Approved Instrument

Approved instrument is a term used by the Canadian Criminal Code to describe an instrument that a police officer can use to measure a motorist's blood alcohol content, for use as evidence in court to argue that the motorist has committed the drunk driving criminal offence of driving "over 80".

The Criminal Code gives the police the power to make a demand for a breath sample to be measured in an "approved instrument" (such as a breathalyzer), if the police officer has reasonable grounds to believe the motorist has committed either of the offences of impaired driving or driving with a blood alcohol content of greater than "eighty milligrams of alcohol in one hundred millilitres of blood," colloquially referred to as "over 80" or ".08" (i.e. "point-zero-eight"). The evidence of blood alcohol content measured by the approved instrument is admissible in court to prove that the motorist was driving with a blood alcohol content greater than .08.

It is an offence under the Criminal Code to refuse to provide a breath sample when the police have made the demand.

Criminal offence of driving "over 80"

Canada's criminal law creates two offences of drunk driving: driving while impaired by alcohol or a drug, and driving with a blood alcohol content greater than "eighty milligrams of alcohol in one hundred millilitres of blood," colloquially referred to as "over 80" or ".08" (i.e. "point-zero-eight").^[1]

To gather evidence for the .08 offence, the Criminal Code provides for roadside screening, using an approved screening device. If the motorist blows a "fail" on the approved screening device at roadside, the police officer then has grounds to believe that motorist has committed the offence of driving with a blood alcohol content greater than .08, and can make a demand for an additional breath sample, to be tested on an "approved instrument", such as a breathalyzer. The police officer can require the motorist to come to a police detachment to undergo the test.^[2]

As an alternative to the roadside screening tests, the police officer can also form the opinion that a motorist has committed the offences of impaired driving or the .08 offence by observing the motorist while driving, or by requiring the motorist to perform physical coordination tests at the roadside.^[3] These observations can be used as the basis for a demand for a breath sample for testing in the approved instrument.

Definition of approved instrument

The expression "approved instrument" is defined in the Criminal Code as:

approved instrument" means an instrument of a kind that is designed to receive and make an analysis of a sample of the breath of a person in order to measure the concentration of alcohol in the blood of that person and is approved as suitable for the purposes of section 258 by order of the Attorney General of Canada^[4]

The Approved Breath Analysis Instruments Order establishes certain breath instruments as approved instruments for use in Canada.^[5]

An "approved instrument" is used by a trained technician under controlled conditions, and checked for accuracy on each use, to produce evidence suitable for use in prosecution. The calibration of an approved instrument in Canada should be checked using a standard alcohol solution at a specific temperature using a simulator or a dry gas alcohol standard each time the operator of the approved instrument conducts a subject test.^[6]

Making the demand for a breath sample

An approved instrument demand can be made whenever a police officer believes on reasonable and probable grounds that a person has committed an impaired or over 80 offence within the preceding 3 hours.^[2] The approved instrument breath demand must be made by the same officer who formed the reasonable and probable grounds.^[7] The indicia of impairment leading to the formation of the reasonable and probable grounds must be apparent before or at the time the opinion is formed, not discovered ex post facto.^[8]

Legal effect of the test

Evidence of the results of subject tests using an approved instrument are admissible in court as evidence that the accused committed the offence of driving over .08. The Criminal Code provides that if several conditions are met concerning the way the test was taken, the results of the test are generally conclusive proof of the blood alcohol concentration at the time of driving. This presumption can only be rebutted by evidence that the device and the test were inaccurate in some way, and that the blood alcohol content was in fact likely lower than .08.^[9]

Refusal to blow

It is a criminal offence to refuse a demand for a breath sample for testing in an approved instrument that has been lawfully made. Section 254(5) of the Criminal Code of Canada provides as follows:

(5) Every one commits an offence who, without reasonable excuse, fails or refuses to comply with a demand made to him by a peace officer under this section.

