Topic: Steering You Right: Random breath tests

[Jaeger]

8. Everyone has the right to be secure against unreasonable search or seizure.

The Ontario HTA (Highway Traffic Act) currently allows for random stops to check for:

- Vehicle registration
- Driver license validity
- Soberity
- Mechanical fitness

However as a breathalyzer sample is considered seizure of evidence under Section 8, they need to first establish probable cause. If you're slurring your words, were weaving, driving erractically, or you roll down the window and it reeks of Johnnie Walker Blue Label to where the officer can smell it from outside the car, then they can request a sample. RIDE programs have a similar requirement.

This new law would allow an officer to randomly stop someone, and the first thing presented to them is a breathalyzer with an order to blow or go to jail. No probable cause would have been established at this point, so collection of evidence is not justified.

Nope.  Within the confines of a RIDE program, you can be randomly stopped to investigate possible drinking and driving.  You can be given a roadside screening demand if the officer suspects ( and /or you confirm) that you have consumed alcohol.  He / she does NOT have to have reasonable grounds to believe that you are impaired - merely a suspicion that you have consumed alcohol.  Refusal to submit to that demand for a roadside breath sample (again, based on the combination of a random stop and reasonable suspicion of consumption) is, in itself, a criminal offense.

That is the law today and this law has passed constitutional scrutiny.  I don't see the proposed legislation as a wholesale change - merely an expansion of the existing regime.

Jaeger

I accept that that suspicion is reasonable grounds.  An experienced police office's "suspicion" is based on his/her experience and I'd bet is usually correct. 

 The Supremes were right GIVEN that wording in the Charter. I would argue that the Charter is wrong and that  both the clause you quote and the Notwithstanding clause should not be there and if Trudeau had had his way they wouldn't be.
Some rights should be absolute.   Refusing to be tested for drunk driving is certainly not one of them but being able to go about your private business without being randomly accosted by a police officer  should be.

As Toolate says  its the Random is the problem not the prevention of drunken driving.

Well, I don't find the random nature of RIDE stops to be any kind of a "problem" at all.

Jaeger

[toolatecrew]

8. Everyone has the right to be secure against unreasonable search or seizure.

The Ontario HTA (Highway Traffic Act) currently allows for random stops to check for:

- Vehicle registration
- Driver license validity
- Soberity
- Mechanical fitness

However as a breathalyzer sample is considered seizure of evidence under Section 8, they need to first establish probable cause. If you're slurring your words, were weaving, driving erractically, or you roll down the window and it reeks of Johnnie Walker Blue Label to where the officer can smell it from outside the car, then they can request a sample. RIDE programs have a similar requirement.

This new law would allow an officer to randomly stop someone, and the first thing presented to them is a breathalyzer with an order to blow or go to jail. No probable cause would have been established at this point, so collection of evidence is not justified.

Nope.  Within the confines of a RIDE program, you can be randomly stopped to investigate possible drinking and driving.  You can be given a roadside screening demand if the officer suspects ( and /or you confirm) that you have consumed alcohol.  He / she does NOT have to have reasonable grounds to believe that you are impaired - merely a suspicion that you have consumed alcohol.  Refusal to submit to that demand for a roadside breath sample (again, based on the combination of a random stop and reasonable suspicion of consumption) is, in itself, a criminal offense.

That is the law today and this law has passed constitutional scrutiny.  I don't see the proposed legislation as a wholesale change - merely an expansion of the existing regime.

Jaeger

I accept that that suspicion is reasonable grounds.  An experienced police office's "suspicion" is based on his/her experience and I'd bet is usually correct. 

 The Supremes were right GIVEN that wording in the Charter. I would argue that the Charter is wrong and that  both the clause you quote and the Notwithstanding clause should not be there and if Trudeau had had his way they wouldn't be.
Some rights should be absolute.   Refusing to be tested for drunk driving is certainly not one of them but being able to go about your private business without being randomly accosted by a police officer  should be.

As Toolate says  its the Random is the problem not the prevention of drunken driving.

Well, I don't find the random nature of RIDE stops to be any kind of a "problem" at all.

Jaeger

Ride stops don't alow RANDOM searchs.

Ride stops give police the opportunity to determine if there is cause to do breath test.

We don't have a Ride program in NS but they were doing a random stop on the long weekend. I had the kids in the car and they stopped us asked "how are you tonight everyone buckled safley" looked at the saftey inspection to make sure it was valid, looked to see if we were wearing seatbelts and sent us on our way.

