Law on Drinking & Driving

1. Law on Drinking & Driving ADVANCED PATROL TRAINING

2. Definitions:Standard Field Sobriety Testing Officer: -Front line officer (4 day course with two practical workshops and a written final exam with 80% pass mark)-Authorized to demand roadside physical coordination testsDrug Evaluation Officer:means a peace officer who is qualified under the regulations to conduct evaluations under subsection (3.1)

3. Drug Evaluation Officer • Drug Evaluation Officer: • that is fully certified and accredited by the International Association Chiefs Of Police (IACP) Authorized to Demand physical tests at station or roadsideAuthorized to Demand oral fluids, urine, blood or saliva. (Choice of DRE) Currently demanding Urine Samples12 step process – one step is approved instrument (intoxilyzer) to rule out alcohol.

4. Definitions:Reasonable Grounds to Believe:Equivalent to Reasonable GroundsReasonable Grounds to Suspect:Equivalent to Reasonable SuspicionLicence Suspension:The 3,7,30 day licence suspension replaced the 12 hour suspension. (Effective May 1, 2009) 3 days suspension: recorded7 days suspension: remedial measures course30 days suspension: remedial measures course, ignition interlock for 6 months

5. Section 253(1) (a) (b) Replaces 253 (a) (b) (no wording changes)Every one commits an offence who operates a motor vehicle or vessel or operates or assists in the operation of an aircraft or of railway equipment or has the care or control of a motor vehicle, vessel, aircraft or railway equipment, whether it is in motion or not,(a) while the person's ability to operate the vehicle, vessel, aircraft or railway equipment is impaired by alcohol or a drug; or(b) having consumed alcohol in such a quantity that the concentration in the person's blood exceeds eighty milligrams of alcohol in one hundred millilitres of blood.

6. Replaces 254(3) - Demand for breath and blood (alcohol only)If a police officer has reasonablegrounds to believe that a person is committing, or at any time within the preceding three hours has committed, an offence under 253 as a result of the consumption of alcohol, the peace officer may, by demand as soon as practical, require the personto provide, as soon as practicable(i) samples of breath that, in a qualified technicians’ opinion, will enable a proper analysis to be made to determine the concentration, if any, of alcohol in the person’s blood. orif the peace officer has reasonable grounds to believe that, because of their physical condition, the person may be capable of providing a sample of breath or it would be impracticable to obtain a sample of breath, samples of blood that, in the opinion of a qualified technician taking the samples, will enable a proper analysis to be made to determine the concentration, if any, or alcohol in the person’s blood; andif necessary, to accompany the peace officer for that purpose.Note: “Forthwith” is deleted from the time in which the demand must be made. Replaced by “as soon as practicable”.

7. 254(3.1) New Section If a peace officer has reasonable grounds to believe that a person is committing , or at any time within the preceding three hours has committed, an offence under paragraph 253 (1)(a) as a result of the consumption of a drug or a combination of alcohol and a drug, the peace officer may, by demand made as soon as practicable, require the person to submit, as soon as practical, to an evaluation conducted by an evaluating officer to determine whether the person’s ability to operate a motor vehicle, a vessel, an aircraft or railway equipment is impaired by a drug or by a combination of alcohol and a drug, and to accompany the peace officer for that purpose.(3.2) For greater certainty, a peace officer may make a video recording of an evaluation referred to in subsection (3.1).

8. Example Drug Demand:I demand that you submit to an evaluation conducted by an evaluating officer to determine whether your ability to operate a motor vehicle is impaired by a drug or a combination of a drug and alcohol, and that you accompany me for this purpose. Do you understand?Note:Front Line officers have the authority to arrest Impaired Drivers for drugs provided you meet the requirements in 254(3.1) - read the drug demand (as listed above)The impaired driver is taken to the station and brought before a Drug Evaluating Officer for further tests.

