LILLEY: New drunk driving law causes confusion

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Imagine driving home from a hard day at work, pouring yourself a drink or two and then hearing a knock at the door more than an hour after you get home.

It’s the police.

They want a breath sample from you to prove that you did not drive home drunk.

Is this a realistic scenario?

That depends on who you talk to. Even the official Justice Canada Twitter account seems confused.

Earlier this month they tweeted and then deleted this statement.

“It’s summer time and the living is easy! Whether you’re sitting on a patio or having a backyard #BBQ, remember it’s against the #law to have a blood alcohol concentration over prohibited levels within two hours of driving. Know the limits.”

That tweet sent plenty of tongues wagging and conjured up images of cops showing up at your home two hours after you stopped driving to demand a breath sample. Justice Canada calls that scenario a myth but they aren’t fully honest with that statement, either.

Their first tweet was true and the new legislation is clear.

“Everyone commits an offence who has within two hours after ceasing to operate a motor vehicle … a blood drug concentration that is equal to or exceeds the blood drug concentration for the drug that is prescribed by regulation,” is how the Criminal Code now reads at Section 253.

So can police show up to your home and demand a breath sample? Yes.

Under Canada’s old drunk driving law, police needed to have reasonable grounds to ask you for a breath sample while you were driving. That no longer applies and they can demand one at any time.

If you are no longer driving though, they still need reasonable grounds to ask for a breath sample.

“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,” is how Section 254 of the Criminal Code explains when a sample can be requested.

It doesn’t matter if you are stopped at the side of the road or hours later at your home. If you refuse to provide a sample, you will be charged.

“If in court, you can prove that there weren’t any reasonable grounds, you win. Do you want to roll those dice?” said Ottawa defence lawyer Michael Spratt.

Spratt is one of the critics of this new law calling it unconstitutional because he says it, “forces law-abiding Canadians to prove their innocence.”

The Trudeau government was warned repeatedly at committee that their new law was against the Charter but they passed it anyway.

“For a government who campaigned on evidence-based policy, it was shocking that this unconstitutional, and unnecessary law saw the light of day,” Spratt said.

He says the new law allows for you to be charged and found guilty even if you only drank after you finished driving.

Toronto defence lawyer Ari Goldkind disagrees. He sees this as a closing of loopholes that allowed drunk drivers to get away with breaking the law for too long.

As for the scenario of getting busted for drunk driving when you are sitting at home, Goldkind doesn’t believe it is a real threat.

“Not going to happen. Could they knock on your door after driving? Sure. But they always could,” Goldkind said.

He uses the example of an eye witness calling 911 after witnessing a car weaving all over the road. Goldkind says that if police track a driver to their home under that scenario, they shouldn’t be able to simply say that they started drinking when they got home.

“The sky is not falling. There’s no ‘police state,’” Goldkind insisted.

No one wants to see drunk drivers on the road, but does this new law go too far?

It gives police and prosecutors new powers which they will at some point use, it also leaves plenty of room for abuse.

On this one, I’m with Spratt and don’t want to roll the dice.

What the lawyers are saying:

Ari Goldkind:

The law on this I believe is simple. The police can ask for a breath sample. The question is can they demand one and charge you with refusing to provide one if you decline once you are home, answer your door, are not in care/control of your car/boat, and when they don’t have reasonable grounds or even reasonable suspicion? In my view, they cannot. Demand is different than “ask.” Mandatory alcohol screening only applies by the roadside.

However, if they have eyewitness calls to 911 that match your description, your car, that you’re weaving all over the road, that the 911 caller followed you to your home, saw you stagger into your house, and the cops show up at your front door and you answer it 30 minutes later? I definitely believe you are going to be in legal trouble.

Michael Spratt

Yes, the police can demand a breath sample after you drove. Yes, this can be at a summer BBQ. Yes, you can now be charged and found guilty if you only drank after you drove. Yes, the new law can read-up your alcohol level to absurd lethal levels — even if you were sober then you drove. Yes, this is a presumption of guilt, it will eat up court time, and it will disproportionately impact people who can’t (as required) afford to hire expert toxicologists.

If the police have reasonable grounds to believe you were driving drunk, then they can demand a breath sample any time — even days after driving. There is no requirement that the Crown calls expert evidence to determine what your alcohol levels would have been at the time of driving. The new law just automatically adds 5mg of alcohol in 100 mL of blood for every 30 minutes since you drove.