I was never touched, the officer did not enter the car and I didn't leave the car.

Simply not the same as stopping me and saying get out of the car and come do a breath test or you are under arest.

[Jaeger]

Ride stops don't alow RANDOM searchs.

Ride stops give police the opportunity to determine if there is cause to do breath test.

We don't have a Ride program in NS but they were doing a random stop on the long weekend. I had the kids in the car and they stopped us asked "how are you tonight everyone buckled safley" looked at the saftey inspection to make sure it was valid, looked to see if we were wearing seatbelts and sent us on our way.

I was never touched, the officer did not enter the car and I didn't leave the car.

Simply not the same as stopping me and saying get out of the car and come do a breath test or you are under arest.

That's a thin distinction.  The RIDE stop is entirely random - the officer has no reason to believe you have committed an offence when he stops you.  This random stop is also a deprivation of your liberty - you are not free to ignore the direction to pull over - try it, if you don't believe me.  While stopped you are "detained" in legal terms by the police.  Normally, such detention attracts a mandatory caution about your rights to a lawyer, etc. - but again - there is a constitutionally permitted "reasonable limit" on your rights to counsel here. 

Now, while randomly stopped and detained, and without the need to advise you of the rights to counsel, the officer is free to engage in an effort to ascertain whether you have consumed alcohol.  If he suspects you have, he can demand you provide a sample of your breath into a roadside screening device.  Thaht's a seizure of your breath for investigative purposes that you are not permitted to refuse.  The officer CAN compel you to exit the car.  He can also compel you to provide roadside sobriety tests - like walking a straight line heel-to-toe, tiping your head back with your eyes closed, touching finger tip to nose, etc.  Flunking those can lead to your arrest on a charge of imparied / over 80, and a trip to the nerest police station with a breathalyzer technician.

ALL of which is the result of a random stop..

Jaeger

[toolatecrew]

Ride stops don't alow RANDOM searchs.

Ride stops give police the opportunity to determine if there is cause to do breath test.

We don't have a Ride program in NS but they were doing a random stop on the long weekend. I had the kids in the car and they stopped us asked "how are you tonight everyone buckled safley" looked at the saftey inspection to make sure it was valid, looked to see if we were wearing seatbelts and sent us on our way.

I was never touched, the officer did not enter the car and I didn't leave the car.

Simply not the same as stopping me and saying get out of the car and come do a breath test or you are under arest.

That's a thin distinction.  The RIDE stop is entirely random - the officer has no reason to believe you have committed an offence when he stops you.  This random stop is also a deprivation of your liberty - you are not free to ignore the direction to pull over - try it, if you don't believe me.  While stopped you are "detained" in legal terms by the police.  Normally, such detention attracts a mandatory caution about your rights to a lawyer, etc. - but again - there is a constitutionally permitted "reasonable limit" on your rights to counsel here. 

Now, while randomly stopped and detained, and without the need to advise you of the rights to counsel, the officer is free to engage in an effort to ascertain whether you have consumed alcohol.  If he suspects you have, he can demand you provide a sample of your breath into a roadside screening device.  Thaht's a seizure of your breath for investigative purposes that you are not permitted to refuse.  The officer CAN compel you to exit the car.  He can also compel you to provide roadside sobriety tests - like walking a straight line heel-to-toe, tiping your head back with your eyes closed, touching finger tip to nose, etc.  Flunking those can lead to your arrest on a charge of imparied / over 80, and a trip to the nerest police station with a breathalyzer technician.

ALL of which is the result of a random stop..

Jaeger

ALL cars driving on that road at that time are stopped are they not? Do they lest some cars drive through and stop only some? That's random.

Stopping every car that passes through that road is not random. The location might be random but anyone in that location is treated equally. Once again the search is not random. they only search if they have CAUSE. They don't question people randomly they question ALL of them. They don't pick people to take a breathntest at random. they pick people if they have cause.

Is it a huge distinction? No but it is one none the less. They still need to stand up in court and give a reasonable bais for why they required a breath test. They need to show cause. Without this they can just decide to force a breath test on someone becuase they are black, drive a fancy car or they saw the guy with their ex last night.

[rrocket]

You don't have to be at a RIDE program to get a random breath test.  If he "suspects" you've been drinking, he can administer sobriety tests, including a breathalizer.

After having my rights violated at a random stop, I've educated myself on what can and can't be done/said.  THus far, I've received 2 written apologies from 2 police forces for violating my rights.