9. Section 254(2) (Physical Roadside Tests) (Approved Screening Device)If a peace officer has reasonable grounds to suspect that a person has alcohol or a drug in their body and that the person has, within the preceding three hours, operated a motor vehicle or vessel, operated or assisted in the operation of a aircraft or railway equipment or had the care and control of a motor vehicle, a vessel, an aircraft or railway equipment, whether it was in motion or not, the peace officer may, by demand, require the person to comply with paragraph (a), in the case of a drug, or with either or both of paragraphs (a) and (b), in the case of alcohol:a) to perform forthwith physical coordination tests prescribed by regulation to enable the peace officer to determine whether a demand may be made under subsection (3) or (3.1) and, if necessary, to accompany the peace officer for that purpose; and

10. Screening Device • b) to provide forthwith a sample of breath that, in the peace officer’s opinion, will enable a proper analysis to be made by means of an approved screening device and, if necessary, to accompany the peace officer for that purpose

11. This broadens the use of the Approved Screening Device (ASD) to allow (within the preceding three hours). Officers will require reasonable suspicion of alcohol in their body when investigating at roadside, but also suspect that the driver was operating or had care and control within the proceeding three hours. Note: Section 254 (2) (a) is the first stage of Drug Testing. All Peace Officers are allowed to give the SFST demand, but only SFST officers are allowed to conduct the Physical Coordination Tests

12. 254 (2.1) For greater certainty, a peace officer may make a video recording of a performance of a physical coordination tests referred to in paragraph (2)(a)Example Drug and Breath Demand for (SFST)I demand that you perform physical coordination tests and that you accompany me for the purpose of performing such tests. Do you understand?The 2nd phase generally occurs when a driver fails the physicalcoordination tests at the roadside. There is no requirement to conduct SFST testing if reasonable grounds exist for an officer to arrest a driver for impaired by drugs and make the drug evaluation demand. The impaired driver is brought into the station and brought before a Drug Recognition Expert –DRE (evaluating officer) for further tests.

13. Drug Recognition Expert at Station254(3.2)For greater certainty, a peace officer make a video recording of an evaluation as referred to in subsection (3.1)The DRE will conduct a 12 step Drug Recognition Exam.Driver Fails examination, DRE authorized to demand bodily fluid – currently urineDRE also allowed to demand breath into approved instrument as per 254(3.3)Bodily Fluid sent to Centre of Forensic Sciences (CFS) for testing.NOTE:Currently there is no ADLS or 3,7,30 day suspension authority under the Impaired Drug Laws.

14. Blood Samples:254(4)Samples of blood may be taken froma person under subsection (3) or (3.4) only by or under the direction of a qualified medical practitioner who is satisfied that taking the samples would not endanger the persons life or health.Failure or refusal to comply with demand:254(5)Everyone commits an offence who, without reasonable excuse, fails or refuses to comply with a demand made under this section.

15. Questions and Answers1. I arrest an Impaired Driver as a result of drugs alone with no evidence of alcohol, may I make a demand for the driver to accompany me to the station and be tested by a DEO officer? Yes Demand (Drug RecognitionEvaluation - reasonable grounds to believe of impairment by drug or combination of drug and alcohol) Section 254(3.1):I demand that you submit to an evaluation conducted by an evaluating officer to determine whether your ability to operate a motor vehicle is impaired by a drug or a combination of a drug and alcohol, and that you accompany me for this purpose. Do you understand?

16. 2. I stopped a motor vehicle and smell an odour of alcohol on the driver’s breath but do not have grounds for impairment, An Approved Screening (ASD) device is not available. Can I make a demand and have an SFST officer attend to do the physical coordination tests? Yes – SFST demand may be given to accused by any peace officer 3. I stopped a driver and do not smell alcohol, however, the driver admits to taking prescription pills for pain. I do not have enough evidence to arrest the driver for Impaired Driving; Can I make a demand and have an SFST officer attend to do the physical coordination test? Yes – SFST demand may be given by any peace officer – however the physical coordination tests must be done by a SFST officer.

