Big DUI Change That Will Impact All Canadians

As of today (December 18, 2018), drive impaired laws in Canada are going to see some major changes. Bill C-46 received Royal Assent on June 21, 2018, but it was only going to come into force after 180 days to allow the provinces time to prepare for the changes. Increased minimum fines are important to know about, but I think the biggest change that could impact the most Canadians is that police officers are now able to make any driver provide a roadside breath sample into an ASD at any time. You can check out this CBC news article about it here.

Please remember, laws can be different all over Canada, so be aware the information on this page focuses on the Province of Manitoba. Laws can also change over time, so this information was accurate as of December 2018.

What is an ASD?

An approved screening device (ASD) is sort of like a mini breathalyzer machine. It is small and portable, about the size of a large-screen phone. You provide a breath sample into the machine through a little plastic straw and it displays:

• green if your blood alcohol level is between 0-50 mg%. Unless you are a Novice driver in Manitoba with a 0 blood alcohol limit, then you would be free to go.

• yellow or warn if your blood alcohol level is between 50-100 mg%. In Manitoba (as of this article) you will receive a 3 day driving suspension and maybe further penalties from Manitoba Public Insurance. However, the province did announce proposed changes to the Highway Traffic Act to increase these penalties and you can click here to read a CBC news article about it. As of right now, these are just proposed changes and haven’t become laws in Manitoba yet.

• red or fail if your blood alcohol level is over 100 mg%. The officer then has the legal grounds to arrest you for impaired operation of a motor vehicle and demand you provide a sample at the police station into an “approved instrument” (breathalyzer).

It is important to know that all ASDs have one MAJOR limitation. If you have consumed alcohol within 15 minutes of providing a sample into an ASD, then the device will measure the alcohol in your mouth and not from your breath. This can easily result in a red or fail even if your blood alcohol is not over 100 mg%. You are never required to tell the officer if you have been drinking, if you are coming from a bar, or when your last drink was. The officer has a right to ask you these questions and you have the right to remain silent or say, “no comment.” But after an officer demands you provides a sample into an ASD, you should immediately tell the officer if you drank any amount of an alcoholic drink in the last 15 minutes. Then the officer will wait with you for 15 minutes before taking your breath sample to ensure it is an accurate reading. (Smoking a cigarette should not impact the readings but it can gunk up the machine, so an officer may choose to wait a few minutes if you’re smoking a cigarette when you’re pulled over.)

What was the old law?

Previously, a police officer needed to have a reasonable suspicion that a driver had a drug or alcohol in his/her body in order to demand and force the driver to (1) complete a standardized field sobriety test or (2) provide a breath sample into a roadside approved screening device (ASD).

In most cases, the officer would have a reasonable suspicion if the officer detects alcohol on your breath, or in the vehicle when you’re the only occupant, or if you admitted to consuming alcohol. There could be other scenarios that would also meet the test, but these were the most common I saw in my practice.

The key is to remember that roadside testing like this is about whether you have ANY amount of alcohol in your body and it is not about whether you are showing signs of being drunk or impaired.

What is the new law?

The old law about a reasonable suspicion still exists (with some slight changes to the wording) but there is a new section that is being added, it is section 320.27(2):

If a peace officer has in his or her possession an approved screening device, the peace officer may, in the course of the lawful exercise of powers under an Act of Parliament or an Act of a provincial legislature or arising at common law, by demand, require the person who is operating a motor vehicle to immediately provide the samples of breath that, in the peace officer’s opinion, are necessary to enable a proper analysis to be made by means of that device and to accompany the peace officer for that purpose.

What this means is that the officer does not need to smell alcohol on your breath or get you to admit that you’ve had a drink in order to make you provide a sample into an ASD. However, the officer must have an ASD with him/her, so they can’t wait around for another officer to bring one. (But if the officer can meet the reasonable suspicion test, then he/she can wait for another officer to bring an ASD to the scene). Not all officers have an ASD with them on every shift and not all officers have training to use an ASD. So, I don’t think that everyone who is pulled over for any Highway Traffic Act offence is going to have to blow into an ASD, but I do think the number of ASD tests conducted overall is going to skyrocket.

What if you don’t do it?

If you refuse to comply with a lawful demand under the reasonable suspicion section or under the new mandatory sample section, you will be charged with a criminal offence of refusing to provide a sample. The mandatory minimum punishment used to be a $1,000 fine but that is increasing to a $2,000 fine with this new legislation as well. So, refusing to provide a sample is not a good idea.

I want my lawyer!

