BC Criminal Defence Lawyer Blog

No right to a criminal lawyer before roadside breathalyzer

Section 10(b) of the Canadian Charter of Rights and Freedoms states:

Everyone has the right on arrest or detention to retain and instruct counsel without delay and to be informed of that right.

The obvious question arises:  Am I entitled to talk to a lawyer before providing a breath sample and/or performing a roadside sobriety test?

Short answer:  no.

The Supreme Court of Canada addressed this matter in the case R. v. Orlanski [2005] SCJ No. 37.  Canada's top court found that, yes, being pulled over and asking to provide a breath sample is being detained, and therefore one is entitled to a lawyer.  However, section 1 of our Charter states that our guaranteed rights are subject to reasonable limits declared by law.

Section 254 of the Criminal Code of Canada, which sets out Canada's criminal offences, declares that upon suspicion of impaired driving a police officer can demand a breath sample and/or demand a roadside sobriety test.  Section 254 is a law that limits the 'right to counsel' Charter right.  What our top court decided was that demanding a breath sample and/or roadside sobriety test without an opportunity to contact a lawyer is a reasonable law.

What this means is that one is not entitled to talk to a lawyer before breathing into a roadside breathalyzer and/or performing a roadside sobriety test.

Nanaimo signs encourage calling 911 to report drunk drivers

The City of Nanaimo, British Columbia is unveiling a project in which it will post signs encouraging motorists to pull over safely and call 911 to report suspected drunk driving.

This initiative is a collaboration of the Nanaimo RCMP, Office of the Superintendent of Motor Vehicles, MADD Canada, the City of Nanaimo and BCAA Traffic Safety Foundation.

Call centres will be set up to serve these calls.  The article "Call 911 to report impaired driving: BCAA" in Canadian Driver dated June 23, 2009 sets out the harrowing cost and damage of drunk driving in BC alone.

I note that the road signs to be installed will suggest to "pull over" and dial 911.  There's plenty of dialogue these days about banning cell phone use while driving - 25 percent of car accidents are caused by driver distraction according to a recent BC government report.  While drunk driving is dangerous to all motorists, so is cell phone use while driving according to some reports (Washington State has a ban on cell phone use while driving).  I wonder if cell-phone while driving is banned in BC, whether signs will be installed encouraging calling 911 to report cell phone use while driving.  I suppose with today's electronic signs, they could toggle back and forth between messages.

I wonder whether 911 already fields such calls and if so, do police follow up on them?  I'll be interested to see how many calls the specially set up 911 call centres will receive reporting drunk drivers and whether sufficient policing resources will be available to go out and follow up on all the tips.

Safe roads are a significant concern to BC citizens.  One way to help police, I suppose, is engage the public to get involved. 

Free BC Criminal Law Book

If you've been charged with a crime, you probably need some answers.  Gordon Dykstra, the founding lawyer of Dykstra & Company, wrote "Am I Going to Jail?" for people charged with a crime such as a DUI, assault or any other criminal offence in British Columbia.  This book is available to you at no cost and no obligation.

Am I Going to Jail talks about the consequences of a criminal record and what you might be able to do to avoid a conviction, get a reduced charge, or a lighter sentence.

Your case may be stronger than you think - and that's the point of the book.  Check it out by ordering a the Dykstra & Company homepage - it costs nothing and could help your case.