Ontario

Legislation Sections Database at defencecounsel.com for:

DUI Procedure/Evidence

Alcohol Drug Evaluation Demand and Screening Procedure

Criminal Code of Canada

Section number:

254(3.1)

Alcohol Drug Evaluation Demand and Screening Procedure

(3.1) If a peace officer has reasonable grounds to believe that a person is committing, or at any time within the preceding three hours has committed, an offence under paragraph 253(1)(a) as a result of the consumption of a drug or of a combination of alcohol and a drug, or has committed an offence under subsection 253(3), the peace officer may, by demand made as soon as practicable, require the person

(a) to submit, as soon as practicable, to an evaluation conducted by an evaluating officer to determine whether the person�s ability to operate a motor vehicle, a vessel, an aircraft or railway equipment is impaired by a drug or by a combination of alcohol and a drug, and to accompany the peace officer for that purpose; or

(b) to provide, as soon as practicable, the samples of blood that, in the opinion of the qualified medical practitioner or qualified technician taking the samples, are necessary to enable a proper analysis to be made to determine the person�s blood drug concentration, or the person�s blood drug concentration and blood alcohol concentration, as the case may be, and to accompany the peace officer for that purpose.

Marginal note:Video recording

(3.2) For greater certainty, a peace officer may make a video recording of an evaluation referred to in subsection (3.1).

Marginal note:Testing for presence of alcohol

(3.3) If the evaluating officer has reasonable grounds to suspect that the person has alcohol in their body and if a demand was not made under subsection (3), the evaluating officer may, by demand made as soon as practicable, require the person to provide, as soon as practicable, a sample of breath that, in the evaluating officer�s opinion, will enable a proper analysis to be made by means of an approved instrument.

Marginal note:Samples of bodily substances

(3.4) If, on completion of the evaluation, the evaluating officer has reasonable grounds to believe that the person�s ability to operate a motor vehicle, a vessel, an aircraft or railway equipment is impaired by a drug or by a combination of alcohol and a drug, the evaluating officer may, by demand made as soon as practicable, require the person to provide, as soon as practicable,

(a) a sample of either oral fluid or urine that, in the evaluating officer�s opinion, will enable a proper analysis to be made to determine whether the person has a drug in their body; or

(b) samples of blood that, in the opinion of the qualified medical practitioner or qualified technician taking the samples, will enable a proper analysis to be made to determine whether the person has a drug in their body.

Marginal note:Admissibility of evaluating officer�s opinion

(3.5) An evaluating officer�s opinion relating to the impairment, by a drug of a type that they identified, or by a combination of alcohol and that drug, of a person�s ability to operate a motor vehicle, vessel, aircraft or railway equipment is admissible in evidence without qualifying the evaluating officer as an expert.

Marginal note:Presumption � drug

(3.6) If the analysis of a sample provided under paragraph (3.4)(b) demonstrates that the person has a drug in their body that is of a type that the evaluating officer has identified as impairing the person�s ability to operate a motor vehicle, vessel, aircraft or railway equipment, that drug � or, if the person has also consumed alcohol, the combination of alcohol and that drug � is presumed, in the absence of evidence to the contrary, to be the drug, or the combination of alcohol and that drug, that was present in the person�s body at the time when the person operated the motor vehicle, vessel, aircraft or railway equipment and, on proof of the person�s impairment, to have been the cause of that impairment.

Marginal note:Condition

(4) Samples of blood may be taken from a person under subsection (3) or (3.4) only by a qualified medical practitioner, or a qualified technician, who is satisfied that taking the samples would not endanger the person�s life or health.

A Federal Government Regulation defines the protocol for Standardized Field Sobriety Tests pursuant to this section (Evaluation of Impaired Operation (Drugs and Alcohol) Regulations):

1. An evaluating officer must be a certified drug recognition expert accredited by the International Association of Chiefs of Police.

2. The physical coordination tests to be conducted under paragraph 254(2)(a) of the Criminal Code are the following standard field sobriety tests:

(a) the horizontal gaze nystagmus test;

(b) the walk-and-turn test; and

(c) the one-leg stand test.

3. The tests to be conducted and the procedures to be followed during an evaluation under subsection 254(3.1) of the Criminal Code are

(a) a preliminary examination, which consists of measuring the pulse and determining that the pupils are the same size and that the eyes track an object equally;

(b) eye examinations, which consist of

(i) the horizontal gaze nystagmus test,

(ii) the vertical gaze nystagmus test, and

(iii) the lack-of-convergence test;

(c) divided-attention tests, which consist of

(i) the Romberg balance test,

(ii) the walk-and-turn test referred to in paragraph 2(b),

(iii) the one-leg stand test referred to in paragraph 2(c), and

(iv) the finger-to-nose test, which includes the test subject tilting the head back and touching the tip of their index finger to the tip of their nose in a specified manner while keeping their eyes closed;

(d) an examination, which consists of measuring the blood pressure, temperature and pulse;

(e) an examination of pupil sizes under light levels of ambient light, near total darkness and direct light and an examination of the nasal and oral cavities;

(f) an examination, which consists of checking the muscle tone and pulse; and

(g) a visual examination of the arms, neck and, if exposed, the legs for evidence of injection sites.

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