Ontario

Legislation Sections Database at defencecounsel.com for:

DUI Procedure/Evidence

Approved Screening Device or Physical Tests Demand

Criminal Code of Canada

Section number:

254 (2)

Approved Screening Device or Physical Tests Demand

Testing for presence of alcohol or a drug

(2) 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, operated or assisted in the operation of an aircraft or railway equipment or had the care or control of a motor vehicle, a vessel, an aircraft or railway equipment, the peace officer may, by demand, require the person to comply with the requirements of either or both of paragraphs (a) and (c), in the case of a drug, or with the requirements of either or both of paragraphs (a) and (b), in the case of alcohol:

(a) to perform forthwith physical coordination tests prescribed by regulation to enable the peace officer to determine whether a demand may be made under subsection (3) or (3.1) and, if necessary, to accompany the peace officer for that purpose;

(b) to provide forthwith a sample of breath that, in the peace officer's opinion, will enable a proper analysis to be made by means of an approved screening device and, if necessary, to accompany the peace officer for that purpose; and

(c) to forthwith provide a sample of a bodily substance that, in the peace officer's opinion, is necessary to enable a proper analysis to be made by means of approved drug screening equipment and to accompany the peace officer for that purpose.

Marginal note:Video recording

(2.1) For greater certainty, a peace officer may make a video recording of a performance of the physical coordination tests referred to in paragraph (2)(a).

Approved Screening Device Demand, Issues include: "reasonably suspects", "is operating", "has the care or control", "has alcohol in the person's body", "forthwith", "approved screening device", search and seizure of breath, right to counsel subject to s. 1 of the Charter of Rights, see also refusal offence s. 254(5)

If a police officer suspects impairment by drugs the officer(s) will follow a multi-staged protocol that is quite complex. Ask your lawyer to review whether or not the officer(s) followed the detailed protocol correctly.

In cases involving alcohol alone, the officer needs only a reasonable suspicion that you have alcohol in your body before he or she can lawfully demand that you provide a roadside screening sample into an approved screening device. Mere admission of alcohol consumption and the smell of an alcoholic beverage on your breath is usually enough to justify an ASD demand.

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