Ask a Lawyer – “When can a police officer demand that I take a breathalyzer test?”

The current Criminal Code of Canada gives broad discretion to peace officers, including police officers, to demand that a person take a breathalyzer test, including but not limited to the following situations:

  • The officer has reasonable grounds to suspect that the person has some amount of alcohol or drugs in their body and that the person has driven a vehicle within the last three hours;
  • The officer has reasonable grounds to believe that a person has driven while impaired to any degree by alcohol or drugs;
  • The officer has reasonable grounds to believe that within two hours of driving a vehicle, a person has a blood alcohol concentration that is equal to or exceeds 80 mg of alcohol in 100 mL of blood;

The question of what constitutes “reasonable grounds to suspect” and/or “reasonable grounds to believe” depends on each particular situation as a whole. Some relevant factors include: avoiding eye contact, red or watery or droopy eyes, enlarged pupils, flushed face, stuttered speech, alcohol smell on the breath or coming from the vehicle, open alcohol in the vehicle, fumbling, unsteady walk/wavering, very deliberate or slow movements, erratic or dangerous driving, speeding, a car accident (and the accident scene), and eyewitness reports regarding any of these factors.

Usually, more than one of these factors are present and are considered altogether, when a court decides that an officer’s suspicion or belief was reasonable, and that it was appropriate for the officer to have asked for a breathalyzer test to be taken.   For further information, please contact us to speak to one of our lawyers.

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