To combat the dangers of impaired driving, Parliament has granted enhanced investigative powers to police beyond those available for other criminal offenses. These powers allow police to encroach upon your rights more so than in other situations, specifically the right to counsel is suspended during detention, and police can collect bodily samples – breathe, blood, and urine – without a warrant. It is important to understand what your rights are during an impaired investigation and how it is different from other interactions with police.
Speaking with the police
The first right that you have during an impaired investigation is the right to silence. This right does not change from other criminal investigations and exists throughout your interaction with the police. As impaired investigations almost exclusively occur while driving, if stopped by the police you must still however identify yourself and provide the relevant documentation for the vehicle.
If police begin to question you about intoxication, you do not need to answer them as they are related to a potential criminal investigation. You can and should assert your right to silence.
Contacting your lawyer
The right to counsel is different during an impaired investigation. Normally, you have the right to counsel upon being detained. However, during an impaired investigation the right to counsel does not exist until you have been arrested, not simply pulled over. In the meantime, police can conduct tests to assess your level of impairment.
There are different tests police may use at the roadside. The test may consist of blowing into an Authorized Screening Device (ASD), a handheld device that detects the presence of alcohol in your breath. A similar handheld device can also be used to detect cannabis by collecting saliva using a cotton swab.
Police can also use the Standard Field Sobriety Test (SFST), where police assess your impairment by observing you perform a series of motor functions outside of your vehicle. The SFST is usually done when impairment by drugs is suspected.
You do not have the right to contact a lawyer before or during these tests. If the police ask you to perform any of these tests, you must comply with the demand or risk being charged with an additional criminal offense. If you refuse, or if you deliberately frustrate the test, you may be charged with refusal. The results of these tests are not considered evidence of impairment in court but are only for police to assess whether further testing is required.
If police determine that they have reasonable grounds you will be arrested for impaired driving. At this point, additional rights are engaged. The first is the right to counsel. During the arrest, police will ask if you wish to speak to a lawyer. You can either assert this right by responding “yes”, or decline. If you assert this right, police are obligated to hold off obtaining any additional samples until after you are provided an opportunity to contact a lawyer.
Speaking to counsel
The opportunity to contact a lawyer usually occurs at the police station when you are placed in a phone room. You should be provided contact information for various lawyers and legal services in your area. You do not have the right to have a lawyer present, but simply the right to contact a lawyer.
You can contact any lawyer you choose, including a free lawyer through Legal Aid. You also have the right to a reasonable opportunity to speak to a lawyer of your choice. Unfortunately, many impaired investigations occur at night and on the weekends when your preferred lawyer may be unavailable.
It would not be reasonable for police to wait for the next business day so you can speak to a specific lawyer. Leaving a message and waiting for a half-hour for a lawyer to respond may be reasonable but expecting police to wait several hours until the office opens would not. If you cannot contact the lawyer of your choice within a reasonable amount of time you may have to speak to a different lawyer or waive your right to counsel. Ensure you are satisfied with the legal advice you have been given because you will only get a second opportunity to speak to a lawyer in rare circumstances.
After you have had the opportunity to speak to counsel police will proceed with the investigation, including the collection of bodily samples without a warrant. Like the prior tests, you do not have the right to refuse. Refusing to cooperate or attempting to frustrate the testing may result in an additional criminal charge.
For suspected alcohol impairment, you will be asked to provide at least two breath samples into another device, which provides a more accurate analysis of your blood/alcohol concentration than the ASD. For suspected drug impairment, including cannabis, you will participate in a Drug Recognition Evaluation (DRE), where you will again perform a series of tests for police to assess your motor functions and concentration. Depending on the results of the DRE, you will be required to provide either a urine or a blood sample for drug analysis.
Once all the tests are complete, police will provide you numerous documents so you are aware of the results and when to appear in court. For drug impairment cases, you will be contacted once police receive the results from the lab – which may take several months – and you may be charged with an additional offense at that time. Finally, you have the right to reasonable bail, but in almost all cases, you will be released once all the testing is complete.