify the facts around a tweet that was issued yesterday relating to the 2 hour rule under the new alcohol-#ImpairedDriving laws. These laws aim to keep our roads safer and save lives. Find out more here: http://ow.ly/qP3P30nCgpG 859:42 AM – Jul 6, 2019454 people are talking about thisTwitter Ads info and privacy
“If a peace officer has reasonable grounds to suspect that a person has alcohol or a drug in their body and that the person has, within the preceding three hours, operated a motor vehicle or vessel,” is how Section 254 of the Criminal Code explains when a sample can be requested.
It doesn’t matter if you are stopped at the side of the road or hours later at your home. If you refuse to provide a sample, you will be charged.
“If in court, you can prove that there weren’t any reasonable grounds, you win. Do you want to roll those dice?” said Ottawa defence lawyer Michael Spratt.
Spratt is one of the critics of this new law calling it unconstitutional because he says it, “forces law-abiding Canadians to prove their innocence.”
The Trudeau government was warned repeatedly at committee that their new law was against the Charter but they passed it anyway.
“For a government who campaigned on evidence-based policy, it was shocking that this unconstitutional, and unnecessary law saw the light of day,” Spratt said.
He says the new law allows for you to be charged and found guilty even if you only drank after you finished driving.