[goodsonr]

Yes - these are slippery slopes that can quickly change a police office from a potential friend to a potential foe.  As mentioned - do we using the same reasoning to now allow a police office to randomly come and search my house.  So, when I see that police cruiser going down my street will I think he is there to protect me or harrass me.

One of my less comfortable experiences was sitting in a departure lounge waiting for my airplane in Lima -- with the armed guards wandering by giving everybody the eye ostensibly looking for someone smuggling artifacts.  Every so often they would tap someone on the shoulder and take them away (I was told usually to shake them down for a few bucks before they could leave the country).  When they went by me I was silently praying to myself "not me not me not me not me".  Is this how I will eventually feel about police officers who can do what they want when they want all in the name of protecting society.  No thanks.

[safristi]

...

[Jaeger]

ALL cars driving on that road at that time are stopped are they not? Do they lest some cars drive through and stop only some? That's random.

You really are making no sense at all.  Though in fairness, you say you have no experience with the RIDE program.  It is the fact that drivers are stopped without cause that makes the stop random. No, they don't stop every car in he province - just as many as they can deal with at the RIDE checkpoint.   The police DO question every driver they randomly stop - it's how they make the determination if they have a suspicion that the driver has consumed alcohol.  You are stopped at random.  You are detained when you are stopped.  You can be compelled to provide a sample of breath for roadside testing.  You cannot refuse the roadside breath test if demanded to do so.  All of this is constitutionally permissible.  The Supreme Court has said so.  More than once.  You may wish it were otherwise, but that and five bucks will get you a fancy coffee at Starbucks.  Basically, your assertion that "randomness is the problem" is completely wrong.  At least as far as the law in concerned.

Jaeger

[toolatecrew]

ALL cars driving on that road at that time are stopped are they not? Do they lest some cars drive through and stop only some? That's random.

You really are making no sense at all.  Though in fairness, you say you have no experience with the RIDE program.  It is the fact that drivers are stopped without cause that makes the stop random. No, they don't stop every car in he province - just as many as they can deal with at the RIDE checkpoint.   The police DO question every driver they randomly stop - it's how they make the determination if they have a suspicion that the driver has consumed alcohol.  You are stopped at random.  You are detained when you are stopped.  You can be compelled to provide a sample of breath for roadside testing.  You cannot refuse the roadside breath test if demanded to do so.  All of this is constitutionally permissible.  The Supreme Court has said so.  More than once.  You may wish it were otherwise, but that and five bucks will get you a fancy coffee at Starbucks.  Basically, your assertion that "randomness is the problem" is completely wrong.  At least as far as the law in concerned.

Jaeger

if they have a suspicion that the driver has consumed alcohol.

This is not random. This is suspicion of being under the influence.

Driving down the road turing ion the lights at random pulling you over and hauling you out of the car forcving you to take a breath test or be arested is random.

I don't know why you can't acknowledge the difference between selecting people for a breth test based on SUSPICION of drinking and picking people for a test based on car, color, skin color or some other non related measure.

It basically eliminates the publics protection against racial profiling etc.

NOW: Why did you require the defendant to subit to a breath test?
He was sluring his words and I could smell alcohol.

Future: Why did you require the defendant to submit to a breath test?
I felt like it we decided today we'd stop people with plates that start with 1. Yesterday we stopped black people. Tomorrow we'll stop people who have aftermarket wheels.

[ArticSteve]

I quite agree that USUALLY, probably 90%+ the Police will use their powers for good and in a legal way. Those few on the edge are the dangerous ones... helped on by demagogue politicians.

So true.  I'd say 10% of cops are dangerous who lurk under the very odd dynamics of a paramilitary structure.

If the CONS are so concerned about drinking and driving then BAN the consumption of alcohol.  Make it a criminal offense like WEED.

Unfortunately for ppl like me, many Canadians are willing to forfeit their liberty for a false sense of security.  History offers endless examples.

Intelligent people tend to make socially desirable choices without prodding or incentive more often than less intelligent people do, so that a high IQ society does not have to trade much away for high levels of personal liberty, while lower IQ societies must.

Well we see next election.  Currently, the dumb ones are prevailing. 

[robsaw]

"I don't consider this an insidious intrusion upon my personal freedom because a) I have nothing to hide"

This is essentially the famous last words of naive citizens before every nation is slid into a totalitarian regime.

In a free country it is the government that must seek approval to invade its citizens' privacy, it is not the citizens' need to prove a need to "hide".  This is the essential concept of liberty.  If you disagree, you disagree with liberty and freedom and rather support fascism.

