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Criminal Code of Canada , section: 254 (2)
DUI Procedure/Evidence, Approved Screening Device or Physical Tests Demand
Where a peace officer reasonably suspects that a person who is operating a motor vehicle or vessel or operating or assisting in the operation of an aircraft or of railway equipment or who has the care or control of a motor vehicle, vessel or aircraft or of railway equipment, whether it is in motion or not, has alcohol in the person's body, the peace officer may, by demand made to that person, require the person to provide forthwith such a sample of breath as in the opinion of the peace officer is necessary to enable a proper analysis of the breath to be made by means of an approved screening device and, where necessary, to accompany the peace officer for the purpose of enabling such a sample of breath to be taken.
Effective July 2, 2008 the section is amended to read as follows:
(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, whether it was in motion or not, the peace officer may, by demand, require the person to comply with paragraph (a), in the case of a drug, or with 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; and
(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.
Comments : 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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|R. v. Bernshaw|
OntarioCriminal Code of Canada 254 (2) DUI Procedure/Evidence, Approved Screening Device or Physical Tests Demand