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How does the NRP force get consent to give breathalizer??
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PostPosted: Wed Nov 14, 2012 4:32 pm 
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Just curious on how the Niagara Regional Police force has the authority to give you a breathalizer test if they think you are impaired???


Thanks...


K


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Re: How does the NRP force get consent to give breathalizer?
PostPosted: Wed Nov 14, 2012 5:00 pm 
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http://thelawdictionary.org/article/%E2 ... l-testing/


Does the same implied consent law in the US apply to Canada??


Thanks in advance..


K


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Re: How does the NRP force get consent to give breathalizer?
PostPosted: Wed Nov 14, 2012 8:05 pm 
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Kawja wrote:
Just curious on how the Niagara Regional Police force has the authority to give you a breathalizer test if they think you are impaired???


Thanks...


K


Criminal Code of Canada.


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Re: How does the NRP force get consent to give breathalizer?
PostPosted: Wed Nov 14, 2012 10:44 pm 
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To expand on on Paul1913's reply:

Criminal Code of Canada combined with the Ontario Highway Traffic Act.

The HTA gives a police officer the authority to stop a vehicle. One of the reasons they may stop a vehicle is to determine sobriety of the driver. The Criminal Code and HTA both set limits on how much alcohol a driver may have in their blood while driving.

If the officer has a "reasonable suspicion" that alcohol has been consumed, then they may demand (not seek consent) a breath sample from the driver in a roadside screening device (not the same as a breathalyzer, but similar). Depending on the reading of the roadside screening device, they may then form "Reasonable probable grounds to believe the driver has more than 80mgs/L of alcohol in their blood".

The Criminal Code usually takes over now and with the RPG they may make a demand (still not consent) for a breath sample in an approved instrument. While I don't know the legal or scientific difference between an instrument and a device, it is essentiall that the instrument is more reliable and more precise. Failure to provide the breath sample can lead to the charge of, surprise surprose, "Failing to provide a breath sample." That charge carries the same penalty as blowing over the legal limit, so theres not usually a good reason not to at least provide the sample, then let your lawyer argue the grounds to make the demand in the first place.

A little side note on suspicion, versus RPG. Suspicioun is anything that gives the officer a reason to think that you might have consumed some alcohol. If asked if you were drinking that night, and you say "one beer". He now has a suspicious that you consumed alcohol (you told him you did) and can make the breath demand for the roadside screening device. Suspician can also include odour, physical symptoms like bloodshot or watery eyes, flushed complection, slurred speach, wetting your pants, open alcohol, loss of balance, witness testimony, general disheveled appearance, eratic driving evidence, etc. Some indicia are stronger and can be taken on their own, while others are weaker and the officer may need more of them together. ie. not everyone with bloodshot eyes has been drinking. Combine the bloodshot eyes, slurred speech, and flushed complexion, and that may be sufficent for a reasonable suspician.


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