Mandatory Breath Testing Is a Test of Civil Liberties

Mandatory Breath Testing Is a Test of Civil Liberties

Some would say that we already have mandatory breath testing in Texas, since your license can be suspended if you refuse to take a breath test once arrested for DWI. In reality, we don’t, but it’s not for lack of trying. There have been attempts to criminalize the refusal of a specimen test. Doing so creates a slippery slope. In Canada, the same situation is occurring and the following article presents some strong points.

Mandatory breath testing is an extraordinary police power

Drunk driving is a real issue that we should all be concerned about. But we should be equally concerned about handing over drastic new powers to police.


Wed., Oct. 4, 2017

One of the cornerstones of the government’s efforts to legalize marijuana is a bill intended to provide Canada with some of the strictest impaired-driving laws in the world. Remarkably, the most significant provision in Bill C-46, the government’s new impaired driving legislation, has nothing to do with marijuana legalization at all.

Bill C-46 would remove the current requirement — a critical limit to police powers — that police have a reasonable suspicion a driver has been drinking alcohol before demanding a breath sample. Under the new provision, any lawful police stop of a vehicle, no matter how trivial, would be sufficient cause to demand that a driver blow into a breathalyzer. License, registration, and blow.

Even more remarkable, however, is the government’s decision to introduce such an intrusive police power at a time when police services are struggling to address concerns that the exercise of police power in Canada is anything but random.

Study after study has given weight to these concerns. Last fall, a York University study analyzed more than 80,000 traffic stops in Ottawa and found that young Middle Eastern, Black, and Indigenous men were disproportionately subject to traffic stops that did not lead to warnings or charges — that is, they were stops that had no obvious justification and indicated a pattern of profiling.

A new police power that allows for random roving police stops accompanied by a demand for a bodily sample will do little to alleviate concerns that individuals of a certain race, age, sex, or perceived religion are disproportionately subject to police stops or even harassment. Such individuals will now also be disproportionately compelled to provide police with a breath sample, or what the Supreme Court of Canada has described as “the use of a person’s body without his consent to obtain information about him,” by which the state “invades an area of personal privacy essential to the maintenance of his human dignity.”

Mandatory breath testing would mark a fundamental and troubling change in our legal system. The law is clear that a breath sample, unlike a demand for license and registration, is a search and seizure under the Charter and therefore must be reasonable and justified.

Currently, we expect that police may have a right to search us or seize a bodily sample only when they have reason to suspect that we have done something wrong. Mandatory breath testing turns this expectation on its head — we must now prove our innocence. This transforms the police-citizen interaction in symbol and effect: the presumption of innocence is replaced with a presumption of guilt.

In addition, the proposed law would not limit the intrusive police power to stationary checkpoints, where police discretion is curtailed and therefore the risk of racial profiling or other improper exercise of police powers is reduced. Drivers will also not only be subject to routine random roadside stops. Some of us, many of whom will show zero indications of impairment, may be required to exit their vehicle and stand on the roadway or sit in a police cruiser while they blow into the breathalyzer.

Perhaps the most alarming add on to this already problematic new police power is its drastic expansion of the criminal offence of refusal. Bill C-46 would make it a criminal offence, complete with a mandatory minimum punishment, to fail or refuse to comply with a mandatory breath demand — regardless of whether the person refusing has done anything to arouse police suspicion.

This criminal offence is anything but trivial. It is doubtless that many otherwise innocent individuals, having no prior criminal record to speak of, will be charged and found guilty simply for refusing to comply with a mandatory breath demand. These refusals will often take the form of mistaken but well intentioned attempts to assert individual rights. The consequence? A criminal record for the mistake of resisting an arguably unconstitutional police power.

Drunk driving is a real issue that we should all be concerned about. But we should be equally concerned about handing over drastic new, and arguably unnecessary, powers to our police.

Rob De Luca is a lawyer and director of the Public Safety Program at the Canadian Civil Liberties Association.