Suppose police arrest you for driving under the influence (DUI) of alcohol or drugs in the Greater Toronto Area. In that case, you will likely undergo a series of procedures that police utilize to ensure the arrest is executed correctly and does not violate your Charter Rights. While no two DUI arrests are alike, the standard methods used by police apply to most scenarios involving suspected impaired drivers. That said, when a suspected impaired driver has been involved in a fatal or injury-causing collision, police may modify procedures due to the emergency situation. In particular, police may need to deviate from standard practices in their assessment and testing for impairment.
With more than 30 years of providing DUI defence services to Greater Toronto Area clients, the criminal defence DUI lawyers at Mass Tsang know all about police procedures and what their clients face while being arrested for DUI. This article will highlight the standard practices used by police while making DUI arrests. If you’ve been arrested for DUI and believe that police did not follow these standard procedures, you may have grounds to challenge the validity of the arrest. A competent DUI lawyer, such as those at Mass Tsang, can assess your case’s arrest process and other elements to determine the best options for an effective defence.
Reasons for the Initial Police Interaction
Due to 2018 revisions to Canada’s Criminal Code, police do not have to suspect impairment before stopping a vehicle and can legally conduct spot checks for impaired drivers. In general, though, initial police interactions that lead to a DUI arrest occur for the following reasons:
Roadside and moving checkpoints
Police witnessing suspected impaired driving
Pulling drivers over for other motor vehicle violations
Concerned citizen reports of a suspected impaired driver
Motor vehicle accidents
Except for motor vehicle accidents, the initial interaction typically begins with the police informing you of the reason for the stop and a request for your driver’s license, registration, and insurance. The officer may ask you whether you have had anything to drink or have consumed drugs, but you are under no legal obligation to answer. While your refusal to answer such questions may raise the officer’s suspicions, at this juncture, anything you say can be used against you as evidence if you are arrested.
Roadside Screening for Alcohol and Drugs
During this initial interaction, the officer is undoubtedly monitoring your appearance, speech, physical movements, and any potential scent of alcohol (or cannabis) to determine possible impairment. No matter their assessment, they can legally demand a roadside breath-screening test sample for alcohol or a saliva sample for drug impairment (though the latter are not yet widely used in Ontario).
Anyone who refuses to submit to roadside screening is subject to immediate arrest for the DUI charge of refusing to provide a breath or saliva sample, which carries the same outcome as other DUI charges upon conviction. If roadside screening detects alcohol blood-level concentrations exceeding 80 milligrams of alcohol in 100 millilitres of blood, you will be arrested for DUI. Likewise, should roadside drug screening detect concentrations of specific drugs. Roadside screening that detects alcohol blood-level concentrations between 50 and 80 milligrams of alcohol subjects the driver to an administrative warning that comes with an immediate three-day driver’s license suspension and a $250 fine.
If the officers do not have access to a screening device, they can request that you perform a standardized field sobriety test (SFST), consisting of an eye examination and a series of physical tests to assess coordination. Based on that result and other observations, police can either arrest you for impaired driving or allow you to go on your way.
Once You Are Arrested
When police arrest you for impaired driving, they must explain the reason for your arrest and inform you of your right to speak to a lawyer. They have the right to search you and to perform a cursory search of your vehicle and will likely place you in handcuffs before transporting you to the police station for further testing. You continue to have the right to remain silent, and the lawyers of Mass Tsang suggest you take advantage of this right until you have spoken to one.
Once you are at the police station, police will demand that you submit to further testing that can involve:
Bodily fluid testing
Evaluation by a drug recognition expert
Police should advise you of your right to speak to an attorney before testing and let you talk to duty counsel if you do not have a lawyer. When invoking this right, police must allow you to speak to a lawyer in private.
If you refuse to submit to further testing, police will charge you with DUI based on this refusal if they haven’t already charged you with that for a roadside refusal. If the testing indicates impairment above legal thresholds, you will be charged accordingly — DUI based on over 80-plus mgs, Impaired driving by drugs, or both if warranted. If you pass the testing, police have the option to charge you with impaired driving DUI based on physical evidence and observations that your ability to operate a motor vehicle safely was compromised by alcohol or drugs. This charge is generally harder to prove in court unless police have strong evidence, such as a witness willing to testify that you downed 12 shots of tequila before driving home.
Key Protocols Police Must Follow for Alcohol and Drug Testing
Timing plays a critical role in legal protocols dictating proper breath or blood screening at the roadside and police station. Police cannot detain drivers for an unreasonable amount of time while waiting for the arrival of a roadside screening device from another officer. They also must conduct breathalyzer and blood tests at the police station within three hours of the driver being behind the wheel and two hours of the initial detainment. At the police station, two breathalyzer tests must be successfully conducted within 15 minutes of each other. Screening devices must be maintained and operated by a qualified technician, and trained and certified drug recognition experts must conduct drug recognition evaluations.
You’re Free to Go When….
Once police process your arrest by filling out the necessary legal forms, they have the option to release you on an “Undertaking to a Peace Officer,” which is a form you sign that promises your appearance in court. In general, police release DUI defendants when their level of impairment does not represent a threat to themselves or the public and/or they have a ride home. If there are extenuating circumstances, such as other criminal charges, police may detain you until you undergo a bail hearing before a judicial official.
Arrested for DUI? — Contact Toronto’s Mass Tsang
If you’ve been arrested on DUI-related charges in the Greater Toronto Area, you need to secure the services of an expert criminal defence DUI lawyer to help avoid the severe penalties that come with a DUI conviction. The criminal defence lawyers of Mass Tsang have a decades-long record of developing winning DUI defence strategies. Schedule your free consultation by contacting Mass Tsang Today.