Impaired Driving

Breath Test Differences

What is the Difference Between a Roadside Breath Test and One Done at the Police Station?

A screening device is the machine the police sometimes use at the roadside if they reasonably suspect you to have alcohol in your body.

The Alcotest 7410 GLC is the most commonly used approved screening device in Ontario. This machine is used by the police as an investigative tool in situations where they may not have enough evidence to arrest you for Impaired Driving or Over 80. This tool would often be used, for example, in circumstances where you have been stopped at a R.I.D.E spot check or for a Highway Traffic Offence like speeding, and the officer detects an odour of alcohol coming from your breath or you admit to having recently consumed alcohol.

There are three possible results that you could register when blowing into a roadside screening device. These are a “pass”, a “warn” and a “fail”. The screening device is supposed to be calibrated to register a pass if you blow between 0 and 50 mgs of alcohol per 100 mLs of blood (0.05 and 0.08). A warning should register if you blow between 0.05 and 0.08. Although you should not be arrested for Over 80 if you blow a warn, an individual caught with a blood alcohol level between 0.05 to 0.08 now faces a three-day licence suspension and a $150 fine. Motorists caught a second time (within five years) face a one-week suspension and will have to attend an alcohol education program (Back on Track) and pay a $150 fine. Penalties for those caught a third time include a loss of their licence for a month and the installation of an ignition interlock device for six-months. Anything over 100 (0.1) should register a “Fail”, giving the officer grounds to arrest you for driving over the legal limit.

The result of the screening device test cannot be used in and of itself to prove the over 80 charge. For the purpose of a criminal charge, the result can only be used to give the officer sufficient grounds to make an arrest for Over 80 and to demand that you provide breath samples into an approved instrument. The result can also be used for the purpose of penalizing by fine and license suspension under the Highway Traffic Act (H.T.A.)

The machines used at the police station/detachment to determine your precise Blood Alcohol Concentration are the “Intoxilyzer 5000C” or the “Breathalyzer”. The “Breathalyzer” is an older instrument that is still used in some rural areas of the province. These machines are called approved instruments because Parliament has designated them as such in the Criminal Code. Only approved instruments that are operated by a qualified breath technician can be used to determine your Blood Alcohol Conentration (B.A.C.) if the results are to be used to convict you of the Over 80 offence. Although typically found in police stations, these machines are occasionally located on mobile units that the police sometimes use at R.I.D.E. Spot Checks.

Cases Related to Breath Tests

  • Breath Test Charges Stayed Related to: Acquittal, Arbitrary Detention, Breath Test, Charges Withdrawn, No Jail

    My client was charged with Refusing to Provide a Breath Sample at the side of the road.  The police stopped M.F.’s vehicle after seeing it mount the curb as it made a turn.  The police could smell alcohol on my client’s breath and demanded that he do a roadside breath test.  My client made several attempts to provide a sample but none registered and the officer thought my client was screwing around and arrested him for Refuse.  He was then taken to the police station where the police held him for several hours because they thought he was being belligerent.  Prior to the trial, I filed an Charter application alleging that my client’s right to be free from arbitrary detention was violated because there was no need for him to be taken to the police station and held for several hours.  On the morning of trial, I spoke to the Crown who decided not to oppose my application and stayed the charge against my client.  For my client, this result meant the same thing as an acquittal or a withdrawal of the charge.

  • Acquittal for Over 80 Breath Test Charges Related to: Acquittal, Breath Test, Drive Over 80 Criminal Cases

    The police received a call regarding a severely damaged vehicle located at the side of a quite stretch of highway, partially in a live lane.  When police arrive, they found D.B alone in the vehicle and fast asleep in the passenger seat.  The police could see that my client was obviously intoxicated and arrested him for Impaired Care or Control.  He was taken to the police station where he was charged with Over 80 as well after blowing well over the legal limit. At trial I successfully argued that the Crown had not proven beyond a reasonable doubt that my client was in care or control of the vehicle and he was acquitted.

  • Over 80 Breath Test Charges Acquittal Related to: Acquittal, Breath Test, Drive Over 80 Criminal Cases

    My client was charged with Drive Over 80.  The police received a call from the doorman of a bar that had turned my client and a couple of his friends away, believing they were drunk.  The doorman had given the police the license plate number of my client’s vehicle and a few minutes later my client was stopped.  He failed the breath test at the side of the road and was taken to the police station where he registered breath readings of 180.  My client was acquitted at trial after I successfully argued that the breath technician’s testimony did not prove that one of the technical requirements to prove the charge had been satisfied.

  • Impaired Driving Charges Reduced to Careless Driving – No Criminal Record Related to: Bad Driving, Breath Test, Drive Over 80 Criminal Cases, Impaired Driving, No Criminal Record

    My client was charged with Impaired Driving and Over 80. The allegations included high breath test results and what was described as very bad driving. At trial, after the crown had completed their case and I had cross-examined the officers, it was revealed that a video taken of my client at the police station had been recorded but not disclosed to me despite my previous requests.  Furthermore, in my cross-examination of the witness who observed the driving, it was revealed that the driving was not as bad as the allegations had suggested and that the reliability and credibility of this witness was questionable. Finally, I caught on to a technical defect in the breath technician’s evidence that would have resulted in a conviction on the Over 80 charge being an impossibility. Ultimately, the Crown agreed to my client pleading guilty to Careless Driving under the HTA and thus avoiding a criminal record and the serious consequences that accompany a drinking and driving conviction.

  • Not Guilty of Impaired Driving and Dangerous Driving Related to: Breath Test, Dangerous Driving, Drive Over 80 Criminal Cases, Impaired Driving

    My client had been charged with Impaired Driving, Over 80 and Dangerous Driving stemming from an incident in which he had driven into a house.  His breath tests revealed that his Blood Alcohol Concentration was well over the legal limit. My client had made several statements on the scene both to the residents of the home and to the police, even after he was advised of his rights to counsel and cautioned that he did not have to say anything.  My client admitted several times that he had too much to drink and should not have been driving.  To make matters worse, my client could not remember what had happened.  On the day of trial I convinced the Crown to pull the Impaired Driving and Over 80 charges in return for my client pleading guilty to the Dangerous Driving charge.  My client was fined and although his driver’s license was suspended automatically by the Ministry of Transportation, the judge declined to make a separate Order prohibiting him from driving anywhere in Canada.  Because my client was not found guilty of the drinking and driving related charges, he avoided the requirements of having to take Ontario’s Remedial Measures Back on Track Program  and of having an ignition interlock device installed in any vehicle he drove for the year after he got his license back.  These requirements would both involve significant monetary expenditures.  My client also likely avoided significant increases in his insurance premiums.