Proposed law on roadside breath tests may be unconstitutional
A proposed law that would allow police to demand a breath test from a driver without needing a reasonable suspicion the individual has been drinking may be unconstitutional, as it would require a person to provide an “invasive” bodily sample despite no sign of danger, Toronto criminal lawyer Joseph Neuberger tells The Globe and Mail.
As the article notes, the government is preparing for the legalization of marijuana with an overhaul of impaired-driving laws, which include giving police sweeping new authority to combat drunk driving.
When it comes to marijuana, police would have the right to take “oral fluid samples” from drivers at the roadside, but only from those they have reason to suspect are using the drug, or other drugs, says the article.
Neuberger, partner with Neuberger & Partners LLP, says reasonable suspicion has generally meant an odour of alcohol on the driver’s breath, an admission of alcohol consumption or other indicators, which is a low threshold police have met without difficulty, he explains.
“The premise of the legislation is that many drivers have escaped detection, who in fact were impaired, because of this requirement. Or it was difficult to prosecute cases because of this suspicion requirement. I don’t think that’s true. There is generally a high rate of conviction,” says Neuberger.
Neuberger tells The Globe and Mail he does not understand why police would need a reasonable suspicion to test for marijuana, but not to test for alcohol.
“One is not worse than the other. Significant impairment by a drug can be as dangerous as alcohol impairment. So I don’t see why we should have two different standards.”