17. 4. I have seen an SFST officer administer the physical coordination tests on a number of occasions. If the driver volunteers to do the physical tests, may I use the same tests as the SFST officer to form my grounds and make an arrest and demand for (A) alcohol? (B) Drug? No, the test battery is set out in the Regulations of the Criminal Code. The test battery has very specific instructions and officers have to be trained to interpret the cues and clues required for them to determine if a subject has successfully or unsuccessfully performed the test battery. Untrained officers have no idea how to interpret these clues or how to demonstrate the required test battery properly.

18. 5. I have used the same physical roadside tests on drinking drivers for the past 20years. I.e. walking heel to toe, pick up a coin from the roadway and state the alphabet backwards. Can I use my tests in order to form my grounds and make the arrest and demand? No, the physical coordination tests are set out in regulations as the test battery that will be used in Canada. The tests that are to be used are: Horizontal Gaze NystagmusWalk and Turn TestOne leg stand Only trained officers may use the tests as mentioned above.

19. 6. I stopped a motor vehicle and smell an odour of alcohol on the driver’s breath but do not have grounds for impairment, I do not have an ASD, but I give the approved roadside screening device demand and ask for an ASD to attend my location. How long do I have to wait until the ASD arrives before I‘m required to give rights to counsel and access to a telephone? The recommended waiting time is 5 to 8 minutes. 7. I stopped a motor vehicle and smell an odour of alcohol on the driver’s breath; my partner is an SFST officer. My partner makes the demand and conducts the physical coordination tests. The driver passes the physical tests. Can my partner demand an ASD test? If the SFST officer is still unsure after the driver performs the SFST tests then they can make an ASD demand. The officer must be able to articulate why he continued with the ASD test after the SFST tests. Cont’d…

20. Section 259(2) states or with either or both of paragraphs (a) and (b), in thecase of alcohol:(a) to perform forthwith physical coordinationtests prescribed by regulation to enablethe peace officer to determine whether ademand may be made under subsection (3) or(3.1) and, if necessary, to accompany thepeace officer for that purpose; and(b) to provide forthwith a sample of breaththat, in the peace officer’s opinion, willenable a proper analysis to be made bymeans of an approved screening device and,if necessary, to accompany the peace officerfor that purpose.

21. 8. My accused was arrested for impaired driving and given the alcohol only demand... The intoxilyzer readings were 40 mgs. If a DRE officer is working and there are reasonable grounds to believe impairment by drugs is the DRE officer allowed to make a demand for physical tests? Yes 9. I arrest a driver for Impaired Driving. I can smell a faint odor of alcohol, but his physical appearance and demeanor indicate to me there may be drugs involved. Which demand do I use? The recommended practice would have you read the alcohol demand. If your drivers BAC is under 80 mgs. and the degree of impairment indicates further investigation, your DRE officer may make a demand for physical tests.

22. Care and Control • The Statutory Presumption 258 (1)(a) • Where it is proved that the accused occupied the seat or position ordinarily occupied by a person who operates a m/v ….the accused shall be deemed to have had care or control of the vehicle…unless the accused established that the accused did not occupy that seat or position for the purpose of setting the vehicle…. motion….

23. Care or Control (Presumption) • Applying the Presumption: • Officer locates driver sitting in the driver’s seat • R. v. Wren is irrelevant if presumption is not rebutted

24. Care or Control (Presumption) • Note the following : • driver in the drivers seat • driver sleeping or awake • seat reclined or in full upright position • location of legs and upper torso • brake lights illuminated- foot resting on brake • emergency brake on or off • Seat belt on or off

25. Care or Control (Presumption) • gear shift lever (park ,drive or neutral) • shoes on or off • engine running • engine compartment warm • location of vehicle( parking lot, highway, ditch) • has the driver left vehicle and re-entered • lights or accessories on • witnesses

26. Care and Control (Presumption) • Important Point: • What was the drivers intention, when the driver initially entered the car. • -statement from driver • -witnesses • -location of vehicle, highway, ditch, parking lot

27. Care or Control (Presumption) • R. v. Miller [2009] O.J. No. 2078 (S.C.J.) • Accused drove a short distance from the bar, pulls over and falls asleep. Conviction on appeal. The accused intent upon entering the vehicle was to drive. • R. v. Fleming 2007 ONCA [2004] O.J. No. 1848 (S.C.J.) [2002] O.J. No. 5223 (C.J.) • Accused was slumped towards the passenger side, but was occupying the driver’s seat. Although accused was asleep occupying drivers seat, he intended to drive when he woke up.- presumption applied but was not rebutted.