It is important for you know that during roadside testing like this, the police are not required to let you to speak to a lawyer. This would absolutely be a violation of your right to counsel and unconstitutional, but the Supreme Court of Canada already said it isn’t. You are not able to seek legal advice from a lawyer about whether you should provide a sample into an ASD or not. If you tell the officer that you won’t provide a sample until you speak to your lawyer, the officer will charge you with refusing to provide a sample. You are required to provide the sample immediately, so failing to do so is failing to provide a proper sample.

Final Thoughts

Unless you purchase one of the same ASDs that the police use, you really have no way of knowing what your blood alcohol level is. For some people, with an empty stomach and after a drink or two, they could be in the yellow/warn zone. You can purchase your own unofficial ASD if you wanted to get a sense of how you feel and how many drinks it takes for your blood alcohol level to get to a certain point. For $150 you can buy a well-reviewed ASD (click here for review) from Amazon (click here for link), but you still have to wait 15 minutes after your last drink before you should test your levels. Having said that, I would NOT trust an unofficial ASD to confirm I am under the limit to drive - the consequences are too high for me to take any risks. If you are planning on having more than 1 drink in an evening, make other arrangements to get home. This may seem EXTREMELY cautious but a cab is lot cheaper than a DUI, in fact, a helicopter may be cheaper than a DUI conviction.

Additionally, many people believe that your body can get rid of 1 drink per hour. That’s not exactly correct. The science says people can, on average, metabolize alcohol at a rate of 10-20 mg% per hour. So, if you’re over the legal limit to drive at 80 mg%, it could take you from 4-8 hours to get back down to 0 mg%. So, if you’ve had a late night drinking (and you were drinking a lot), you may feel better after sleeping for a bit, but chances are your blood alcohol level is still pretty high. Do not drive the next morning. I would wait 24 hours to be safe after a big drinking night.

In Canada, we have a legal right under section 8 of the Charter of Rights and Freedoms to be free from unreasonable search and seizure. While some people applaud the government for taking steps to try and reduce dangerous drivers on the road, others argue that this is a step towards eroding our constitutional rights as Canadians and should not be accepted. The Conservative Government under Stephen Harper made several criminal laws that the Supreme Court of Canada later found to be unconstitutional (R. v. Nur, 2015 SCC 15, R. v. Safarzadeh-Markhali, 2016 SCC 14, R. v. Boudreault, 2018 SCC 58).

Related articles

• Impaired Driving or DUIs (michaeldyck.ca)

• Can You Have Alcohol in Your Car (michaeldyck.ca)

• How much does it cost if you get a DUI? (And why it is cheaper to hire a helicopter) (michaeldyck.ca)

• Mix 96 Steinbach Guest Spot: Drinking and Driving Costs (michaeldyck.ca)

• Supreme Court of Canada Series: R. v. Bingley (DRE Experts) (michaeldyck.ca)

About the author

Michael Dyck is a partner at Rees & Dyck Criminal Defence. He represents clients primarily from Winnipeg, Steinbach, and rural Manitoba. He has extensive experience helping people charged with criminal offences and focuses on building legal strategy with clients. To read more of his articles, please visit his partner's website TomRees.ca.

MAJOR UPDATE: Cell Phones and Driving in Manitoba (August 2018)

Can you use cell phone while driving Manitoba? At this point, I think we all know that it is against the law that is set out in the Highway Traffic Act (HTA). But distracted driving law in Manitoba has changed recently, so it is time for quick review and then we'll cover the major update as well.

My first blog post about using a cell phone while driving was in May 2015 (click here for link). That post covered the basics like what does the law mean when it says a "hand held electronic device" and what is the legal definition of "using" one of these devices. There is also information about when and how you are able to use a cell phone legally if you are in your vehicle. Back then, the consequences were only a fine and 2 demerits.

My second blog post was in June 2016 (click here for link). The laws changed and the consequences now included 5 demerits. I also reviewed some of the comments from the original post and summarized the questions and answers.

In March and April of this year, there were many news articles about a new law being proposed by the provincial government, but the law was only being proposed at that time and it wasn't in effect yet.

• Distracted driving to be expanded, Winnipeg Free Press

• Distracted driving to net automatic licence suspension in Manitoba, says infrastructure minister, CBC

• Licence suspensions coming for drivers caught using cell phones, Global News

• Roadside licence suspensions coming for those who text and drive in Manitoba with new legislation, National Post

Even though there have been no recent news articles about this issue, The Drivers and Vehicles Amendment and Highway Traffic Amendment Act (Bill 17) was passed into law on June 4, 2018 by the Manitoba Government. If you want to check for yourself, here is a link outlining when Manitoba bills became law in 2017-2018.

