Approved instrument: Difference between revisions
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The expression '''approved instrument''' is a Canadian term defined <ref>[http://laws.justice.gc.ca/en/ShowDoc/cs/C-46/bo-ga:l_VIII::bo-ga:l_IX//en?page=6&isPrinting=false#codese:254] Criminal Code of Canada section 254 (1)</ref> in the Criminal Code of Canada as: <blockquote>approved instrument means an instrument of a kind that is designed to receive and make an analysis of a sample of the breath of a person in order to measure the concentration of alcohol in the blood of that person and is approved as suitable for the purposes of section 258 by order of the Attorney General of Canada</blockquote> An approved instrument demand can be made whenever a police officer believes on reasonable and probable grounds that a person has committed an impaired or over 80 offence within the preceding 3 hours.<ref>[http://www.lawyers.ca/international/sectiondetail.asp?ID=3&state=Ontario] Criminal Code of Canada section 254(3)</ref> The approved instrument breath demand should be made by the same officer who formed the reasonable and probable grounds. In order for the instrument to be approved, it must be calibrated 15 days within the time of testing. All roadside test kits must be calibrated in Ontario. <ref>[http://www.lawyers.ca/private/Impaired2000/results.asp?ID=94] R. v. Pavel</ref>. The indicia of impairment leading to the formation of the reasonable and probable grounds must be apparent before or at the time the opinion is formed, not discovered ex post facto. <ref>[http://www.lawyers.ca/private/Impaired2000/results.asp?ID=82] R. v. Gavin</ref>. |
The expression '''approved instrument''' is a Canadian term defined <ref>[http://laws.justice.gc.ca/en/ShowDoc/cs/C-46/bo-ga:l_VIII::bo-ga:l_IX//en?page=6&isPrinting=false#codese:254] Criminal Code of Canada section 254 (1)</ref> in the Criminal Code of Canada as: <blockquote>approved instrument means an instrument of a kind that is designed to receive and make an analysis of a sample of the breath of a person in order to measure the concentration of alcohol in the blood of that person and is approved as suitable for the purposes of section 258 by order of the Attorney General of Canada</blockquote> An approved instrument demand can be made whenever a police officer believes on reasonable and probable grounds that a person has committed an impaired or over 80 offence within the preceding 3 hours.<ref>[http://www.lawyers.ca/international/sectiondetail.asp?ID=3&state=Ontario] Criminal Code of Canada section 254(3)</ref> The approved instrument breath demand should be made by the same officer who formed the reasonable and probable grounds. In order for the instrument to be approved, it must be calibrated 15 days within the time of testing. All roadside test kits must be calibrated in Ontario. <ref>[http://www.lawyers.ca/private/Impaired2000/results.asp?ID=94] R. v. Pavel</ref>. The indicia of impairment leading to the formation of the reasonable and probable grounds must be apparent before or at the time the opinion is formed, not discovered ex post facto. <ref>[http://www.lawyers.ca/private/Impaired2000/results.asp?ID=82] R. v. Gavin</ref>. |
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The ''Approved Breath Analysis Instruments Order''<ref>[http://www.lawyers.ca/international/students/discussiondetail.asp?Law=DUI&T1=Approved+Instrument&ID=86] Canada Regulations SI/92-105, s. 2; SI/92-167, s. 1; SI/93-61, s. 1; SI/93-175, s. 1; SOR/94-422, s. 1; SOR/94-572, s. 1; SOR/95-312, s. 1; SOR/2000-200, s. 1; SOR/2002-99, s. 1 </ref> establishes certain breath instruments as approved instruments for use in Canada. A breath instrument is commonly known in the United States as a [[breathalyzer]]. |
The ''Approved Breath Analysis Instruments Order''<ref>[http://www.lawyers.ca/international/students/discussiondetail.asp?Law=DUI&T1=Approved+Instrument&ID=86] Canada Regulations SI/92-105, s. 2; SI/92-167, s. 1; SI/93-61, s. 1; SI/93-175, s. 1; SOR/94-422, s. 1; SOR/94-572, s. 1; SOR/95-312, s. 1; SOR/2000-200, s. 1; SOR/2002-99, s. 1 </ref> establishes certain breath instruments as approved instruments for use in Canada. A breath instrument is commonly known in the United States as a [[breathalyzer]]. |
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Evidence of the results of subject tests using an approved instrument in the context of several conditions precedent presumptively becomes proof, in the absence of [[evidence to the contrary]], that the blood alcohol concentration at the time of the breath tests equals blood alcohol concentration at the time of the driving or care or control.<ref>[http://www.lawyers.ca/international/sectiondetail.asp?ID=6&state=Ontario] Criminal Code of Canada section 258 presumptions</ref> |
Evidence of the results of subject tests using an approved instrument in the context of several conditions precedent presumptively becomes proof, in the absence of [[evidence to the contrary]], that the blood alcohol concentration at the time of the breath tests equals blood alcohol concentration at the time of the driving or care or control.<ref>[http://www.lawyers.ca/international/sectiondetail.asp?ID=6&state=Ontario] Criminal Code of Canada section 258 presumptions</ref> |
