If you face allegations or charges of impaired driving, you may not be familiar with criminal law and your legal rights. You will likely experience high levels of anxiety and stress because of the potential consequences. No one wants one mistake to cause the loss of driving privileges through licence suspension, and a conviction resulting in jail time can be detrimental to your employment, your home life and your reputation.
You may not be aware that testing for blood alcohol content is not always 100 percent accurate, and law enforcement could have made errors in the testing or arrest procedures that might benefit your defence.
Understand the impaired driving law
Under the impaired driving laws in Alberta, the level of alcohol in the blood of a person who has care or control of a vehicle may not exceed 80 milligrams of alcohol per 100 millilitres of blood. The legal reference to this law is “over 80.” When you are pulled over by law enforcement, any of the following could potentially apply to your situation:
- Signs of impairment: Officers will look for any signs that may indicate impairment by alcohol or drugs — both prescription and over-the-counter drugs or any chemicals that may impair you. The first indication may be irregular driving that initiates a traffic stop. Further signs may include the smell of alcohol, bloodshot or glassy eyes, slurred speech, unsteady walking, and any other indications of impairment.
- Care and control: You do not have to be driving the vehicle for an impaired driving arrest. If you are in a vehicle and believed to have the potential to put it in motion, an officer can consider you in care and control of it. This could even happen if you sit sleeping in the passenger seat. However, they will have to prove that you drove or intended to drive the vehicle.
- Providing breath or blood samples: You do not have the right to refuse to provide a breath or blood sample — except if you have a valid reason. For an officer to arrest you, he or she can use a portable roadside screening device, which is only an informal test. However, a positive result could lead to a formal breath or blood test as soon as possible — at which stage you can call a lawyer.
- The testing procedures: Officers can then take you to a police station or a mobile testing facility for a Breathalyser test. You must then blow into the machine’s tube to provide two breath samples with at least 15 minutes between the two tests. If there is a valid reason that makes it impossible to take a breath test, the officer may take you to a hospital or an approved facility for a blood test.
- Requirements for a blood test: The officer must have reasonable grounds to seek a blood test rather than a breath test, and only a qualified individual may draw your blood. Furthermore, you must give approved consent before the blood test, or the officer must receive the permission of a judge to take blood. If your test — either breath or blood — indicates an “over 80” level, you must receive documented proof of the result.
Who can protect your rights?
From the moment that the police ask for a breath or blood test, you may seek legal counsel. This will give you the opportunity to get answers to your questions and concerns, and can begin the process of providing you with much-needed guidance between this difficult time and any future criminal defence proceedings.