CASE LAW - Mandatory Alcohol Screening

BC Courts Coat of Arms The Criminal Code now allows a peace officer to demand breath samples from a driver without having a reasonable suspicion that the driver has alcohol in their body. This case determines that mandatory alcohol screening (MAS) is not a violation of the driver's Charter rights.

Alcohol Screening At the Roadside

image of roadside alcohol screening

Norma McLeod and Nicole Quaschnick were both stopped by police, tested under the MAS provisions and issued immediate roadside prohibitions (IRP). Ms. McLeod did not provide a sufficient sample of breath and Ms. Quaschnick's sample registered a fail.

A fail reading indicates a blood alcohol content of more than 90 mg% or .09.

Ms. McLeod's Circumstances

Ms. McLeod suffers from chronic obstructive pulmonary disease (COPD) and has had significant surgery to her mouth due to cancer. Experts called explained to the court how these circumstances might make it impossible for her to comply with a breath demand.

The court was advised that if the officer conducting the MAS is satisfied that the driver is not intentionally refusing to supply a sufficient sample they are released.

She was able to have the IRP overturned on review.

Ms. Quaschnick's Circumstances

Ms. Quaschnick received a 90 IRP due to her blood alcohol level and did not initiate a judicial review of the process.

Charter Position

The requirement for reasonable suspicion should not have been removed from the Criminal Code
Canadians enjoy a reasonable expectation of privacy for their exhaled breath
The MAS provisions amount to unreviewable discretionary seizure power

The Court's Decision

Mr. Justice Punnett presided over the trial and examined the MAS scheme in law, how it applies to BC's Immediate Roadside Prohibition provisions and how the Canadian Charter of Rights and Freedoms might affect it.

He found that section 320.27(2) of the Criminal Code does not violate the Charter and the rights of the two drivers were not infringed.