section 254(3.3)

INTRODUCTION AND BRIEF DESCRIPTION

Evaluating officers may demand a breath sample from a person suspected of having alcohol in their body.

SECTION WORDING

254(3.3) If the evaluating officer has reasonable grounds to suspect that the person has alcohol in their body and if a demand was not made under paragraph (2)(b) or subsection (3), the evaluating officer may, by demand made as soon as practicable, require the person to provide, as soon as practicable, a sample of breath that, in the evaluating officers opinion, will enable a proper analysis to be made by means of an approved instrument.

EXPLANATION

Section 254(3.3) of the Criminal Code of Canada outlines the circumstances under which a police officer may make a demand for breath samples from an individual suspected of driving under the influence of alcohol. Specifically, this section applies when the officer has reasonable grounds to suspect that the person has consumed alcohol, but they did not make a demand for a breath sample under paragraph (2)(b) or subsection (3) of the same section. Under subsection (2)(b), a police officer may make a demand for a breath sample if they have reasonable grounds to suspect that a person has committed an offense under section 253 of the Criminal Code (which pertains to impaired driving). Subsection (3), on the other hand, allows a police officer to make a demand for a breath sample if they have reasonable grounds to suspect that a person has recently consumed alcohol, and they were operating a motor vehicle or had care or control of a motor vehicle. If neither of these scenarios apply but the officer still has reasonable grounds to suspect that alcohol is present in the person's body, they may make a demand for a breath sample under section 254(3.3). The sample must be collected as soon as practicable and must be of a sufficient volume to enable a proper analysis to be made using an approved instrument. The purpose of this section is to allow police officers to obtain evidence of alcohol consumption in situations where they have reasonable grounds to suspect impairment but did not make a demand for a breath sample under subsections (2)(b) or (3). By providing officers with this additional tool, the section aims to enhance the ability of law enforcement officers to prevent impaired driving and promote road safety.

COMMENTARY

Section 254(3.3) of the Criminal Code of Canada pertains to the circumstances under which an evaluating officer may demand a sample of breath from a person for analysis through an approved instrument. The section stipulates that if an evaluating officer has reasonable grounds to suspect that an individual has alcohol in their body and a demand was not made under paragraph (2)(b) or subsection (3), the evaluating officer may require the individual to provide a sample of breath that will enable a proper analysis to be made by means of an approved instrument. The primary objective of this section is to provide the police with the legal authority to obtain a sample of breath from a person who they reasonably suspect has alcohol in their body but did not submit to a roadside breath test or any other tests. The section empowers law enforcement officers to demand a breath sample from the driver as soon as practicable to determine the level of alcohol consumption. This provision allows investigating officers to collect evidence to make an informed decision about charging an individual with an offence under impaired driving legislation. The significance of this section is that it balances the right of individuals against the need to prevent impaired driving and protect the public. The section specifies that the evaluating officer must have reasonable grounds to suspect that the person has alcohol in their body before making a demand for a breath sample. This requirement ensures that the evaluating officer has a basis for the demand, which precludes random or arbitrary breath testing. The section, therefore, upholds fundamental rights against unreasonable search and seizure, while still ensuring the safeguarding of public safety. Moreover, this section of the Criminal Code of Canada places significant emphasis on the obtaining of the breath sample "as soon as practicable." This phrase underscores the timeliness and urgency of the demand, which is crucial in determining the accuracy of the sample. The sooner the breath sample is taken, the more accurate it is likely to be. The emphasis on timeliness ensures that the sample is obtained when the alcohol level is at its highest in the body. Another crucial aspect of this section is the requirement that the sample is analyzed by means of an approved instrument. This requirement ensures that the results are reliable and trustworthy, backed by objective scientific data. The use of approved instruments ensures the accuracy of the breath alcohol level, which is significant in establishing guilt or innocence in cases of impaired driving. In conclusion, Section 254(3.3) of the Criminal Code of Canada provides important provisions for the collecting of breath samples from individuals suspected of driving under the influence. The section provides a balance between public safety and individual rights, ensuring that the breath sample is obtained within a reasonable time and is analyzed by means of an approved instrument. These provisions are critical in the fight against impaired driving, which remains a significant threat to public safety. As such, it is important that this section is enforced consistent with its intended purposes.

STRATEGY

Section 254(3.3) of the Criminal Code of Canada is an important provision for police officers and prosecutors, as it allows for a demand to be made to provide a breath sample in cases where a demand was not previously made. This provision can be a key tool in prosecuting impaired driving cases, but it also raises strategic considerations for police officers, defence lawyers, and prosecutors alike. One important strategic consideration for police officers is ensuring that they have reasonable grounds to suspect that the person has alcohol in their body before making a demand for a breath sample. This can involve careful observation of the person's behavior and physical symptoms, such as slurred speech or the smell of alcohol on their breath. It may also involve administering field sobriety tests or a roadside screening device to confirm the officer's suspicions. Once a demand for a breath sample has been made, another strategic consideration is ensuring that the sample is obtained as soon as practicable. This is important to ensure the accuracy of the sample, as the amount of alcohol in a person's breath can dissipate over time. It may also be necessary to ensure that the sample is obtained in a safe and controlled environment, to prevent the possibility of contamination or other issues that could affect the accuracy of the sample. For defence lawyers, one key strategy may be to challenge the officer's reasonable grounds for suspecting that the person has alcohol in their body. This could involve questioning the officer's observations or the procedures they used to confirm their suspicions, or arguing that the officer's suspicion was based on biased or subjective factors. Prosecutors, on the other hand, may need to be prepared to respond to challenges to the accuracy or reliability of the breath sample. This could involve calling expert witnesses to testify about the science behind breath testing, or presenting evidence to support the reliability and accuracy of the particular instrument used to analyze the sample. Overall, navigating the provisions of Section 254(3.3) requires careful attention to detail and strategic thinking on the part of all parties involved in an impaired driving case. By considering the strengths and weaknesses of each side's arguments and evidence, and by making careful use of the tools available under the Criminal Code, police officers, defence lawyers, and prosecutors can all work to ensure that justice is served.