What are my Rights when asked to take a Breathalyzer Test?

What are my rights if police pull me over for an alcohol test?

In Ontario, the police can pull anyone over and request their driver’s licence and insurance, as well as ask questions about recent alcohol consumption.  You must show them your licence and insurance information, but are not required by law to answer questions unrelated to their grounds for pulling you over.  If the officer has any reason to believe you have alcohol in your body, they may require you to breathe into an approved screening device (ASD) for a roadside breath test and/or they may request you to perform various physical movements to check your coordination.  With respect to these immediate tests, the police are not obliged to wait until you first consult with a lawyer, and if you refuse to comply, you can be charged under the Criminal Code.

If the results in your roadside breath test show ‘fail’ or ‘warn’, police can require you to perform a Breathalyzer test, which is generally completed at a police station.  At this point and before taking the test, police are required to inform you that you have the right to speak to an attorney and they must give you a reasonable amount of time to do so, before administering the breath test.  You must be given the opportunity to speak with your legal counsel in private and you have the right to choose your own legal counsel. 

Breathalyzer tests measure a person’s blood alcohol level and two tests must be administered, 15 Minutes apart.  Only a qualified technician should oversee the test, and you should be given a copy of the results.  If you are physically unable to perform a Breathalyzer test or there is another good reason why this test cannot be performed, police can require you to complete a blood test.  The blood test must be administered or supervised by a qualified medical professional.

If your legal rights are not upheld in any way throughout the process of testing for alcohol in your body and you are charged with an alcohol-related offence, there is a good chance of having the charges dismissed. A failure to give someone the chance to speak with their chosen legal counsel before administering a Breathalyzer can result in exclusion of the results of the test because this means the test was obtained in violation of a person’s rights under sections 8, 9 and 10(b) of the Canadian Charter of Rights.  This was the reason a charge of ‘excess alcohol’ was dismissed against the defendant, Firas Swaida, in the 2015 trial, R. v. Swaida.

Judge dismisses ‘over 80’ charge because Toronto police violated defendant’s right to counsel

In December 2012, the defendant, Mr. Swaida, was flagged down by two Toronto police officers on patrol, when he was driving the wrong way on Adelaide Street. One of the officers testified that he smelled alcohol on Mr. Swaida’s breath and detected slight slurring of speech, so he asked Mr. Swaida whether he had anything to drink. On the basis of Mr. Swaida’s reply that he had “a few glasses of wine about an hour before”, the officers phoned to have an ASD brought to their location, which took about 15 Minutes.  After the ASD device registered a ‘fail’, Mr. Swaida was charged with ‘over 80 mgs’, advised of his rights, and asked whether he wished to contact an attorney. Mr. Swaida requested to consult with a specific attorney and was told he could speak to his lawyer at the police station.

At around 4 a.m., when Mr. Swaida was booked, one of the arresting officers used Google to determine the phone number of the lawyer requested by Mr. Swaida and left a message on the answering machine of the lawyer’s office. The officer then told the defendant that he would call the Legal Aid Duty Counsel, in case Mr. Swaida’s lawyer did not call back.  Because the duty Counsel called first, the defendant was asked to speak to him rather than his requested lawyer. The arresting officer expressed the opinion that there was a time limit on getting a lawyer, so Mr. Swaida would have to seek counsel from whoever called back first.

The breath technician asked the defendant whether he was given a chance to speak to legal counsel and this conversation was recorded on video, along with the Breathalyzer test process. Mr. Swaida replied that he spoke to a duty counsel but didn’t know who he was or whether he was a proper lawyer. Further, Mr. Saida said that he preferred to speak to his own lawyer and asked whether that was possible. The technician replied that, as it was 4:00 in the morning, his lawyer was likely sleeping and unavailable.  Mr. Swaida acknowledged that he had spoken to the Legal Aid Counsel, so the breath technician administered two tests for which the results were recorded as 120 and 110 mgs.

In the 2015 trial, Mr. Swaida testified that he had previously reached his lawyer at 4 or 5 a.m. on behalf of some friends, and also that he had the lawyer’s phone number in his cell phone (which was taken from him when he was booked).  He also testified that he felt he did not get proper advice from duty counsel but thought he was obligated to use the Legal Aid counsel.  The arresting officers testified that they asked Mr. Swaida if he knew his lawyer’s phone number when they arrested him, to which he replied ‘no’, but there was no further attempt to ask the defendant how to reach his lawyer.

With regards to Mr. Swaida’s initial arrest, the judge stated that the arresting officers had reasonable cause to request the ASD roadside test and also, that the ‘fail’ results gave reasonable grounds for a Breathalyzer test to be demanded.  The infringement of Mr. Swaida’s rights began after this point in the arrest.  Under s. 254(2) of the Code, when a police officer makes an ASD demand, the demand must be made ‘forthwith’ (immediately and without delay) once the officer feels it is justified.  Neither officer knew the exact time the demand was made, but estimated a time of 15 Minutes for another officer to arrive with the ASD. 

The failure to make a timely ASD demand infringes on the defendant’s right to counsel and as a result, what later took place was “an unjustified seizure, arbitrary detention and breach of the requirement to advise the detainee of his or her right to counsel”.   The judge was troubled by the officers’ misconception that there is no obligation to provide a person the right to counsel until they are actually arrested.  The officers should have advised Mr. Swaida of his right to legal counsel during the delay in waiting for the ASD test.

With regards to convincing Mr. Swaida to except counsel from the Duty Counsel, the judge had the following comments. When someone is arrested, there is an immediate need for legal counsel and the accused person has the right to choose their own counsel; if their chosen lawyer cannot be available within a reasonable time period, then the accused person should be allowed to exercise their right to counsel by contacting another lawyer of their choosing.  Further, police officers are not supposed to be involved in a defendant’s choice of counsel or steer the accused towards choosing one lawyer or another.  Finally, the judge criticized the idea that the first lawyer who calls should be the one the defendant uses, and emphasized that the detainee’s right to counsel is “of such fundamental importance that it supersedes any statutory time pressures within which the breath samples are to be taken.”  In conclusion, the judge decided that Mr. Swaida was not granted a reasonable opportunity to exercise his right to a lawyer of his choice.  Accordingly, the Breathalyzer evidence obtained after the breach of Mr. Swaida’s Charter rights was to be excluded and as a result, the ‘over 80’ alcohol charge was dismissed. 

If you are arrested for an alcohol-related offense, such as impaired driving or over 80, you need a knowledgeable and skilled DUI attorney.  The Law Firm of Ted Yoannou is highly experienced in successfully defending persons charged with drinking and driving offences and our goal is to provide the strongest possible representation.  Call us to discuss the facts of your case and to get an honest assessment of your circumstances and rights under the law. 


This article has been prepared for and posted by The Law Firm of Ted Yoannou. While we make every effort to post useful and factual information, the material found here should not be interpreted as legal advice. Please contact us if you wish to review your own individual circumstances, info@torontocriminallawyers.com, 416‑650‑1011.

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