Haggis said:
My understanding, based on Brihard's post, above, ant talking to a couple of breath techs at work is that reasonable grounds are no longer required to administer an ASD test at the roadside. The officer would still have to articulate his reasons for the stop (i.e. general enforcement/situational factors) but not the demand for the test.
Precisely. An officer who is in contact with a driver who is operating (to include care and control of) a vehicle, in the course of their duties (traffic stop, RIDE check, investigating an accident etc) can demand an Approved Screening Device (ASD- roadside breathalyzer) sample. That sample is NOT what leads to charges, but if you blow a 'fail', then you can be arrested or detained for more samples on an approved instrument that can lead to charges if you blow over on that.
Example: It's 1:30 A.M. on a Saturday morning, I see a car speeding and change lanes without signalling. I pull it over. There are several occupants leaving an entertainment area downtown, the driver says he's the DD, and does not admit drinking. I cannot smell alcohol off his breath. I have no objective suspicion of alcohl in his body. I can demand a roadside breath sample to verify sobriety. My traffic stop was legal exercise of my duties under the Highway Traffic Act, and now the Crim Code lets me do an ASD test.
Outside of the roadside context, an officer who wants to administer an ASD still needs reasonable suspicion that a person has operated a motor vehicle with alcohol in their body within the past three hours.
Example: I come upon the scene of a single vehicle accident. A car has left the road, struck a pole and is not driveable. The driver is outside of the vehicle. The driver is not 'operating' the vehicle at this time, I can't do mandatory alcohol screening without suspicion. A witness confirms for me that this is the person they saw exit the driver's seat at the time of the crash and that they've stayed on scene throughout. I ask the driver if they've had any alcohol. They say no, but I smell alcohol on their breath. I have reasonable suspicion that they've operated a motor vehicle with alcohol in their body in the last three hours. I can do a roadside ASD test. They provide a sample and blow a 'fail'. I now have reasonable grounds to believe that their ability to operate a conveyance is impaired by alcohol, and I can arrest and bring them back to the station for breath samples that could lead to charges.
Example: I get a tip about a vehicle leaving a bar mid day, the driver has been drinking, but no ID on the driver and the description is thin. I find the vehicle parked at a different location a few minutes later, and as I'm checking out the vehicle the driver comes out of a store. I talk to him, ask if he was at the bar and if he had any alcohol. He denies same. I don't have him operating the motor vehicle, and I don't have reasonable suspicion that he has alcohol in his body due to the vagueness of the tip. I cannot administer a roadside test.
Example: I get a call for a hit and run. A witness describes a certain vehicle and gives the license plate, and they describe the male they saw get out of the car, look at the damage, then get back in and leave. They describe him as unsteady on his feet. I run the license plate and get a home address. I get to the address and find a vehicle in the driveway. The tailpipe is warm. I knock on the door, and a male comes to the door. I tell him his car was involved in an accident and ask him to step outside to talk to me. He steps outside, I show him the damage and ask what happened. He said he doesn't know. I note that he has a smell of beverage alcohol on his breath and is a bit unsteady on his feet. He matches the description given. I have reasonable suspicion that he was operating a motor vehicle in the past three hours with alcohol in his body, and I can demand an ASD sample. Now, had he not come to the door, I can't force my way in. Had he opened the door but not stepped out I cannot force him to come outside. I have no new powers here.
Finally, if someone is clearly impaired, we don't need to do an ASD test roadside. If we already have reasonable grounds to believe they're impaired, we can go right to demanding breath samples at the police station, and that's what will determine charges. An ASD test is a mechanism that lets us turn 'reasonable suspicion' into 'reasonable grounds'. It gives us more evidence to work with, and helps to rule out other things that could cause symptoms resembling impairment.
The removal of 'reasonable suspicion' as a requirement for ASD tests roadside is the result of a lot of cases where someone is pulled over, blows an ASD fail, blows over 80 at the station, and is charged, but the case is ultiamtely thrown out because the judge determines that the police officer did not have sufficient grounds to demand the ASD test. 'Suspicion' isn't merely 'suspicion'. I had a tip of a vehicle leaving a bar, driver had been drinking. I found it 18 minutes later, the driver told me he "couldn't recall" if he had been at the bar and "couldn't recall" if he had consumed any alcohol. I couldn't smell anything on his breath it was windy outside. The complainant hadn't IDed the driver. If he'd just said 'Yeah I was there but I only had coffee", I would have let him go on his way. It was the BS answer of not remembering if he was just at a bar that caused me suspicion. I administered an ASD, he failed, and then he blew .120 or so at the station. I charged him with over 80. It got tossed in court because my suspicion was not deemed to be 'objectively reasonable. As much as it chafed, the judge was pretty kind to me in his written decision, and it was a correct decision under law at the time. But a drunk driver got off as a result.
The new laws remove that requirement, and turn the focus more back to the simple question of whether a driver was impaired or not. The mandatory roadside screenings also provide us a deterrent tool. We don't have to administer it at every traffics top, and we don't. I've used it maybe 5 or 6 times since the 18th. It's a great tool for testing novice drivers on probationary licenses who aren't allowed to have any BAC as well.
Unquestionably there are going to be errors and overreaches by individual police officers who maybe don't thoroughly understand what the new laws do and don't do. There will also be irresponsibly sloppy news stories that misrepresent what's going on, and there are a ton of people with vested interests who are happy to add their two cents. All in all though this is a tool that should significantly simplify and strengthen the detection and prosecution of impaired driving.
The true measure of the efficacy of a police service is not the crimes that are detected, but the crimes that never happen because they are deterred from happening in the first place. We will see both as a result of this. There have already been a number of people caught driving impaired who would have been undetected under the old system. Every one of these was a potential hazard to other people on the road.I look forward to a couple years from now when we have some solid data to back this up, as other countries do.