[Steve]

Too much of "alcohol freedom" is never good. Drunk drivers have to be punished more severely. But keep in mind that a lot of police officers are people expressing their complex of inferiority through exercize of pover over other people, as they were unable to accomplish anything great. This is very dangerous too.

[tpl]

Too much of "alcohol freedom" is never good. Drunk drivers have to be punished more severely. But keep in mind that a lot of police officers are people expressing their complex of inferiority through exercize of power over other people, as they were unable to accomplish anything great. This is very dangerous too.

I think that in places like Canada where Police officers are well trained it is a very small number like that.   However, in some places not too far away where police officers are essentially elected 'cos their name is Billy-Bob and they are related to the Mayor....

[Shnak]

Intelligent people tend to make socially desirable choices without prodding or incentive more often than less intelligent people do, so that a high IQ society does not have to trade much away for high levels of personal liberty, while lower IQ societies must.

Well we see next election.  Currently, the dumb ones are prevailing. 

Unfortunately, the dumb ones are killing some of the smart ones. If you can live with that, well good for you.

[Jaeger]

"I don't consider this an insidious intrusion upon my personal freedom because a) I have nothing to hide"

This is essentially the famous last words of naive citizens before every nation is slid into a totalitarian regime.

In a free country it is the government that must seek approval to invade its citizens' privacy, it is not the citizens' need to prove a need to "hide".  This is the essential concept of liberty.  If you disagree, you disagree with liberty and freedom and rather support fascism.

Nonsense.  It is the predictable bleating cry of the strident bleeding hearts: "FASCISM!" at every attempt to curb criminal activity.  Thankfully, our constitution contains a "reasonable limits" clause to help deal with those who would use their "freedoms" to run roughshod over others.  Drunk driving is criminal activity - it kills and it maims.  We have had random stops to check for drunk driving for years, yet somehow we have not descended into a fascist state (though if Harper ever gets a majority....).  So much for your theory that a totalitarian regime is a necesary result. 

Guess what - we DO live in a free deomocracy.  Laws such as this are the legislative product of elected officials.  And they exist to protect me and my family from the very real harm inflicted by drunk drivers and their freedom-loving enablers.  As I said - in the part of my comment you chose NOT to quote - I am willing to put up with a few minutes of inconvenience at the roadside in order to assist police in getting drunks off the road.  It won't be a longer delay than that because I DON'T have anything to hide.  A minimal intrusion such as this is well worth the price of securing my freedom of life, liberty and security of he person.  A freedom which can be quite terminally impaired by one drunken moron behind the wheel of a car.

Jaeger

[Jaeger]

I don't know why you can't acknowledge the difference between selecting people for a breth test based on SUSPICION of drinking and picking people for a test based on car, color, skin color or some other non related measure.

And I don't know why you can't acknowledge that the random deprivation of a constitutionally guaranteed right (as a consequence of a random ride stop resulting in your compulsory detention) HAS been held to be lawful by the highest court in the land.  But I am done riding that carousel with you.  Constitutionally speaking, random is not a problem.  Your odd attempts to turn this into a discussion about race are just that - odd -and contribute nothing.  Drunk drivers come in all colours.

Jaeger

[toolatecrew]

I am in no way condoning drunk driving. Nor am I happy that some people who may be guilty get off. However this website illustrates my point that Ride STOPS are simply not the same thing as random breath tests.

http://www.over80.net/pages/REFUSE_BREATHALYZER.cfm

It is an offence to not provide breath samples pursuant to a lawful demand from a police officer.


The operative word here is “lawful”. Many of the same defences that would apply to over 80 charge also apply to refuse charges. For example, if the prosecution is not able to establish that the officer making the demand had reasonable and probable grounds then this charge will fail. It is only the refusal to comply with a lawful demand that constitutes a criminal offence.

I am NOT saying RIDE stops are against the Charter of rights . They are not. I am not saying I have any issues with stopping people (we can argue definitions of random all day) . But asking for a breath sample without reasonable and probable grounds is clearly not legal today and its clearly in violation of the Charter of rights. What this new law proposes is to eliminate  the requirement for reasonable and probable grounds

I for one am not willing to give up my rights to refuse tests or searches if there is no grounds to suspect me of any wrongdoing. This will not in any way hamper RIDE programs or police stopping people SUSPECTED of drunk driving for further testing. It does however give me some measure of protection against being harassed by police for other reasons that have nothing to do with my committing any illegal acts.

