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.

Delayed breath sample may result in “not guilty” from DUI charge

At what point after driving a car can a police officer get a breath sample from a breathalyzer?

Consider this not uncommon situation:

A person driving a car causes a car accident.  I’ll call this person driver X.  Driver X gets out of the car and remains at the scene.  A police officer arrives 15 minutes after the crash.  The officer starts investigating the crash, including talking briefly to driver X, then continues wrapping up the investigation.  Then, 15 minutes after arriving on the scene – once the investigation is winding down, the officer returns to driver X and offers driver X a ride.

During the second conversation between the officer and driver X, the officer smells alcohol on the driver X’s breath.  The officer demands a breath sample.  Driver X gives a breath sample and fails.  The breath sample is given 18 minutes after the officer arrives at the scene and 33 minutes after the crash.

These were the facts in a recent BC provincial court case (R. v. Redgrave, [2008] B.C.J. No. 938).

The result?  Not guilty.

The reason for the ‘not guilty’ DUI decision was that the delay between the time the officer arrived at the scene and the officer demanding a breath sample was unreasonable.  As such, the breath sample was not authorized by law, resulting in an unreasonable search and seizure within the meaning of section 8 of the Canadian Charter of Rights and Freedoms.

If there is a delay between the time a police officer arrives at the scene of a crash and demanding a breath sample, and if that delay is long enough – longer than it is reasonably necessary for the officer to investigate (the accident or whatever else is being investigated) – then there is a possibility that the breath sample evidence won’t be admitted in court.

Section 254 (2)(b) of the Criminal Code states “to provide forthwith a sample of breath…”
The word forthwith means immediately.

Accident victims and accident scene safety are always a priority over obtaining breath samples.  However, once safety concerns are over, the police officer must investigate for impaired driving.  Any delay beyond that which is necessary is unreasonable.  When this happens, impaired driving evidence may not be allowed to be used against you in court.

Note: police officer delay is not to be confused with an intentional delay caused by a driver.

BC ignition interlock program for DUI / impaired convictions

The Office of the Superintendant of Motor Vehicles (British Columbia) now (as of February 1, 2009) requires drivers to install an ignition interlock device in all vehicles they drive if:

• An alcohol-related Criminal Code or Motor Vehicle Act conviction,
• Three 24-hour prohibitions within 5 years, or
  
• Two Administrative Driving Prohibitions (ADP) within 5 years.

The more offences, the longer the device is required.
An ignition interlock device requires a driver to breathe into an into a breathalyzer type device before the vehicle will start.  If there's alcohol in the breath, the vehcile won't start.

Drivers with the interlock device will need to go to an interlock installation centre every 1 - 2 months to download the information recorded.  The yearly cost for an interlock device is $1,600.  If a person required to install the interlock device drives another vehicle for work, they need to install a separate device in that vehicle also at an additional $1,600 per year.

3 main criminal offence classifications in Canada

If you've been charged with a crime in British Columbia, which court and how it proceeds depends on the classification of the offence.  The Criminal Code of Canada sets out 3 main offence classifications which are as follows:

1.  Purely summary conviction offence;
2.  Purely indictable offence; and
3.  Hybrid offences.

The summary conviction offences are the most minor, followed by hybrid offences, and then the most serious offences are purely indictable offences.

The majority of criminal charges in Canada (and therefore B.C.) are hybrid offences.  For example, DUI and assault charges are hybrid offences. 

Hybrid offences can proceed summarily (less serious) or by indictment (more serious).  The prosecutor chooses the classification.

To view a detailed compare and contrast table of the 3 main offence classifications, click here.

What must be proved for a criminal conviction in BC

Just because you do the act of a crime doesn't mean you'll be convicted in a BC court.  The prosecutor must prove beyond a reasonable doubt that you also intended to commit the crime.

This means the prosecutor must prove that you (1) committed a crime, and (2) intended to commit the crime.  For example, if you're in a car accident and it's your fault, but you didn't intend to cause the car crash, that isn't enough to be convicted of a crime in BC.  If that was the case, many car accidents would result in criminal convictions.  However, if you crash your car into someone intending to hit them, similar to intending to punch someone, then you could be charged with assault.

That said, and using the car crash example above, the prosecutor (called Crown Counsel in BC) must prove (1) that you crashed your car into a person and intended to crash your car into a person.

Beyond a reasonable doubt is more than just proving something is more than 50 percent likely.  Beyond a reasonable doubt means leaving very little or no doubt in the judge's mind that you (1) did a criminal act, and (2) intended to do the criminal act.

Gordon Dykstra, a criminal lawyer in the firm Dykstra & Company, has over 25 years experience defending people charged with a crime.

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.