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An '''approved screening device''' is a device used to measure the [[blood alcohol]] level of a suspected [[drunk driver]]. It is defined in the [[Criminal Code of Canada]] as: <blockquote>approved screening device means a device of a kind that is designed to ascertain the presence of alcohol in the blood of a person and that is approved for the purposes of this section by order of the Attorney General of Canada.<ref>[http://laws.justice.gc.ca/en/ShowDoc/cs/C-46/bo-ga:l_VIII::bo-ga:l_IX//en?page=6&isPrinting=false#codese:254] Criminal Code of Canada section 254 (1)</ref></blockquote> An approved screening device demand can be made whenever a police officer reasonably suspects that a motorist has alcohol in his or her body.<ref>[http://www.lawyers.ca/international/sectiondetail.asp?ID=2&state=Ontario] Criminal Code of Canada section 254(2)</ref> In Ontario, Canada police have a general power to stop drivers to check sobriety.<ref>[http://www.lawyers.ca/international/sectiondetail.asp?ID=41&state=Ontario] Ontario Highway Traffic Act section 48 and 216 (1)</ref> |
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The ''Approved Screening Devices Order''<ref>[http://www.lawyers.ca/international/students/discussiondetail.asp?Law=DUI&T1=approved+screening+device&ID=118] Canada Regulations SI/88-136, s. 1; SOR/93-263, s. 2; SOR/94-193, s. 1; SOR/94-423, s. 1; SOR/96-81, s. 1; SOR/97-116, s. 1 </ref> establishes certain devices as approved screening devices for use in Canada. These devices are commonly known as ''roadside testers'' or simply as an ''ASD''. In the United States they are known as a ''[[Breathalyzer|PBT]]'', which stands for preliminary breath test. |
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It is a criminal offence in Canada to refuse an approved screening device demand that has been lawfully made. Section 254(5) of the Criminal Code of Canada provides as follows: |
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<blockquote> |
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(5) Every one commits an offence who, without reasonable excuse, fails or refuses to comply with a demand made to him by a peace officer under this section.<ref>[http://www.lawyers.ca/international/sectiondetail.asp?ID=4&state=Ontario] Criminal Code of Canada section 254(5)</ref> |
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</blockquote> |
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Possible defences to this offence include challenges to the lawfulness of the demand. Sometimes a demand is unlawful because it is not made forthwith or sometimes the device in question is not used forthwith.<ref>[http://www.lawyers.ca/private/Impaired2000/issuesresults.asp?IssueNo=55] See particularly R. v. Woods</ref> The demand should be made by the same officer who formed the reasonable suspicion.<ref>[http://www.lawyers.ca/private/Impaired2000/results.asp?ID=94] R. v. Pavel</ref> Lack of an opportunity to speak to counsel prior to the screening device test is not a defence. <ref>[http://www.canlii.org/eliisa/highlight.do?text=Thomsen&language=en&searchTitle=Search+all+CanLII+Databases&path=/en/ca/scc/doc/1988/1988canlii73/1988canlii73.html] R. v. Thomsen</ref> The results of the screening device test can only be used to establish reasonable and probable grounds for the [[approved instrument]] demand, not for evidentiary purposes on the trial proper in Canada.<ref>[http://www.lawyers.ca/private/Impaired2000/issuesresults.asp?IssueNo=20] R. v. Coutts, R. v. Milne</ref> |
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The Crown generally discloses compliance by the police with standards by providing copies of maintenance and calibration records for the screening device.<ref>[http://www.lawyers.ca/international/serialnumber.asp?ID=83&associated=64%2D003699&serialnumber=ARRB%2D0827&serialnumberid=83] See R. v. Neil Campbell as well as notes respecting relevance of such disclosure</ref> Police are expected to wait 15 to 20 minutes to administer the test if they suspect alcohol is present in the suspect's mouth.<ref>[http://www.canlii.org/eliisa/highlight.do?text=Bernshaw&language=en&searchTitle=Search+all+CanLII+Databases&path=/en/ca/scc/doc/1995/1995canlii150/1995canlii150.html] R. v. Bernshaw</ref> |
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==See also== |
==See also== |
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==References== |
==References== |
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{{DEFAULTSORT:Approved Instrument}} |
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[[Category:Drunk driving]] |
[[Category:Drunk driving]] |
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Revision as of 18:39, 3 May 2012
The expression approved instrument is a Canadian term defined [1] in the Criminal Code of Canada as:
approved instrument means an instrument of a kind that is designed to receive and make an analysis of a sample of the breath of a person in order to measure the concentration of alcohol in the blood of that person and is approved as suitable for the purposes of section 258 by order of the Attorney General of Canada
An approved instrument demand can be made whenever a police officer believes on reasonable and probable grounds that a person has committed an impaired or over 80 offence within the preceding 3 hours.[2] The approved instrument breath demand should be made by the same officer who formed the reasonable and probable grounds. In order for the instrument to be approved, it must be calibrated 15 days within the time of testing. All roadside test kits must be calibrated in Ontario. [3]. The indicia of impairment leading to the formation of the reasonable and probable grounds must be apparent before or at the time the opinion is formed, not discovered ex post facto. [4].