[Jaeger]

Wow. Is this that big of an issue? You'd think that 9 out of 10 drivers on the road are wasted and that people are being killed everywhere and all the time. Drunk driving, is constructed as being a much worse thing than it is. Do innocent people die? Yes. Is it terrible? Okay. But it isn't such as issue that it requires random stops and a total "big brother" solution.

Well, let's consider how big of an issue the Supreme Court of Canada thinks it is - unless, of course, you want to group them with the sensationalizing media and agenda driven special interest groups.

Justice Cory. from R. v. Bernshaw:

" Every year, drunk driving leaves a terrible trail of death, injury, heartbreak and destruction. From the point of view of numbers alone, it has a far greater impact on Canadian society than any other crime.  In terms of deaths and serious injuries resulting in hospitalization, drunk driving is clearly the crime which causes the most significant social loss to the country."

After citing statistics for deaths and injury caused by impaired drivers, he observed:

"These dry figures are mute but shocking testimony demonstrating the tragic effects and devastating consequences of drinking and driving.  The social cost of the crime, great as it is, fades in comparison to the personal loss suffered by the victims and their loved ones. "


Hmmm - let's see... terrible trail of death and injury.... ... greater impact than any other crime.....most significant social loss to the country... tragic effects, devastating consequences...well,, that meets MY definition of "that big of an issue".  Others may take a different view.

Jaeger

[toolatecrew]

According to data from the Minnesota Department of Public Safety, motorists with just one prior DWI offense account for nearly 20-percent of all alcohol-related deaths each year. Of those first-time offenders, 40-percent are likely to reoffend.

http://thegovmonitor.com/world_news/minnesota-governor-pawlenty-gets-tough-on-drunk-driving-offenders-22358.html

Want to cut drunk driving fatalities by 20%. Toughen the penalties and keep the repeat offenders off the road instead of spending police reasources stopping every Tom Dick and Harry at random hoping to catch someone.

One of the justifications for random testing is that in some other ineternation surveys that fatal crashes were reduced by 22%. Well we can get that same % decrease without infirning on people's rights by simply taking the convicted offenders off the road.

What really makes more sense? Removing the right to drive from someone convicted of drunk driving or removing the rights of inoccent people?

In fact there are several studies that show that NARCOTICS on their own are involved in accidents in numbers that often rival Alcohol !

One study found that about 34 percent of motor vehicle crash victims admitted to a Maryland trauma center tested positive for “drugs only”; about 16 percent tested positive for “alcohol only.” Approximately 9.9 percent (or 1 in 10) tested positive for alcohol and drugs, and within this group, 50 percent were younger than age 18.4  Although it is interesting that more people in this study tested positive for “drugs only” compared with “alcohol only,” it should be noted that this represents one geographic location, so findings cannot be generalized. In fact, the majority of studies among similar populations have found higher prevalence rates of alcohol compared with drug use.5

http://www.drugabuse.gov/infofacts/driving.html
So the next logical step after random breath test must be random drug testing right?  That's the slope you start down.

For the record I basically don't drink (no not even one drink before driving and I don't drink at home either just a persoanl choice). I have never done drugs. I have nothing to fear..far less than most. I don't feel I should be randomly subjected to drug testing on the whim of somepolice officer becuase he's borded, doesn't like me or any other number of reasons.

[Jaeger]

"Removing the rights of innocent people!!!!"

Wow, you'd think people were being pulled of the street, beaten with a stick and clapped in irons.  By "removing the rights of innocent people" I take it you mean pulling them over and having them blow into a breath machine?  Kinda like they are required to do now under a RIDE program?  Those who blow a "pass" at a RIDE check are "innocent" aren't they?  And yet they were compelled to blow into that awful machine all the same.  How traumatizing.    They must feel they are living in a fascist, totalitarian state!

Toughening penalities?  I'm all for it.  But you can't penalize them if you don't catch them.  These measures will allow more drunk drivers to be caught, so I'm all for that, too.  This nonsense about the police being required to 'stand up in court and explain why they made the stop' only is engaged if the person FAILED the screening device test, then FAILED the subsequent breathalyzer test (failing the screening device is not, in itself, an offence).

Truly innocent people suffer no more inconvenience now than then - 10 minutes to blow into a machine - if that much.  I can live with that crushing loss of "freedom" if it will save lives.

You may weep for the rights and freedoms of the guy who blows a fail on the random roadside test then blows double the limit on the breathalyzer, but I won't be weeping with you.  I'll be cheering for the truly innocent families whose lives he WON'T ruin by driving - and crashing - drunk.

Jaeger