OHTA.ca

Hi everyone,

Friend of mine was stopped and asked to blow into alcohol test meter just because he said he had 2 drinks earlier in the night (like 4,5 hours before being stopped). He wasn't behaving erratic or driving out of line. The officer said he noted him to pull behind few parked cars and then leaving and that is why he stopped him. Mind you this was an entertainment district but he was looking for parking spots so looking for a spot and not finding and pulling back into the street is not unusual and that is exactly what happened.

Anyhow, here are my questions:

1- Officer asked him to take the test and took him to back of his car. He gave the test and was found to be 0.034 which is well within the limits for a G class. So, was the officer right to stop him, take him to back of his car and ask for blowing test even when the officer wasn't directly on duty to do random checks? He just based all his theory on him pulling into the curb to park and then pulling out back to the street. I mean this is a waste of everyone's time and un-called for when the driver you talk to shows to be in good order and there was nothing wrong with the driving.

2- Does a check like this stay on some sort of a report? I mean the driver didn't get no tickets and wasn't found at fault at all but next time he is stopped and another officer looks at his records might be able to see what happened and might not want to be lenient even if they wanted to even if it's about a speeding ticket. Since the officer punched in the DL into the computer what information remains there or what info is he supposed to log for the stop? Does he log that he was wrong and the guy was well within his limits?

3- Is an officer supposed to do the meter blowing check in presence of another officer? Driver was told that he gets only 3 chance to blow and regardless of the unit malfunctioning or him not blowing hard he would still be arrested unless the meter shows him to be below the conviction number. This is a really bad rule. Is that true? I mean an officer like this could simply twist his word as well if he has such bad judgement to stop someone like that so whose there to protect people?

Thanks,

1) Courts have ruled random stops are allowed to check for sobriety, such as RIDE checkpoints. Officers only require reasonable suspicion person has been drinking to conduct roadside test. An odour of alcohol or admission of consumption would be sufficient grounds for this test. If the driver appears impaired, officers should NOT conduct the test, but arrest right away for impaired. The roadside test is only for people you suspect have been drinking but do not appear impaired. In short, the stop and test seem proper based on what you said took place.

2) The officer will have likely recorded the stop in his notebook and there would typically be a computer record of the vehicle stop, but not something that would appear on a background check, insurance check, etc. Just basically a log that vehicle was stopped and this person was driving.

3) No requirement for another officer to be present, nor would it always be possible. There is also no hard and fast rule stating you only get three tries. If your friend had failed to provide a sample, the officer would have to satisfy the Court that it was willful and he had provided sufficient opportunity for a sample to be provided.

Oh, he told him 3 tries and that's it I will arrest you. That's what surprised me and he was telling me he didn't even tell him to blow hard so the first blow was soft and it didn't register apparently.

Thanks

I only give three tries. We can usually tell when someone is trying to beat the test. Plus the instrument has lights and error codes that tell us when the person blowing is playing games.

I look at it this way. If I was to say that there was a 1000 dollar prize to produce a sample. People would blow their face off the first time

It is not hard to produce and even a person with asthma can produce.

GS

Everyone who knows they're going to blow over suddenly develops asthma.

I think in this case the officer made that blowing hard clear after the first failed attempt. Regardless playing the meter is like not giving the test so I doubt anyone would like to just do it for the heck of it unless you see this happening a lot in the field.

What happens is you've been stopped, asked to blow but knowing you haven't had anything to drink refuse to blow? Is it an automatic arrest?

Yes, you probably would be arrested.

Once an officer has read the breath demand, youre required by law to provide a suitable sample of your breath. Police only require a reasonable suspicion to make such a demand (a pretty low threshold), not absolute certainty. As long as the officer can articulate in Court what gave him the suspicion you may have been drinking, the demand should be considered lawful. You may have truly had nothing to drink, but that doesnt invalidate the demand if the officer believes otherwise based on his observations. If you are arrested, you may be released at the scene or back at the police station with an assigned Court date and fingerprint date. Your vehicle is also impounded for one week and your licence is suspended for 90 days.