The penalties for refusing to provide a breath sample for testing in an approved instrument are the same as if the accused had been convicted of the offence of driving over .08, or one of the related offences, such as driving over .08 and causing bodily harm (liability to imprisonment up to 10 years), or driving over .08 and causing death (liability to life imprisonment).^[10] This approach reduces the incentive on the motorist to refuse to provide a breath sample for testing purposes.

References

↑ Criminal Code, RSC 1985, c C-46, s 253(1).
↑ ^2.0 ^2.1 Criminal Code, RSC 1985, c C-46, s 254(3).
↑ Criminal Code, RSC 1985, c C-46, s 254(2)(a).
↑ Criminal Code, RSC 1985, c C-46, s 254(1), "Approved instrument".
↑ Approved Breath Analysis Instruments Order, SI/85-201, as amended by SI/92-105, s. 2; SI/92-167, s. 1; SI/93-61, s. 1; SI/93-175, s. 1; SOR/94-422, s. 1; SOR/94-572, s. 1; SOR/95-312, s. 1; SOR/2000-200, s. 1; SOR/2002-99, s. 1; SOR/2007-197, s. 1; SOR/2008-106, s. 1; SOR/2009-205, s. 1; SOR/2012-237, s. 1; SOR/2013-107, s. 1.
↑ Canadian Society of Forensic Science Alcohol Test Committee Recommended Operational Procedures (Effective: 2014 May 04), p 4.
↑ R. v. Pavel (1989), 36 O.A.C. 328, 53 C.C.C. (3d) 296, 74 C.R. (3d) 195, 19 M.V.R. (2d) 294, 1989 CarswellOnt 116, [1989] O.J. No. 2307 (Ont CA).
↑ R. v. Gavin, 1993 CanLII 1978; 118 Nfld & PEIR 84; [1993]{{dead link|date=October 2016 |bot=InternetArchiveBot |fix-attempted=yes }} QJ No 136 (QL); 50 MVR (2d) 302 (PE SCAD).^{[yes|permanent dead link|dead link}}]}
↑ Criminal Code, RSC 1985, c C-46, s 258(1)(c).
↑ Criminal Code, RSC 1985, c C-46, s 255(2.2), (3.2).

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[1] Criminal Code, RSC 1985, c C-46, s 253(1).

[CC254-2] 2.0 ^2.1 Criminal Code, RSC 1985, c C-46, s 254(3).

[3] Criminal Code, RSC 1985, c C-46, s 254(2)(a).

[4] Criminal Code, RSC 1985, c C-46, s 254(1), "Approved instrument".

[5] Approved Breath Analysis Instruments Order, SI/85-201, as amended by SI/92-105, s. 2; SI/92-167, s. 1; SI/93-61, s. 1; SI/93-175, s. 1; SOR/94-422, s. 1; SOR/94-572, s. 1; SOR/95-312, s. 1; SOR/2000-200, s. 1; SOR/2002-99, s. 1; SOR/2007-197, s. 1; SOR/2008-106, s. 1; SOR/2009-205, s. 1; SOR/2012-237, s. 1; SOR/2013-107, s. 1.

[6] Canadian Society of Forensic Science Alcohol Test Committee Recommended Operational Procedures (Effective: 2014 May 04), p 4.

[7] R. v. Pavel (1989), 36 O.A.C. 328, 53 C.C.C. (3d) 296, 74 C.R. (3d) 195, 19 M.V.R. (2d) 294, 1989 CarswellOnt 116, [1989] O.J. No. 2307 (Ont CA).

[8] R. v. Gavin, 1993 CanLII 1978; 118 Nfld & PEIR 84; [1993]{{dead link|date=October 2016 |bot=InternetArchiveBot |fix-attempted=yes }} QJ No 136 (QL); 50 MVR (2d) 302 (PE SCAD).^{[yes|permanent dead link|dead link}}]}

[9] Criminal Code, RSC 1985, c C-46, s 258(1)(c).

[10] Criminal Code, RSC 1985, c C-46, s 255(2.2), (3.2).

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