According to the Criminal Code, a police officer can legally pull over a driver, and, upon reasonable suspicion of impairment, demand that the driver submit a breath sample by administration of an approved screening device. But what if the demand is made 18 minutes after detention in a police cruiser - or even after ten minutes? What if, during that time, the suspected drunk driver is also not informed of a right to counsel? Is the demand still lawful?
Not necessarily, according to the case law. When it comes to detention and the right to counsel, time is indeed of the essence - and may very well result in an acquittal for the offense of refusing to comply with a demand to provide a breath sample.
In the Ontario Court of Justice decision of R. v. Dehal , the case turned on a mere ten-minute time lag between the time the officer "crystallized" a reasonable suspicion of impairment and the time at which the demand for a breath sample was first made. During that time, the suspected drunk driver was detained in the back of the police cruiser, awaiting the arrival of an approved screening device. As the court determined, the ten-minute detention was unlawful, since neither a demand for a breath sample was made during that period nor a notification of the right to counsel (pursuant to s.10(b) of the Canadian Charter of Rights and Freedoms).
Still, after just ten minutes, the demand was made, at which point, the suspect was informed of his right to counsel. The suspect was subsequently charged with a refusal to comply with the demand, but the court held that, in view of the breach of the defendant's constitutional right to be notified beforehand of a right to counsel, the evidence underpinning the offence for refusal to comply should be excluded.
As in all such cases, however, the results here were distinguished by one crucial fact - the defendant was never charged with a drunk driving offence. Nevertheless, the court surveyed a number of important principles to be considered.
The analysis of the court proceeded with the notion that a demand for a breath sample, under s.254(2) of the Canadian Criminal Code, should be made "immediately" upon reasonable suspicion of a drunk driving offence. Once that demand was made, a sample should then be taken "forthwith", during which time, there would likely be no opportunity to contact a lawyer. The jurisprudence, as cited by the court in Dehal, held, however, that where such a demand was made immediately after the reasonable suspicion of impairment had crystallized, the administration of a breath sample test "forthwith", in the absence of the right to counsel, would be a reasonable limitation under s.1 of the Charter.
