Confusion over new impaired driving legislation

Posted on January 30, 2019 by Taber Times

By Greg Price
Taber Times
gprice@tabertimes.com

Plenty of misinformation has been circulating around social media when it comes to changes to impaired driving legislation, and police forces across southern Alberta have been trying to set the record straight.

Just prior to the Taber/Vauxhall RCMP report to Barnwell village council earlier this month, Mayor Del Bodnarek asked Sgt. Gord Yetman about the issue, noting it’s been hard to sift through the huge amounts of information that has been seen on social media in separating fact from fiction.

“Before, you needed reasonable suspicion before (applying) the roadside screening device. In the past, we needed the odour of liquor on someone’s breath or admission of having consumed. Now, as part of a traffic stop, we can administer a roadside screening device test. There are many different versions floating out around there about the powers the new law give us,” said Yetman. “Some of it is factual, some of it is not entirely on the mark. The screening occurs during a lawful traffic stop. So if a person commits an offence contrary to the Traffic Safety Act or other similar statute, as a result of that stop, the officer who pulled the person over can administer a roadside screening device test.”

Bodnarek brought up a situation where he is driving down the street and not breaking any traffic laws and inquired if he would be randomly pulled over to do a roadside screening device test.

“Chances are, if you are driving down the road and you are not breaking any traffic laws, you are not going to get pulled over,” said Yetman.

That has been the biggest change to the impaired driving legislation, with Yetman adding there is confusion on how draconian law enforcement agencies will be in administering breathalyzer testing.

Paranoid posts of police randomly knocking on people’s doors at 2 a.m., or picking someone randomly out of the crowd at a restaurant to administer a test is just not going to happen, say RCMP.

“There are a lot of buts that have to occur before that happens. The most likely scenario is you get called out to something like a hit and run that occurs late at night. You follow the debris around the neighbourhood and you come to a house where the vehicle is parked in the driveway and the front end is destroyed and is leaking fluids,” said Yetman. “You’ve got some pretty strong evidence that this is where the vehicle went (from the hit and run). Then, you may be in a position that when your investigation leads you to this point, to conduct an impaired driving investigation. Information that is out there of us walking into bars and giving random roadside screening device tests, I have no idea where that is coming from.”

“That is an extremely loose, if not paranoid interpretation of the new law. There are some pretty hokey ideas floating around about civil rights. What we are looking at is a poor interpretation of the law and a lot of them are floating around.”

The Medicine Hat Police Service issued its own statement from MHPS Traffic Sgt. Clarke White on its Facebook page last week to clarify some of the confusion that was circulating around the changes to impaired driving legislation. The changes were mainly to help close loopholes that were found in drunk driving defences.

The following is an excerpt from the Medicine Hat Police Service’s Facebook page: With experienced counsel, a person accused of exceeding 0.08 could be acquitted of the charges based on two defenses known as Bolus drinking and Post-drinking.

Bolus drinking is when the accused claims to have consumed a significant amount of alcohol just prior to operating the vehicle and defends that their blood alcohol concentration had not yet had an opportunity to spike over the 0.08 at the time of driving.

It was argued that by the time an individual had arrived at the police station, contacted counsel and subsequently provided breath samples, which could be an hour or more afterwards, the blood alcohol concentration was now over 0.08.

This provided enough reasonable doubt that the accused did not have a blood alcohol concentration over 0.08 at the time of driving and he would be acquitted and escape criminal liability.

The post-drinking defense was often used when someone who was operating a motor vehicle while impaired by alcohol became involved in a collision, left the scene of the accident, went home or to a bar and began drinking alcohol excessively in an attempt to obstruct the police investigation. By the time the accused was located they had consumed alcohol and created the argument that they were sober at the time of the collision but became impaired within the short period of time between the collision and when located by police. Again this often created enough reasonable doubt that the accused would be acquitted and escape criminal liability.

The new “equal to or exceed 0.08” section in the Criminal Code is found in section 320.14(1)(b). It now reads that everyone commits an offence who has, within two hours after ceasing to operate a conveyance (motor vehicle), a blood alcohol concentration that is equal to or exceeds 80 mg of alcohol in 100mL of blood (0.08). Simply put, the only change to police procedures under the new law is that the time of the offence now becomes the time when the offender’s blood alcohol concentration is proven through breath samples, as opposed to the old law that had the offence occurring at the time that the accused was observed operating the motor vehicle. Also, remember that impaired driving is a separate offence that must be proven independently of that 0.08 charge. The offence time for the impaired driving charge remains the time that the accused is observed operating the motor vehicle.

What the recent media articles have failed to explain regarding this new law is that the Criminal Code has also sets out very specific requirements that must be considered prior to police continuing their impaired driving investigation of a person who has consumed alcohol after ceasing operation of a motor vehicle. These requirements are what address the concerns that so many have right now. They protect the people who had innocently consumed alcohol after driving their vehicle sober and had no expectation that police were seeking them.

In most impaired/exceed cases the police are first-hand witnesses to the accused operating the vehicle and maintain continuity of the accused from the moment they are first observed until the moment they have completed their breath samples. This continuity mitigates many of the issues with prosecuting these offences. But in other cases, such as driving complaints or collisions where police are relying on third-party information such as witnesses, the subsequent police investigation can be complex and police must be able to prove beyond a reasonable doubt that the accused was indeed operating the motor vehicle, that their ability to do so was impaired by alcohol and that their blood alcohol was equal to or exceeding 0.08. These elements still need to be proven under the new laws as they did with the old.

Frequently asked questions with responses by the Medicine Hat Police Service’s Sgt. Clarke White:

How does the new exceed 0.08 law change how police investigate impaired driving?

It doesn’t. The police will continue to investigate impaired driving the same way we always have. The new wording does not to give police authority to interfere with innocent people while they are having casual drinks just after operating a vehicle. The intent is not to force people to wait two hours after driving to start consuming alcohol. Instead, the new wording is designed to help with the rare cases where offenders attempt to obstruct the police investigation by consuming alcohol after driving.

Will police be coming into homes, restaurants and bars to conduct random breath tests on those who have just driven there, when there was no reasonable suspicion that they were drinking and driving?

Absolutely not! However, those who had been drinking and driving and are consuming alcohol in order to obstruct the police investigation may no longer be able to escape criminal liability with Bolus Drinking and Post-drinking defenses.
If police find you at your home or a bar while they are acting on reasonable suspicion that you were just driving while under the influence of alcohol, or fled the scene of a collision because you had alcohol in your body, can they demand a breath sample from you?

Absolutely, but this has always been the practice during a police investigation into a complaint of impaired driving.

Doesn’t the new law allowing police to demand a breath sample without suspicion mean that it’s going to be applied in this scenario?

No. Demanding a breath sample without suspicion, also known as Mandatory Alcohol Screening, only applies to people who are actively operating a motor vehicle during their encounter with police. This means that reasonable suspicion that the driver was operating a motor vehicle with alcohol in his body is still required in cases that police are following up on a complaint and find the driver in a home, establishment, etc.