28. Care or Control • R. v. Ahunu-Kumi [2006] O.J. No. 2285 (S.C.J.) • His intention upon initial entry was to drive the vehicle home. The fact that the accused changed his mind, when the vehicle became inoperable, did not rebut the presumption.

29. Care or Control • R. v. Wren: (2000) • This court has made a determination that in order to establish care or control of a motor vehicle, the act or conduct of the accused in relation to that motor vehicle must be such that there is created a risk of danger, whether from putting the car in motion or in some other way. The court’s conclusion was that Mr. Wren did not intend to put his vehicle, which was inoperable, in motion, therefore was not guilty of the charge.

30. Care or Control • Types of Risks: • R. v. Ferguson (2005) 15 M.V.R.( 5th) 74 (Ont. S.C.J.) • There are 3 risks when an impaired person uses a motor vehicle for a non- driving purpose. • the vehicle will be unintentionally be set in motion • through negligence, a stationary or inoperable vehicle may endanger the individual or others ( ie: an act by the accused that may create a risk) • the person will change his/her mind and drive the vehicle.

31. Care or Control • R. v. Banks (2009) ONCA 482 • Officers found accused standing outside of undamaged vehicle stuck in a 5 foot ditch. Tow truck was on scene. Trial judge found accused did not relinquish care or control and there was a risk she would continue when her vehicle was extricated from the ditch by the tow truck. Summary Conviction Appeal Judge disagreed, this conclusion was speculative and not proven beyond a reasonable doubt. Conviction restored by Court of Appeal

32. Care or Control • R. v. Daines [2005] O.J. No. 4046 (C.A.) • Due to the accused extreme impairment, there was a risk the accused would wake up change his mind and drive away. Conviction upheld.

33. Care or Control • R. v. MacMillan [2005] O.J. No. 1905 (C.A.) • Accused was asleep in the driver’s seat. The vehicle was located half in the driveway and half in the snow bank. The engine was running the lights were on and a tow truck had been called. Risk of danger based on the possibility that once the tow truck pulled the vehicle from the snow bank the accused would continue to drive.

34. Care or Control • Motor Vehicle Inoperable and Unable to Move Do we give up hope “NO”

35. Care or Control • R. v. McBrine [2007] O.J. 142 (CA) • Accused drove off roadway into a stone gate post at the entrance to a private driveway, causing extensive damage to vehicle. Motor Vehicle is a write-off and not driveable although engine is able to run. Accused tried to drive away. Convicted on the following actions: • spinning tires could cause debris to hit someone or shift vehicle • trying to persuade other motorists to assist him to free vehicle • his proximity to vehicle and his clear intention to resume driving if he was able to do so showed there was no abandonment of care or control

36. Care or Control • R. v. Magagna (2003) 173 CCC (3d) 188 (Ont.C.A.) • Accused was found trying to remove his motor vehicle that had landed on a fence. Risk accused would drive once the vehicle was removed from the fence.

37. Care or Control • R. v. Kim (2003) 44 M.V.R. (4th) 247 (Ont.S.C.J.) • Accused friend drove into a concrete island. M/V had extensive damage and a bent front wheel. The driver goes for help. Accused sits in drivers seat and passes out. Accused found slumped over the steering wheel, keys in ignition, engine off. M/V capable of moving a short distance. Conviction based on the risk the accused could have awakened and tried to move vehicle to a safer location