Get the facts about where and when police can demand a breath test.

Despite existing law, and education and awareness efforts, impaired driving continues to be a leading criminal cause of death in Canada, claiming hundreds of lives and causing tens of thousands of injuries each year.

Canada now has a new enforcement tool that will reduce impaired driving and prevent crashes, deaths and injuries. Mandatory alcohol screening authorizes police to demand a breath sample from any driver lawfully pulled over. It greatly increases the number of drivers screened for impairment, resulting in more impaired drivers being detected. Equally important, it greatly increases the perception that if you drive impaired, the chance of getting caught is high.

It is important to note that mandatory alcohol screening does not give police new powers to stop drivers; police already have the power to pull drivers over. What it does is give police the ability to demand a breath sample from any driver they have lawfully stopped. The result from a mandatory screening test is not used to lay a Criminal Code charge; rather, the results from that first breath test give police the grounds to demand a second test on a more sophisticated machine.

The results from that second test are used as the basis of a Criminal Code charge and are used for evidentiary purposes in court. The mandatory screening results can, however, be used for the purposes of provincial and territorial administrative sanctions, such as licence suspensions and vehicle impoundments.

Mandatory alcohol screening is widely recognized as one of the most effective anti-impaired driving measures available. More than four decades of international research illustrate the benefits of mandatory alcohol screening. It has been adopted in New Zealand, Australia and most European countries, and has helped to reduce overall road crashes and fatalities.

This measure will save hundreds of lives and prevent thousands of injuries every year in Canada. MADD Canada has long called for the introduction of mandatory alcohol screening. It is the most consequential federal law aimed at preventing impaired driving in many, many years, and we are very pleased to see this life-saving measure enacted.

Please see below for answers to some of the common questions about Mandatory Alcohol Screening.

For more information, please see:

Frequently Asked Questions

Mandatory alcohol screening (also called random breath testing) is a roadside breath screening test to detect impaired drivers. The test itself is not new as the police will continue to use the same roadside breathalyzer devices they currently use. What it does is give police the ability to demand a breath sample from any driver they have lawfully stopped. The result from the screening test are not used in court as the basis of a Criminal Code charge – rather, the screening test result gives police grounds to demand a second test on an approved screening device. The results from that second test can be used as the basis of a Criminal Code impaired driving charge and used in court for evidentiary purposes.

Although the screening test cannot be used in court, it can be used for the purposes of provincial and territorial administrative sanctions, such as the short-term licence suspensions and vehicle impoundments many jurisdictions impose on drivers in the BAC warn range of .05% – .08% BAC (.04% – 08% BAC in Saskatchewan). Thus mandatory alcohol screening will ensure that drivers who are under the effect of alcohol will be sanctioned even if they cannot be charged criminally.

The previous laws around breath screening tests have not served as a meaningful deterrent to impaired driving. Under those laws, police could only demand a roadside breath sample if they had reasonable grounds to suspect the driver had been drinking. They had to rely on behavioural clues and observations. The problem is, however, that people do not always exhibit obvious signs of intoxication, particularly those who routinely drink and drive. As a result, the majority of drinking drivers have been going undetected at sobriety checkpoints.
Canada has long had one of the poorest impaired driving records among comparable countries. The U.S. Centers for Disease Control and Prevention reported that Canada had the highest percentage of alcohol involvement in crash deaths among 20 high-income countries in 2013, even though it has one of the lowest rates of alcohol consumption. Canadians drink considerably less than residents of many other countries and yet are much more likely to die in an alcohol-related crash.
The laws in these countries have done a far better job of separating drinking and driving. Not surprisingly, almost all of these countries have comprehensive mandatory alcohol screening programs. In its 2015 Global Status Report on Road Safety, the World Health Organization stated that 121 out of 180 countries had mandatory alcohol screening programs of some kind.

