Approved screening device

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An approved screening device is a term used by the Canadian Criminal Code to describe a portable measuring instrument that a police officer can use to gather evidence related to blood alcohol content and the detection of the drunk driving offence of driving "over 80." If the police officer believes that a motorist has consumed alcohol prior to driving, the officer can make a demand for a breath sample to be tested by the approved screening device at the roadside.

The results of the screening device test are not admissible in court as proof of blood alcohol level. However, if the driver fails the screening device test, the officer can make a demand for a further test using an "approved instrument" at a police detachment which can be used to gather evidence that is admissible in a criminal prosecution.

Where the driver displays significant signs of impairment such as bad driving behaviour or physical signs of intoxication, the officer does not need to use the screening device, but rather can immediately demand for breath sample for testing by the approved instrument.

Criminal offence of driving "over 80"[edit]

Canada's criminal law creates two offences of drunk driving: driving while impaired by alcohol or a drug, and driving with a blood alcohol content greater than "eighty milligrams of alcohol in one hundred millilitres of blood," colloquially referred to as "over 80" or ".08" (i.e. "point-zero-eight").[1]

To gather evidence for the .08 offence, the Criminal Code provides for roadside screening, using an "approved screening device", and further testing if needed at a police detachment, using an "approved instrument", such as a breathalyzer.

Definition of "approved screening device"[edit]

An approved screening device is a portable instrument used in the field by a police officer, which is checked for accuracy at regular intervals.[2]

An approved screening device is defined in the Criminal Code 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.[3]

The Approved Screening Devices Order[4] establishes certain devices as approved screening devices for use in Canada. These devices are commonly known as roadside testers or simply as an ASD.

Demand for a breath sample for screening purposes[edit]

Under provincial laws regulating public highways, the police have a general power to stop drivers to check sobriety.[5] If a police officer stops a motorist and reasonably suspects that a motorist has alcohol in his or her body, the police officer can make a demand for a breath sample for testing in an approved screening device.[6]

When the police officer makes the demand for a breath sample for screening purposes, the motorist is to provide the sample "forthwith", i.e. immediately.[6] The Supreme Court of Canada has held that if the police officer fails to administer the test "forthwith", the screening test may be invalid.[7] However, the Court has also held that if there is reason to believe that the motorist has recently consumed alcohol, the alcoholic residue in the mouth could throw off the test results. In that case, the police are to wait 15 to 20 minutes to allow the alcohol to disperse from the motorist's mouth, ensuring an accurate test.[8]

If the motorist registers a "fail" on the approved screening device test, the police then have grounds to believe that the motorist has committed the offence of driving over .08. The police officer then may make a demand for a breath sample to be tested on an approved instrument,[9] such as a breathalyzer. The police then take the motorist to the police detachment for the test on the approved instrument. The results of that test are admissible in court to prove that the accused drove with a blood alcohol content of more than .08.[10]

Refusal to blow[edit]

It is a criminal offence to refuse a demand for a breath sample for testing in an approved screening device, provided the demand that has been lawfully made. The Criminal Code provides as follows:

254 (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.[11]

The penalties for refusing to provide a breath sample for testing in an approved screening device are the same as if the accused had been convicted of the offence of driving over .08.[12] This approach reduces the incentive on the motorist to refuse to provide a breath sample for screening purposes.

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.[7][13] The demand should be made by the same officer who formed the reasonable suspicion.[14]

Constitutional considerations[edit]

No immediate right to counsel[edit]

Section 10 of the Canadian Charter of Rights and Freedoms provides than anyone person who is detained has the right "to retain and instruct counsel without delay". However, when police officers make roadside screening demands, they generally do not allow the motorist to consult counsel. The Supreme Court has held that the wording of the Criminal Code authorising roadside screenings, which says the demand is to be made "forthwith" is a reasonable limit on the right to access counsel immediately. This finding was based on two points: (1) the results of the screening test are not admissible as evidence of driving under .08; (2) if the motorist fails the roadside test and are taken to the police detachment for testing with an approved instrument, the motorist will have the right to consult counsel before being tested with the approved instrument.[15]

Disclosure of maintenance records[edit]

The Crown is under a constitutional duty to disclose evidence in its possession which relates to a criminal charge, as part of the accused's right to make full answer and defence, guaranteed by s 7 of the Charter.[16] This duty of disclosure requires the Crown to provide copies of maintenance and calibration records for the screening device[17]

Licence suspensions under provincial law[edit]

In addition to the Criminal Code provisions, provincial laws regulating highway traffic usually provide that a motorist who fails the screening device can result in a temporary suspension of the driver's licence, even if no subsequent criminal charges are laid. The Supreme Court has held that provincial suspensions of this nature are within provincial constitutional jurisdiction.[18]

See also[edit]