Approved screening device

Canadian law describes two devices used for the detection of drunk driving offences. An approved screening device is a portable measuring instrument that a police officer can use to gather evidence related to blood alcohol content. If the driver fails the screening device test, a further test using an "approved instrument" will be used to gather evidence that is considered valid for criminal prosecution. Where the driver displays significant signs of impairment such as bad driving behavior or physical signs of intoxication, the officer does not need to use the screening device as well. In Ontario, failing the screening device can result in a temporary suspension of the driver's licence even if no subsequent criminal charges are laid.[1]

An "approved screening device" is a portable instrument used in the field by a police officer, which is checked for accuracy at regular intervals. An "approved instrument" is used by a trained technician under controlled conditions, and checked for accuracy on each use, to produce evidence suitable for use in prosecution.

An approved screening device is defined in the Criminal Code of Canada as:

approved screening device means a device of a kind that is designed to ascertain the presence of alcohol in the blood of a person and that is approved for the purposes of this section by order of the Attorney General of Canada.[2]

An approved screening device demand can be made whenever a police officer reasonably suspects that a motorist has alcohol in his or her body.[3] In Ontario, Canada police have a general power to stop drivers to check sobriety.[4]

The Approved Screening Devices Order[5] establishes certain devices as approved screening devices for use in Canada. These devices are commonly known as roadside testers or simply as an ASD. In the United States they are known as a PBT, which stands for preliminary breath test.

It is a criminal offence in Canada to refuse an approved screening device demand that has been lawfully made. Section 254(5) of the Criminal Code of Canada provides as follows:

(5) Every one commits an offence who, without reasonable excuse, fails or refuses to comply with a demand made to him by a peace officer under this section.[6]

Possible defences to this offence include challenges to the lawfulness of the demand. Sometimes a demand is unlawful because it is not made forthwith or sometimes the device in question is not used forthwith.[7] The demand should be made by the same officer who formed the reasonable suspicion.[8] Lack of an opportunity to speak to counsel prior to the screening device test is not a defence.[9] The results of the screening device test can only be used to establish reasonable and probable grounds for the approved instrument demand, not for evidentiary purposes on the trial proper in Canada.[10]

The Crown generally discloses compliance by the police with standards by providing copies of maintenance and calibration records for the screening device.[11] Police are expected to wait 15 to 20 minutes to administer the test if they suspect alcohol is present in the suspect's mouth.[12]

See also

References

  1. ↑ M.J. Wilkie, J. G. Wigmore, J. W. Patrick The Performance of the Approved Screening Device, the Alcotest 7410 GLC, in the Field: Low Incidence of False Positive Results in the Identification of Drinking Drivers" Can. Soc. Forens. Sci. J. Vol. 36. No 3 (2003) pp. 165-171
  2. ↑ Criminal Code of Canada section 254 (1)
  3. ↑ Criminal Code of Canada section 254(2)
  4. ↑ Ontario Highway Traffic Act section 48 and 216 (1)
  5. ↑ Canada Regulations SI/88-136, s. 1; SOR/93-263, s. 2; SOR/94-193, s. 1; SOR/94-423, s. 1; SOR/96-81, s. 1; SOR/97-116, s. 1
  6. ↑ Criminal Code of Canada section 254(5)
  7. ↑ See particularly R. v. Woods
  8. ↑ R. v. Pavel
  9. ↑ R. v. Thomsen
  10. ↑ R. v. Coutts, R. v. Milne
  11. ↑ See R. v. Neil Campbell as well as notes respecting relevance of such disclosure
  12. ↑ R. v. Bernshaw