Mandatory alcohol screening is widely acknowledged as one of the most effective means of deterring impaired driving. It has been adopted in the great majority of comparable, developed democracies, resulting in significant and sustained reductions in overall road crashes and fatalities. Here are just a few examples:

  • In Queensland, Australia, mandatory alcohol screening was estimated to have reduced total fatal crashes by 35% between 1988 and 1992, preventing an estimated 789 fatal crashes.
    (Source: https://infrastructure.gov.au/roads/safety/publications/1997/pdf/Alc_Random.pdf )
  • New South Wales’ mandatory alcohol screening program was estimated to have prevented 522 serious crashes, 204 fatal crashes and 686 single-vehicle night-time crashes in its first year.
    (Source: https://infrastructure.gov.au/roads/safety/publications/1997/pdf/Alc_Random.pdf )
  • In Ireland, the introduction of mandatory alcohol screening in 2006 was credited with saving 92 lives in the initial 12 months and reducing all traffic-related hospital admissions by 10% in the first 6 months compared to the corresponding period in the previous year.
    Source: http://alcoholireland.ie/policy/policy-documents-2/

Given the results in other countries where mandatory alcohol screening is being used, MADD Canada estimates the measure will reduce impaired driving in this country by about 20% annually.

That is more than 200 lives saved and more than 12,000 injuries prevented every year.

Prior to mandatory alcohol screening, police were able to demand a roadside breath sample only if they had a reasonable suspicion that the driver had been drinking. The officer’s reasonable suspicion was based on behavioural clues and observations (manner of driving, the odour on a driver’s breath, lack of coordination, bloodshot eyes, and slurred or indistinct speech). The difficulty with that process is that, in the brief interaction with police, only a small percentage of drinking drivers exhibit clear and obvious signs of intoxication, particularly if they routinely drink and drive.

The existing law has not been an effective deterrent. Millions of Canadians continue to drink and drive, in part, because the likelihood of ever being stopped or charged is low.

By authorizing police to demand a breath sample from any driver lawfully stopped, the number of drivers screened and objectively analyzed is greatly increased, resulting in more impaired drivers being caught. The new measure also greatly enhances the deterrent impact of our impaired driving laws because drivers know if they are stopped, they can be asked for a breath sample.

The process will work the same way as it currently does. If a driver fails a mandatory alcohol screening test on the roadside breathalyzer, police can then demand a second, more sophisticated test on an approved screening device. Only the results of that second test can be used as grounds to lay a Criminal Code impaired driving charge.

The results of the first test can, however, be used to suspend a driver’s licence or impound his/her vehicle, under provincial/territorial administrative programs. These are not Criminal Code charges, but rather administrative penalties such as short-term licence suspensions and vehicle impoundments which many jurisdictions impose on drivers in the BAC warn range of .05% – .08% BAC (.04% – 08% BAC in Saskatchewan).

The process won’t take any longer than the process drivers face now at existing sobriety checkpoints. Most drivers don’t have to get out of their cars, the process is routine, quick and causes minimal delays for sober drivers.

Mandatory alcohol screening will certainly be challenged under certain sections under the Charter of Rights (specifically under the sections dealing with unreasonable search and seizure, arbitrary detention and the right to counsel). But we believe – and legal experts agree – that mandatory alcohol screening will successfully withstand that challenge.
Drivers are already required to provide their drivers license, ownership and insurance information when requested by police. This is not that different. Nor is it different than the 109 million searches at airports, the 52 million searches at borders, and the countless searches at the entrances to courtrooms and many other government buildings conducted each year. Those screening procedures at airports, borders and courts can be considerably more invasive and time-consuming than mandatory alcohol screening, and they have been upheld in the courts because they help ensure public safety.
Alcohol-related crashes pose a far greater risk to Canadians daily than attacks at our airports, borders or courts. Mandatory alcohol screening is less intrusive, inconvenient and stigmatizing than many of these other screening procedures, operates in the same way and serves the same protective purposes. Given that the courts have upheld the constitutionality of these other screening procedures, there is no principled basis for reaching the opposite conclusion regarding mandatory alcohol screening.
For more on the constitutionality of mandatory screening and its effectiveness in reducing impaired driving, please see “Why Mandatory Screening”, an article authored by three leading academic researchers with expertise and experience in the field of traffic safety, and “Constitutional Power of Random Breath Testing”, an opinion by Canada’s leading constitutional law scholar, Peter Hogg.

