December 17, 2007
By Jordan W. Charness
It’s that time of year again. In the months leading up to the Christmas holidays and during the time of year when many people celebrate holiday parties either at home or at work, the police are also working extra hard to protect us. It is also the season for random roadblocks and breathalyzer tests.
If you fail the roadside breathalyzer test you will be bundled into a police car and taken to one of the central booking stations where you will undergo a full-size breathalyzer machine test. Fail that test and you will lose your right to drive, pay a fine, and perhaps even spend some time in jail.
Generally speaking, before the police can pull you over and submit you to any type of testing or even questioning, they must have “probable cause” to do so. This means that they have to have a good reason to suspect that you have committed a crime, in this case drinking and driving, before infringing upon your Charter right to be secure from unreasonable search and invasion of privacy by the police.
Holiday roadblocks, where everyone is drawn in and ordered to take a breathalyzer test without any particular reason would, on the face of it, be a breach of the Charter. Nonetheless, the Supreme Court of Canada ruled several years ago that these random roadblocks are so effective in controlling drinking and driving that they are a reasonable infringement upon personal rights since they do so much to protect society.
Peter and his wife Mary were pulled over the other day at one of these random roadblocks. Peter, who was driving and had not had a drop of alcohol to drink all week, decided to have some fun with the police officer. Unfortunately, Peter has a slightly warped sense of humor.
When Peter was asked for his license and registration, he affected a silly grin and said “yes Ociffer, I’ll be doing anything you wanting me to.” He then pretended to fumble for his documentation and even dropped his license on the floor a couple of times before handing it to the police officer.
The officer checked that his documentation was in order and asked him to blow into the roadside breathalyzer machine. “Yes ma’am.” He replied to the obviously male policeman, and reached for the machine. Peter knew of course that he would pass a breath test and then he would tell the policeman that it had all been a big joke.
Just as he expected the pass light lit up. He was asked to blow into the machine again and once again passed with flying colors.
“Step out of the car please Sir, you are under arrest for driving while impaired.”
Peter’s smirk quickly faded. “What are you talking about??!” Peter demanded. “I haven’t had a drop to drink and I passed a breathalyzer test – why are you arresting me?”
“We are not arresting you for driving with too much alcohol in your bloodstream.” He was told. “You’re being arrested for driving while obviously impaired, possibly by drugs.”
There is a separate and related offense to drinking and driving which is the offense of having care and control of a motor vehicle while your ability to do so is impaired. Impairment may be proven by objective means such as slurred speech, problems with small motor coordination (dropping your driver’s license on the floor several times) glassy eyes and other objective tests. Peter’s behaviour, although it was a joke, certainly appeared to fit the above definition of driving while impaired.
When Peter’s trial eventually rolled around Mary’s testimony as well as his and the efforts of his brilliant lawyer were enough to convince the judge that it had all been a joke. Some jokes however, clearly are not funny!
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