Q: Over the holidays I notice the police are out more, doing roadside stops to check for drunk drivers. Is this legal? How can they pull people over for no reason?
A: This is a question I’ve been asked many times, usually around this time of year. These roadside stops have been ruled legal by our Supreme Court, which stated that the reasons behind such checkpoints outweighed any limit on a person’s rights.
The most recent numbers tell us that in Canada, drunk driving kills about four people every day and injures 200 more. Those are startling statistics. The various levels of government all decided something had to be done to try to prevent this.
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As a result, they developed the RIDE Program (Reduce Impaired Driving Everywhere). It was first developed in Ontario in the late 1970s. While it imposes a temporary restriction on the civil rights of those persons pulled over, our courts held this minor inconvenience was worth the trouble when compared to the potential positive effect of the spot checks catching impaired drivers. Simply put, these checks are legal and there’s nothing you can do about them.
Even if it wasn’t a checkpoint you were stopped at, in most provinces peace officers are allowed to stop a vehicle to check if it is properly registered, whether the driver has a valid licence and to check the condition and safety of the vehicle itself. So a police officer doesn’t need a specific reason to stop you; he or she can just use one of these.
Without checkpoints, the police still have a wide range of reasons to pull over a vehicle and check on the occupants.
You can, however, do some things to protect yourself. Here are a few considerations.
The best way to stay free of difficulty at these stops is to not consume any drugs or alcohol when you plan to drive. Or, have a designated driver to get everyone home. If you do drink, a surprisingly small amount of alcohol can put you over .08. If there are cabs or other rides available, take them. Don’t take a chance.
If you are stopped at one of these checks, do not “lip off” to the police. First, what they are doing is legal so you have no basis to protest. Second, being “smart” invites closer scrutiny of you and your behaviour.
Having said this, you don’t have to answer anything other than the most basic questions. When they ask you where you’ve been or where you’re going, you do not have to reply. Nor do you have to answer if they ask you if you’ve had anything to drink.
Remember, if you do answer, anything you say can be used against you in court. Lying will seldom assist you and usually comes back to haunt you. Also remember that some police services videotape suspected drunk drivers, so you being belligerent may be part of a tape that can be played in court. Few people look good shouting and swearing at the cops.
Sometimes drivers are asked to perform certain sobriety tests, such as touching their fingers to their nose or walking in a straight line. The police do not have to read you your rights before making this request. It is only a request; you do not have to do this if you have been pulled over. You can refuse.
But bear in mind that if asked, you must provide a roadside or police station breathalyzer sample. The punishment for refusing to do so is the same as if you provided a sample and were impaired. The only difference is there are usually fewer defences to a refusal charge than to an impaired driving charge. It is quite likely you will be found guilty on an outright refusal to provide any breath sample. You are not entitled to a lawyer before providing a roadside sample into a portable screening device, but you are entitled to a lawyer before providing a sample into the actual breathalyzer at the station or detachment. Having said that, most lawyers will advise you to blow.
Be aware that it does not have to be impairment through consumption of alcohol that gets you in trouble. It can be by use of drugs or a combination. If you are taking prescription drugs and also consume alcohol, the combined effect can result in impairment for which you are criminally liable.
As stated, be cautious and assume even one drink can put you over the legal limit. This will help you stay out of trouble during the holidays and at any time.
Rick Danyliuk is a practising lawyer in Saskatoon with McDougall Gauley LLP. He also has experience in teaching and writing about legal issues. His columns are intended as general advice only. Individuals are encouraged to seek other opinions and/or personal counsel when dealing with legal matters.
