By Phillip Millar

Disclaimer: Drinking and Driving is a scourge on our society.  People who put themselves behind the wheel when they are drunk pose a tremendous danger to other citizens and need to be punished.

What to Do at a RIDE Program

You worked late on a new project or on the late shift, you had a drink a work before heading home you can’t wait to get some sleep.

As you turn the corner you see the flashing lights and police cruisers ahead. Your heart leaps to your throat as you come to realize that you are approaching a RIDE program. There are no outs, there is only straight ahead. Your hearts pounds, you look for gum, you fumble for your paperwork, you have no idea what to do…

It is terrifying for the average citizen. The question is…. What is going to happen and what do I do.

THE RIDE (Reduce Impaired Driving Everywhere) PROGRAM seeks to take drunk drivers off the streets. It does so by allowing the police to make a quick determination of your sobriety from the window of your car during a brief investigative detention at roadside.

Every citizen has or will drive through a RIDE program.

They are well lit, and manned by numerous police officers who wave drivers over with an illuminated wand and engage the drivers in a brief conversation.

CRUCIAL ISSUES

• What am I obliged to say?
• What am I obliged to do?
• How do I protect myself?

Perhaps you need a little background before we get to these questions. When the police speak to you there are looking for signs of impairment (alcohol consumption). Police are generally not allowed to interfere with your liberty without a good reason. If the police speak to you at a RIDE program and suspect you have been drinking they can demand you provide a Roadside Breath Sample.

We have all heard of the roadside screening devices, these are not breathalyzers, they are less precise machines police carry in their vehicles to help them determine your blood alcohol level. If police have a suspicion that you have consumed alcohol they can demand you provide a roadside sample. There are four possible results:

1. PASS,
2. FAIL
3. WARNING
4. ERROR

PASS

The is a result that reflects less than 50mg of alcohol per 100ml of blood. You are told to go on your way, Whew!!

WARNING

This is a result that reflect between 50-100mg of alcohol per 100ml of blood. The machine provides the driver a cushion above the legal limit of 80mg. A WARNING means that your car will be impounded for 3 days and your licence suspended for 5 days. This is highly controversial as you are essentially being punished without being able to defend yourself. The officer at roadside is judge and jury, your car is taken away at great expense and you are suspended without a trial

FAIL

Your sample has registered as having an alcohol content over 100 mg per 100ml of blood. You are under arrest. The officer has the reasonable grounds to believe you have committed an offence. The officer will read you your rights and make a formal Breathalyzer demand. You are handcuffed and placed in the cruiser to be taken to the station to be processed and taken to the breath technician room for further tests. You must indicate that you want to speak to a lawyer in order to trigger this right. Be clear about this.

ERROR

The machine will register an ERROR message if an unsuitable sample is received into the machine. The police take error messages to mean you are refusing to provide a suitable sample. If the police believe you are not providing a suitable sample on purpose, they will charge you with Refuse to Provide a Sample. This offence holds the exact same punishments upon conviction, in fact judges are often harder on those who refuse. In some cases medical issues can make providing a sample difficult for elderly and sick individuals.

HOW AN OFFICER DETERMINES IMPAIRMENT

An officer can only demand that you provide a roadside sample if he has a reasonable suspicion that you have consumed alcohol. How does he come to reasonably suspect that you have consumed alcohol, here are a few SAMPLE indicators the officer may rely on:

• You admit to the officer that you have drank two beers or consumed any alcohol
• He smells alcohol on your breath
• He sees open containers of alcohol in your car
• You are slurring your speech
• You seem impaired by virtue of poor coordination or delayed response
• Your eyes are red and glossy

Read those indicators and you know why the officer leans way into your car right in your face and asks you questions. I roll my window down half way.

Any one or a combination of the above factors may give the officer the suspicion that you have consumed alcohol before driving, this may then give him the legal authority to demand that you provide a sample of your breath into a roadside device.

SO, WHAT DOES THIS MEAN TO THE DRIVER IN THE RIDE PROGRAM

• If you admit to consuming alcohol the officer can demand a roadside test
• If you look into the officers face and breath alcohol directly into his face, even if you have had only a sip of wine just before driving, he will smell alcohol and demand a roadside
• If you panic, it may be taken as a sign of impairment, most people have a hard time finding their insurance documents (because they never touch them), the fumbling for papers will result in the officer noting you had coordination problems.

SO, WHAT CAN ONE DO

• Cooperate, answer honestly and stay calm
• The risk is that recent consumption of alcohol can provide a result that reflects alcohol in the mouth, but it is not accurate as to alcohol in your blood. So a recently drank glass of wine or beer can result in a WARNING OR FAIL on the roadside test. If this is the case you car can get impounded as a result of mouth alcohol and you not being impaired in any way. It usually takes 15 minutes for mouth alcohol to dissipate
• This is why you need to know your rights.

As an Assistant Crown Attorney the Impaired and Over 80 trials always posed a bitter sweet task to tackle.  The trials are often technical and difficult for the Crown to prove.  There are lots of areas where mistakes can be made.  The police often trying to do the right thing miss one of the technical requirements while making the arrest and become very frustrated when the charge is lost.  However, recent legislation has made the prosecution of Drinking and Driving charges much easier for Crown Attorneys.

In the old days defence counsel could rely on the 2 Drink Defence: where an accused calls witnesses who swear he only drank two beer and therefore cast doubt on the accuracy of the Breathalyzer results. This defence does not work anymore and the result is far more convictions…which is a good thing if the driver is actually drunk.

What the public and the media need to keep in mind though is that not every charge should result in a conviction.  We do not live in a Police State where it is the police who decided who is guilty.  This is a good thing believe me.  The police don’t have time to investigate to the point that they can be assured of guilt.  They need to establish on reasonable and probable grounds that an offence has been committed before they lay a charge.  They can’t charge someone on a mere suspicion that they committed a crime.

Think about being charged, handcuffed taken to the station and interrogated on a mere suspicion.  It would be a very serious infringement on a citizen’s rights.  In third world countries police can act in this matter, in Canada thankfully the law has placed an onus on them to make sure they can demonstrate that they had reasonable and probable grounds to arrest a citizen before they do so.

The only way that the courts can enforce this important legal principle in Canada is to throw out charges where the police arrest a citizen without reasonable and probable grounds thus forcing them to do their homework before seriously interfering with a citizen’s liberty.

Stay informed, stay safe.