DUI DWI: International Referral
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DUI, DWI & Criminal Legislation in Ontario
Highway Traffic Act of Ontario , section: 48
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Administrative Driver's License Suspension, 3 Day Suspension Over 50 mg/100mL
(1) A police officer, readily identifiable as such, may require the driver of a motor vehicle to stop for the purpose of determining whether or not there is evidence to justify making a demand under section 254 of the Criminal Code (Canada). 2007, c. 13, s. 10.
Screening device breath test
(2) Where, upon demand of a police officer made under section 254 of the Criminal Code (Canada), the driver of a motor vehicle or the operator of a vessel provides a sample of breath which, on analysis by an approved screening device as defined in that section, registers “Warn” or “Alert” or otherwise indicates that the concentration of alcohol in the person’s blood is 50 milligrams or more of alcohol in 100 millilitres of blood, the police officer may request that the person surrender his or her driver’s licence. 2007, c. 13, s. 10; 2009, c. 5, s. 15 (2).
Approved instrument test
(3) Where, upon demand of a police officer made under section 254 of the Criminal Code (Canada), the driver of a motor vehicle or the operator of a vessel provides a sample of breath which, on analysis by an instrument approved as suitable for the purpose of section 254 of the Criminal Code (Canada), indicates that the concentration of alcohol in his or her blood is 50 milligrams or more of alcohol in 100 millilitres of blood, a police officer may request that the person surrender his or her driver’s licence. 2007, c. 13, s. 10; 2009, c. 5, s. 15 (4).
(4) Upon a request being made under subsection (2) or (3), the person to whom the request is made shall forthwith surrender his or her driver’s licence to the police officer and, whether or not the person is unable or fails to surrender the licence to the police officer, his or her driver’s licence is suspended from the time the request is made for the period of time determined under subsection (14). 2007, c. 13, s. 10. Suspension concurrent with administrative suspensions
(5) The licence suspension under this section runs concurrently with a suspension, if any, under section 48.1, 48.2.1 or 48.3. 2009, c. 5, s. 15 (6).
Opportunity for second analysis
(6) Where an analysis of the breath of a person is made under subsection (2) and registers “Warn” or “Alert” or otherwise indicates that the concentration of alcohol in the person’s blood is 50 milligrams or more of alcohol in 100 millilitres of blood, the person may require that a second analysis be performed if the person requests the second analysis immediately after the police officer requests the surrender of his or her licence under subsection (2). 2009, c. 5, s. 15 (8).
Screening device, instrument used for second analysis
(6.1) The second analysis must be performed with a different approved screening device than was used in the analysis under subsection (2) or, if the police officer thinks it is preferable, with an instrument approved as suitable for the purpose of section 254 of the Criminal Code (Canada). 2009, c. 5, s. 15 (8). Second analysis governs
(6.2) Where a person provides a sample of breath for the second analysis requested under subsection (6) immediately upon being requested to do so by the police officer, the result of the second analysis governs and any suspension resulting from the analysis under subsection (2) continues or terminates accordingly. 2009, c. 5, s. 15 (8).
Calibration of screening device
(7) For the purposes of subsection (2), the approved screening device shall not be calibrated to register “Warn” or “Alert” or to otherwise indicate that the concentration of alcohol in the person’s blood is 50 milligrams or more of alcohol in 100 millilitres of blood if the concentration of alcohol in the blood of the person whose breath is being analyzed is less than 50 milligrams of alcohol in 100 millilitres of blood. 2007, c. 13, s. 10.
(8) It shall be presumed, in the absence of proof to the contrary, that any approved screening device used for the purposes of subsection (2) has been calibrated as required under subsection (7). 2007, c. 13, s. 10.
No appeal or hearing
(9) There is no appeal from, or right to be heard before, the suspension of a driver’s licence under this section. 2007, c. 13, s. 10; 2009, c. 5, s. 15 (9).
Intent of suspension
(10) The suspension of a licence under this section is intended to safeguard the licensee and the public and does not constitute an alternative to any proceeding or penalty arising from the same circumstances or around the same time. 2007, c. 13, s. 10.
