Proof of Impairment by Drugs or Alcohol

This page was last substantively updated or reviewed January 2019. (Rev. # 95785)

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General Principles

Samples of breath or blood — alcohol

320.28 (1) If a peace officer has reasonable grounds to believe that a person has operated a conveyance while the person’s ability to operate it was impaired to any degree by alcohol or has committed an offence under paragraph 320.14(1)(b), the peace officer may, by demand made as soon as practicable,

(a) require the person to provide, as soon as practicable,

(i) the samples of breath that, in a qualified technician’s opinion, are necessary to enable a proper analysis to be made by means of an approved instrument, or

(ii) if the peace officer has reasonable grounds to believe that, because of their physical condition, the person may be incapable of providing a sample of breath or it would be impracticable to take one, the samples of blood that, in the opinion of the qualified medical practitioner or qualified technician taking the samples, are necessary to enable a proper analysis to be made to determine the person’s blood alcohol concentration; and

(b) require the person to accompany the peace officer for the purpose of taking samples of that person’s breath or blood.

[omitted (2)]

Samples of breath — alcohol

(3) An evaluating officer who has reasonable grounds to suspect that a person has alcohol in their body may, if a demand was not made under subsection (1) [samples of breath or blood – alcohol], by demand made as soon as practicable, require the person to provide, as soon as practicable, the samples of breath that, in a qualified technician’s opinion, are necessary to enable a proper analysis to be made by means of an approved instrument.

Samples of bodily substances

(4) If, on completion of the evaluation, the evaluating officer has reasonable grounds to believe that one or more of the types of drugs set out in subsection (5) [types of drugs] — or that a combination of alcohol and one or more of those types of drugs — is impairing the person’s ability to operate a conveyance, the evaluating officer shall identify the type or types of drugs in question and may, by demand made as soon as practicable, require the person to provide, as soon as practicable,

(a) a sample of oral fluid or urine that, in the evaluating officer’s opinion, is necessary to enable a proper analysis to be made to ascertain the presence in the person’s body of one or more of the types of drugs set out in subsection (5) [types of drugs]; or

(b) the samples of blood that, in the opinion of the qualified medical practitioner or qualified technician taking the samples, are necessary to enable a proper analysis to be made to ascertain the presence in the person’s body of one or more of the types of drugs set out in subsection (5) [types of drugs] or to determine the person’s blood drug concentration for one or more of those types of drugs.

Types of drugs

(5) For the purpose of subsection (4) [samples of bodily substances], the types of drugs are the following:

(a) a depressant;

(b) an inhalant;

(c) a dissociative anaesthetic;

(d) cannabis;

(e) a stimulant;

(f) a hallucinogen; or

(g) a narcotic analgesic.

Condition

(6) A sample of blood may be taken from a person under this section only by a qualified medical practitioner or a qualified technician, and only if they are satisfied that taking the sample would not endanger the person’s health.

Approved containers

(7) A sample of blood shall be received into an approved container that shall be subsequently sealed.

Retained sample

(8) A person who takes samples of blood under this section shall cause one of the samples to be retained for the purpose of analysis by or on behalf of the person from whom the blood samples were taken.

Validity of analysis not affected

(9) A failure to comply with subsection (7) [approved containers] or (8) [retained sample] does not by itself affect the validity of the taking of the sample or of an analysis made of the sample.

Release of retained sample

(10) A judge of a superior court of criminal jurisdiction or a court of criminal jurisdiction shall, on the summary application of the person from whom samples of blood were taken under this section, made within six months after the day on which the samples were taken, order the release of any sample that was retained to the person for the purpose of examination or analysis, subject to any terms that the judge considers appropriate to ensure that the sample is safeguarded and preserved for use in any proceedings in respect of which it was taken.

2018, c. 21, s. 15.

– CCC (CanLII), (DOJ)

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History

The initial version of the offence of impaired driving required proof of "intoxication", which meant the "condition of being so stupefied or made drunk."

Authorization for a Blood Drug Sample Demand

Section 320.28(2)(b) authorizes a peace officer to demand a blood sample where they have a reasonable belief that the suspects ability to operate a conveyance was impaired by drugs and/or alcohol or an conveyance offence that violates the regulations.

320.28 [omitted (1)]

Evaluation and samples of blood — drugs

(2) If a peace officer has reasonable grounds to believe that a person has operated a conveyance while the person’s ability to operate it was impaired to any degree by a drug or by a combination of alcohol and a drug, or has committed an offence under paragraph 320.14(1)(c) or (d) [impaired operation – BAC or BAC + drugs exceeding regulations] or subsection 320.14(4) [operation with low blood drug concentration], the peace officer may, by demand, made as soon as practicable, require the person to comply with the requirements of either or both of paragraphs (a) and (b):

[omitted (a)]
or

(b) to provide, as soon as practicable, the samples of blood that, in the opinion of the qualified medical practitioner or qualified technician taking the samples, are necessary to enable a proper analysis to be made to determine the person’s blood drug concentration, or the person’s blood drug concentration and blood alcohol concentration, as the case may be, and to accompany the peace officer for that purpose.

[omitted (3), (4), (5), (6), (7), (8), (9) and (10)]
2018, c. 21, s. 15.

– CCC (CanLII), (DOJ)

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A blood sample that is taken under s. 320.28 can be analyzed pursuant to s. 320.28(4)(b).

Authorization for Drug Evaluation Demand

320.28 [omitted (1)]

Evaluation and samples of blood — drugs

(2) If a peace officer has reasonable grounds to believe that a person has operated a conveyance while the person’s ability to operate it was impaired to any degree by a drug or by a combination of alcohol and a drug, or has committed an offence under paragraph 320.14(1)(c) or (d) [impaired operation – BAC or BAC + drugs exceeding regulations] or subsection 320.14(4) [operation with low blood drug concentration], the peace officer may, by demand, made as soon as practicable, require the person to comply with the requirements of either or both of paragraphs (a) and (b):

(a) to submit, as soon as practicable, to an evaluation conducted by an evaluating officer to determine whether the person’s ability to operate a conveyance is impaired by a drug or by a combination of alcohol and a drug, and to accompany the peace officer for that purpose; or

[omitted (b)]

[omitted (3), (4), (5), (6), (7), (8), (9) and (10)]
2018, c. 21, s. 15.

– CCC (CanLII), (DOJ)

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Evaluation Face Sheet

The Drug Recognition Expert (DRE) follows a 12 step assessment process that is generally uniform across all of North America.

1. Breath Alcohol Test
2. Interview of the Arresting Officer
3. Preliminary Examination and First Pulse
4. Eye Examination
5. Divided Attention Psychophysical Tests
6. Vital Signs and Second Pulse
7. Dark Room Examinations
8. Examination for Muscle Tone
9. Check for Injection Sites and Third Pulse
10. Subject’s Statements and Other Observations
11. Analysis and Opinions of the Evaluator
12. Toxicological Examination

Adducing DRE evidence

There is no requirement that a DRE witness be subject to a Mohan voir dire.

See Also

• History of Conveyance Offences
• "Recommended Standards and Procedures of the Canadian Society of Forensic Science Alcohol Test Committee" Can. Soc. Forens. Sci. J. Vol. 28. No 1 (1995) pp. 1-25