Breath testing, general - Section 48

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Breath testing, general - Section 48

by: admin on
Thu Jan 24, 2008 9:55 am

Breath testing, general - 48

(1) A police officer, readily identifiable as such, may require the driver of a motor vehicle or operator of a vessel to stop for the purpose of determining whether or not there is evidence to justify making a demand under section 254 of the Criminal Code (Canada). R.S.O. 1990, c. H.8, s. 48 (1); 2006, c. 20, s. 3 (1).

Licence suspension: screening device test

(2) Where, upon demand of a police officer made under section 254 of the Criminal Code (Canada), a person provides a sample of breath which, on analysis by an approved screening device as defined in that section, registers “Warn” or “Alert”, the police officer may request the person to surrender his or her driver’s licence. R.S.O. 1990, c. H.8, s. 48 (2); 1993, c. 40, s. 4 (1).

Idem: breathalyser test

(3) Where, upon demand of a police officer made under section 254 of the Criminal Code (Canada), a person provides a sample of breath which, on analysis by an instrument approved as suitable for the purpose of section 254 of the Criminal Code (Canada), indicates that the concentration of alcohol in his or her blood is 50 milligrams or more of alcohol in 100 millilitres of blood, a police officer may request the person to surrender his or her driver’s licence. R.S.O. 1990, c. H.8, s. 48 (3); 1993, c. 40, s. 4 (2).

Refusal to supply a breath sample

(4) Where a person is charged with an offence under section 254 of the Criminal Code (Canada) or any procedure is taken pending the laying of a charge to assure the person’s attendance in court on the charge, a police officer may request the person to surrender his or her driver’s licence. R.S.O. 1990, c. H.8, s. 48 (4).

Surrender of licence and suspension for twelve hours

(5) Upon a request being made under subsection (2), (3) or (4), the person to whom the request is made shall forthwith surrender his or her driver’s licence to the police officer and, whether or not the person is unable or fails to surrender the licence to the police officer, his or her licence is suspended and invalid for any purpose for a period of twelve hours from the time the request is made. R.S.O. 1990, c. H.8, s. 48 (5); 1993, c. 40, s. 4 (3).

Suspension concurrent with s. 48.3 suspension

(5.1) The licence suspension under this section runs concurrently with a suspension, if any, under section 48.3. 1996, c. 20, s. 7.

Second analysis

(6) Where an analysis of the breath of a person is made under subsection (2) and registers “Warn” or “Alert”, the person may require a further analysis to be performed in the manner provided in subsection (3), in which case the result obtained on the second analysis governs and any suspension resulting from an analysis under subsection (2) continues or terminates accordingly. R.S.O. 1990, c. H.8, s. 48 (6); 1993, c. 40, s. 4 (4).

Calibration of screening device

(7) For the purposes of subsection (2), the approved screening device shall not be calibrated to register “Warn” or “Alert” if the concentration of alcohol in the blood of the person whose breath is being analyzed is less than 50 milligrams of alcohol in 100 millilitres of blood. R.S.O. 1990, c. H.8, s. 48 (7); 1993, c. 40, s. 4 (5).

Idem

(8) It shall be presumed, in the absence of proof to the contrary, that any approved screening device used for the purposes of subsection (2) has been calibrated as required under subsection (7). R.S.O. 1990, c. H.8, s. 48 (8).

Intent of suspension

(9) The suspension of a licence under this section is intended to safeguard the licensee and the public and does not constitute an alternative to any proceeding or penalty arising from the same circumstances or around the same time. R.S.O. 1990, c. H.8, s. 48 (9).

Duty of officer

(10) Every officer who asks for the surrender of a licence under this section shall keep a written record of the licence received with the name and address of the person and the date and time of the suspension and, at the time of receiving the licence, shall return the Photo Card portion of the licence, if the licence consists of a Photo Card and Licence Card, and provide the licensee with a written statement of the time from which the suspension takes effect, the length of the period during which the licence is suspended, and the place where the licence or Licence Card portion thereof may be recovered. R.S.O. 1990, c. H.8, s. 48 (10).

Removal of vehicle

(11) If the motor vehicle of a person whose licence is suspended under this section is at a location from which, in the opinion of a police officer, it should be removed and there is no person available who may lawfully remove the vehicle, the officer may remove and store the vehicle or cause it to be removed and stored, in which case the officer shall notify the person of the location of the storage. R.S.O. 1990, c. H.8, s. 48 (11).

Cost of removal

(12) Where a police officer obtains assistance for the removal and storage of a motor vehicle under this section, the costs incurred in moving and storing the vehicle are a lien on the vehicle that may be enforced under the Repair and Storage Liens Act by the person who moved or stored the vehicle at the request of the officer. R.S.O. 1990, c. H.8, s. 48 (12).

Definitions, motorized snow vehicles

(13) In this section,

“driver’s licence” includes a motorized snow vehicle operator’s licence and a driver’s licence issued by any other jurisdiction; (“permis de conduire”)

“motor vehicle” includes a motorized snow vehicle; (“véhicule automobile”)

“vessel” means a vessel within the meaning of section 214 of the Criminal Code (Canada). (“bateau”) R.S.O. 1990, c. H.8, s. 48 (13); 2006, c. 20, s. 3 (2).

Note: On a day to be named by proclamation of the Lieutenant Governor, section 48 is repealed by the Statutes of Ontario, 2007, chapter 13, section 10 and the following substituted:


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