The simple answer is no. These stories conflate two distinct breath testing provisions:

  • Bill C-46’s new mandatory roadside alcohol screening provision, which does not require individualized suspicion of drinking and driving; and
  • the long-standing power of the police to demand that an individual, who they have reasonable grounds to believe has committed an impaired driving offence, submit to evidentiary breath testing.

Mandatory alcohol screening only applies to individuals who are driving. The police can only make a demand if they have lawfully stopped the driver, the demand is made immediately on stopping the driver and the officer has an approved screening device in his or her possession.

The Canadian Criminal Code was amended in 1969 to authorize police to demand that individuals submit to evidentiary breath testing (not mandatory alcohol screening) in specified circumstances. The police could invoke this power whether the individual was driving or had left the scene and was found at home or elsewhere shortly thereafter. Thus the police have long had the power, during the course of an impaired driving investigation, to come to the residence of a suspected impaired driver and demand that he or she accompany them to the police station and submit to evidentiary breath testing. However, the police can only make this demand if:

  • they have reasonable grounds to believe that an individual committed an impaired driving offence;
  • they inform the individual of his or her right to consult with a lawyer and give him or her an opportunity to do so; and
  • the testing is conducted by a person qualified to conduct evidentiary breath tests on an “approved instrument” (not the roadside screening device used in conjunction with the mandatory alcohol screening test).

The police are very unlikely to approach an individual at home, unless he or she caused a crash and fled the scene, or were described by reliable witnesses as being drunk while driving.

There is nothing new or unique about the police going to a suspect’s home in the course of conducting an impaired driving or other criminal investigation. However, even in these circumstances, the individual can only be compelled to submit to evidentiary breath testing if the police had reasonable grounds to believe that he or she had committed an impaired driving offence.

For a detailed Government backgrounder outlining the new laws, please click here.

Once again, the simple answer is no. This conflates two distinct provisions of the Criminal Code.
Bill C-46 makes it an offence (subject to a major exception) to have a blood-alcohol concentration (BAC) of .08% or more within two hours of having driven (the two-hour rule).

However, the Bill specifically states that no offence is committed if: the alcohol was consumed after driving; the individual had no reason to expect that he or she would be required to submit to a breath or blood test; and the individual’s evidentiary BAC is consistent with being below .08% when driving.

This two-hour rule was enacted to address two questionable defences (the bolus drinking and intervening drink defences) that impaired drivers commonly used to evade criminal conviction despite having a BAC well above the Criminal Code limit.

  • The Bolus Drinking Defence. This defence is typically based on an accused’s claim that he or she drank a large quantity of alcohol just before driving and that the police stopped him or her very shortly thereafter. The accused alleges that this recently consumed alcohol had not entered his or her blood stream when he or she was stopped by the police. Thus, the accused claimed that the BAC was below the legal limit when driving and only rose above the limit during the 1.5 – 2 hour interval from the time he or she stopped driving until he or she took the evidentiary breath tests.
  • The Intervening Drink Defence. This defence is based on accused’s claim that he or she consumed alcohol after driving but before submitting to evidentiary breath testing. As in the case of the bolus drinking defence, the accused alleges that his or her BAC was below the legal limit while driving. In some intervening drink cases, the accused claimed that he or she consumed alcohol at the scene of the crash before the police arrived. In other cases, the accused fled the scene, went home and had several drinks. In both scenarios, the accused uses the intervening drink defence to claim that he or she was sober at the time of the crash, but drank afterwards to ‘calm his or her nerves.’

Contrary to what some media stories have stated, the two-hour rule does not give the police any new powers to demand a breath test. The police cannot require an individual who is sitting at home to submit to mandatory breath screening. However, as has always been the case, the police can go to an individual’s residence in the course of investigating an impaired driving or other criminal offence. If, on completing their investigation, the police conclude that there are reasonable grounds to believe that the individual committed an impaired driving offence, they may demand that the individual accompany them to the police station and submit to evidentiary breath testing. This is not new.

For a detailed Government backgrounder outlining the new laws, please click here.