MAJOR UPDATE

As of June 4, 2018, the major update is that a police officer in Manitoba can take away your driver's licence if you are charged with a cell phone use ticket. The way it works is the officer seizes your licence and issues you a temporary licence so that you can drive yourself home (instead of the car being towed and impounded). After the temporary period ends, then it is against the law for you to drive for the next 3 days. If you get a second cell phone ticket and a second driving suspension, then it is a 7 day suspension.

How does the temporary licence work?

The temporary licence ends "at the end of the day following the day on which it is issued." So, if you are pulled over and given the ticket at 2pm on Monday, then the temporary licence lasts until Tuesday at 11:59pm. You add a full 24 hours and then go up to midnight on the following day.

When do I get my licence back?

You are required to give the police your physical driver's licence card. The police must return it to you "without delay" after the driving suspension ends. However, you are also required to pay a reinstatement charge with MPI. In some cases, if you are not issued a temporary licence (e.g. you didn't have a valid licence to begin with) and no one else is available to move the vehicle, then your vehicle has to be towed or impounded and you would also be required to pay those costs.

What are the other consequences?

There is still a fine of $203.80 and 5 demerits on your licence, which can really add up to big costs. For example, if your vehicle registration is $1,500 per year and you:

• start at +5 merits and drop to 0, your licence and registration will cost an extra $1,090 over the next 5 years ($7,085 instead of $5,995)

• start at 0 merits and drop to -5, your licence and registration will cost an extra $1,965 over the next 5 years ($9,050 instead of $7,085)

• start at -5 merits and drop to -10, your licence and registration will cost an extra $2,300 over the next 5 years ($11,350 instead of $9,050)

When can the police start doing this?

Technically, the law is already in effect. But police forces like the RCMP and the Winnipeg Police Service need to make sure they have proper procedures in place to administer new laws like this one. New standardized forms for this type of driving prohibition also need to be created. There is no saying how long it will take each police force to be up to speed, it could be weeks or even months. There may be a larger announcement in the media once police officers in Manitoba start handing out these temporary driving prohibitions, but there's no guarantee of that. So you should assume that if you get a cell phone ticket in MB, you're going to lose your licence for 3 days.

What about mounting your phone on your dashboard?

Yes, you can do that but there are a lot of rules about how you can do it and how you can use your phone when it is mounted. The HTA allows an exception for using your cell phone in your vehicle that says:

• the device (i) is a cellular telephone or another electronic device that includes a telephone function, and (ii) is configured and equipped to allow hands-free use as a telephone and is used in a hands-free manner

You have to be using an electronic device that can make and receive calls, so any cellphone with a SIM card would work. You cannot use other devices like an iPod touch or an iPad. The definition of "hands-free use" is found in one of the regulations of the HTA called the Cellular Telephones and Other Hand-Operated Electronic Devices Regulation and there are 4 parts that you have to follow perfectly or the exception will not apply:

• (i) it is not held in the user's hand while it is used,

• (ii) it is securely anchored to an interior surface of a vehicle, or held in a holder that is securely anchored to an interior surface of a vehicle, in a manner that does not interfere with the vehicle's safe operation,

• (iii) it is within easy reach of the driver's seat, and

• (iv) it is used and controlled exclusively by voice commands or, if it is touched during use, it is touched not more than once to initiate, accept or end a telephone call or to use or cease using a non-communication function of the device,

If you do mount a cell phone in your vehicle, it has to be within reach of the driver's seat and it shouldn't create a danger (like blocking the steering wheel or obstructing your view of the road). You can only use voice controls OR a single touch to accept/end a call OR a single touch to close or exit an app.

If you want to use your mounted phone for GPS or map directions, you should enter the address before you start driving and select "Start Directions" so you don't have to touch the phone again until you arrive at your destination.

If you want to use your mounted phone for making calls, you cannot browse through your contact list and select a person to call. You can only touch the phone once to accept an incoming call or to end a call. To me, it seems a lot easier to either use the built-in Bluetooth in your car or buy a Bluetooth headset (this is the one I bought years ago) and then use voice commands to make a call.

Related articles

• Cell Phones and Driving in Manitoba (June 2016 update) (michaeldyck.ca)

• Cell Phones and Driving in Manitoba (May 2015) (michaeldyck.ca)

• How much does it cost if you get a DUI? (And why it is cheaper to hire a helicopter) (michaeldyck.ca)

• Can You Have Alcohol in Your Car (michaeldyck.ca)

• Preventing a Break and Enter in Your Home: Tips From a Criminal Defence Lawyer (michaeldyck.ca)

About the author

Michael Dyck is a partner at Rees & Dyck Criminal Defence. He represents clients primarily from Winnipeg, Steinbach, and rural Manitoba. He has extensive experience helping people charged with criminal offences and focuses on building legal strategy with clients. To read more of his articles, please visit his partner's website TomRees.ca.