The Approved Breath Analysis Instruments Order[5] establishes certain breath instruments as approved instruments for use in Canada. A breath instrument is commonly known in the United States as a breathalyzer.
It is a criminal offence in Canada to refuse an approved instrument demand that has been lawfully made. Section 254(5) of the Criminal Code of Canada provides as follows:
(5) Every one commits an offence who, without reasonable excuse, fails or refuses to comply with a demand made to him by a peace officer under this section.
The calibration of an approved instrument in Canada should be checked using a standard alcohol solution at a specific temperature using a simulator each time the operator of the approved instrument conducts a subject test.[6].
Evidence of the results of subject tests using an approved instrument in the context of several conditions precedent presumptively becomes proof, in the absence of evidence to the contrary, that the blood alcohol concentration at the time of the breath tests equals blood alcohol concentration at the time of the driving or care or control.[7]
Approved screening device
An approved screening device is a device used to measure the blood alcohol level of a suspected drunk driver. It is defined in the Criminal Code of Canada as:
approved screening device means a device of a kind that is designed to ascertain the presence of alcohol in the blood of a person and that is approved for the purposes of this section by order of the Attorney General of Canada.[8]
An approved screening device demand can be made whenever a police officer reasonably suspects that a motorist has alcohol in his or her body.[9] In Ontario, Canada police have a general power to stop drivers to check sobriety.[10]
The Approved Screening Devices Order[11] establishes certain devices as approved screening devices for use in Canada. These devices are commonly known as roadside testers or simply as an ASD. In the United States they are known as a PBT, which stands for preliminary breath test.
It is a criminal offence in Canada to refuse an approved screening device demand that has been lawfully made. Section 254(5) of the Criminal Code of Canada provides as follows:
(5) Every one commits an offence who, without reasonable excuse, fails or refuses to comply with a demand made to him by a peace officer under this section.[12]
Possible defences to this offence include challenges to the lawfulness of the demand. Sometimes a demand is unlawful because it is not made forthwith or sometimes the device in question is not used forthwith.[13] The demand should be made by the same officer who formed the reasonable suspicion.[14] Lack of an opportunity to speak to counsel prior to the screening device test is not a defence. [15] The results of the screening device test can only be used to establish reasonable and probable grounds for the approved instrument demand, not for evidentiary purposes on the trial proper in Canada.[16]
The Crown generally discloses compliance by the police with standards by providing copies of maintenance and calibration records for the screening device.[17] Police are expected to wait 15 to 20 minutes to administer the test if they suspect alcohol is present in the suspect's mouth.[18]
See also
References
- ^ [1] Criminal Code of Canada section 254 (1)
- ^ [2] Criminal Code of Canada section 254(3)
- ^ [3] R. v. Pavel
- ^ [4] R. v. Gavin
- ^ [5] Canada Regulations SI/92-105, s. 2; SI/92-167, s. 1; SI/93-61, s. 1; SI/93-175, s. 1; SOR/94-422, s. 1; SOR/94-572, s. 1; SOR/95-312, s. 1; SOR/2000-200, s. 1; SOR/2002-99, s. 1
- ^ [6] Alcohol Test Committee Recommended Standards and Procedures page 114
- ^ [7] Criminal Code of Canada section 258 presumptions
- ^ [8] Criminal Code of Canada section 254 (1)
- ^ [9] Criminal Code of Canada section 254(2)
- ^ [10] Ontario Highway Traffic Act section 48 and 216 (1)
- ^ [11] Canada Regulations SI/88-136, s. 1; SOR/93-263, s. 2; SOR/94-193, s. 1; SOR/94-423, s. 1; SOR/96-81, s. 1; SOR/97-116, s. 1
- ^ [12] Criminal Code of Canada section 254(5)
- ^ [13] See particularly R. v. Woods
- ^ [14] R. v. Pavel
- ^ [15] R. v. Thomsen
- ^ [16] R. v. Coutts, R. v. Milne
- ^ [17] See R. v. Neil Campbell as well as notes respecting relevance of such disclosure
- ^ [18] R. v. Bernshaw