Duties of officer
(11) Every officer who asks for the surrender of a licence under this section shall,
(a) notify the Registrar of that fact, or cause the Registrar to be so notified, in the form and manner and within the time prescribed by the regulations;
(b) keep a record of the licence received with the name and address of the person and the date and time of the suspension; and
(c) as soon as practicable after receiving the licence, provide the licensee with a notice of suspension showing the time from which the suspension takes effect and the period of time for which the licence is suspended. 2007, c. 13, s. 10.
Removal of vehicle
(12) If the motor vehicle of a person whose licence is suspended under this section is at a location from which, in the opinion of a police officer, it should be removed and there is no person available who may lawfully remove the vehicle, the officer may remove and store the vehicle or cause it to be removed and stored, in which case the officer shall notify the person of the location of the storage. 2007, c. 13, s. 10.
Cost of removal (13) Where a police officer obtains assistance for the removal and storage of a motor vehicle under this section, the costs incurred in moving and storing the vehicle are a lien on the vehicle that may be enforced under the Repair and Storage Liens Act by the person who moved or stored the vehicle at the request of the officer. 2007, c. 13, s. 10. Period of suspension
(14) A driver’s licence suspended under subsection (4) shall be suspended for,
(a) three days, in the case of a first suspension under this section;
(b) seven days, in the case of a second suspension under this section;
(c) 30 days, in the case of a third or subsequent suspension under this section. 2007, c. 13, s. 10.
(15) The following previous suspensions shall not be taken into account in determining whether the current suspension is a first, second or subsequent suspension for the purpose of subsection (14):
1. A previous suspension that took effect more than five years before the current suspension takes effect.
2. A previous suspension that took effect before section 10 of the Safer Roads for a Safer Ontario Act, 2007 comes into force. 2007, c. 13, s. 10.
Police officer’s other powers unchanged
(16) Subsection (1) shall not be construed so as to prevent a police officer from requiring a driver stopped under that subsection to surrender any licence, permit, card or other document that the officer is otherwise authorized to demand under this Act or the Compulsory Automobile Insurance Act or from requiring a driver to submit a vehicle to examinations and tests under subsection 82 (2) of this Act. 2007, c. 13, s. 10.
(17) The Lieutenant Governor in Council may make regulations,
(a) respecting the form, manner and time within which the Registrar must be notified under subsection (11);
(b) prescribing other material or information to be forwarded to the Registrar under subsection (11). 2007, c. 13, s. 10.
(18) In this section,
“driver” includes a person who has care or control of a motor vehicle; (“conducteur”)
“driver’s licence” includes a motorized snow vehicle operator’s licence and a driver’s licence issued by any other jurisdiction; (“permis de conduire”)
“motor vehicle” includes a motorized snow vehicle; (“véhicule automobile”)
“vessel” means a vessel within the meaning of section 214 of the Criminal Code (Canada). (“bateau”)
2007, c. 13, s. 10; 2009, c. 5, s. 15 (11).
Meaning of suspension for out-of-province licences
(19) With respect to a driver’s licence issued by another jurisdiction, instead of suspending the person’s driver’s licence, the Registrar shall suspend the person’s privilege to drive a motor vehicle in Ontario for the applicable period determined under subsection (14). 2009, c. 5, s. 15 (13).
Comments : An individual stopped by the police whose blood alcohol concentration exceeds 50 mg/100mL will lose his or her licence for 3 days. This section has also been used by the Ontario court of appeal to authorize physical roadside tests as a "reasonable limit prescribed by law" justifying a delay in s. 10(b) Charter Right to Counsel when a police officer employs physical tests at roadside to assist in a determination of reasonable of probable grounds for arrest and demand under the Criminal Code.
It is very easy to blow to blow over 50 on a roadside screening device with only a small amount of alcohol in your system. Women who have had just one drink and who are in the 120 lb weight range are particularly vulnerable. These screening devices are calibrated to between 40 mg/100 mls and 60 mg/100 mls and may become unreliable as the fuel cell ages. Roadside ASD's do not generally have mouth alcohol detection systems and so persons who have recently had their last drink, recently eaten bread, recently used mouthwash, recently consumed an alcohol candy, or recently used an inhaler may be vulnerable to a false positive. In Ontario it is unwise to deny or lie to a police officer about consumption of any of these products, if asked.
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