The R.I.D.E. Impaired Driving Program: What is it, what are my rights?
Nothing in this article is meant to in any way constitute legal advice; it is purely informational.
The holiday season is high season for drinking and driving offences in Canada. The police know this. In an attempt to prevent and punish such behaviour, police greatly increase the number of impaired-driving spot-checks as part of the R.I.D.E. (Reduce Impaired Driving Everywhere) program.
The terrible consequences of drunk driving are obvious as it can result in injury or death to yourself and others. There are also extremely serious consequences to the driver outside the physical damage he or she may cause. Just this week, the Supreme Court of Canada upheld a six-and-a-half year prison sentence for an 18-year old (with no previous criminal record) who killed two passengers while driving drunk. Even if nobody is hurt and even if there is no accident at all, the consequences associated with an intoxicated driving conviction can be devastating.
The R.I.D.E. program is designed to detect and deter drunk driving. Police will set up on a stretch of a road or highway and stop your vehicle to determine whether or not you are committing the criminal offence of Impaired Driving, or the criminal offence of “Over 80”. “Over 80” means having care or control of a motor vehicle with a concentration of more than 80 milligrams of alcohol per one hundred millilitres of blood, which is the legal limit.
Impaired Driving and Over 80 are different offences, but both are serious and can have extremely serious consequences if you are found guilty.
What will happen during a R.I.D.E. stop for impaired driving?
Step 1: Reasonable Suspicion
Police officers are authorized to demand you stop your vehicle. An officer standing by your car will then look for signs of impairment. Often the officer will ask an introductory question (e.g., “Hi, how are you doing tonight?”), and then will often ask if you have had anything to drink.
The officer must determine if he or she has a “reasonable suspicion” that you (a) have alcohol in your system, and (b) have operated a motor vehicle in the last three hours. (If you are stopped at a R.I.D.E. roadside spot-check, even the most creative defence lawyer will have a tough time arguing the latter condition.) If a reasonable suspicion exists that both (a) and (b) are true, the officer is authorized to demand a “roadside sample” or physical tests of impairment. This, after the original stop and questioning is the next step in the process. It will be discussed in detail below.
While the content of your answer will help the officer determine whether or not you have alcohol in your system, they will be looking for other indicia as well. For example, they will attempt to determine if there is any odour of alcohol on your breath; they will look at your eyes to see if they are glazed or otherwise suggest impairment; they will also pay attention to your manner of speaking – are you slurring your words or having trouble comprehending their questions?
Of course, the content of your answer does matter as well: if you inform an officer that you have been drinking, this will almost certainly give the officer reasonable suspicion that you have alcohol in your system. You may then be subject to the roadside test. This article will focus not on the roadside physical tests, but the commonly-employed roadside breath test.
Step 2: Roadside Approved Screening Device
If you “fail” the initial test – that is, the officer has reasonable suspicion of alcohol in your system while you were driving, the officer can demand that you get out of your car to provide a breath sample into an approved screening device.
This “roadside sample” is not the breathalyzer test. This is a breath-sample device that the officer will have in their vehicle. The results are less reliable than a breathalyzer. The results of the roadside test cannot in and of themselves support a criminal conviction for “Over 80”. The roadside screening device is just that – a screening device to help the officers determine whether or not they have reasonable and probable grounds to arrest you and subject you to a breathalyzer test.
Step 3: Arrest, Breathalyzer and Possible Laying of Charges
Not unlike other offences, you are arrestable for Over 80 or Impaired Driving when the police officer forms reasonable and probable grounds to believe you have committed such an offence. The roadside screening device, if it registers a “fail”, will often help police reach this threshold.
It is not the only tool by which police may form reasonable and probably grounds to believe you are driving while impaired, however. Police may claim they have formed such ground on the bases of physical observations. These may include: bloodshot or watery eyes; slurred speech; odour of alcohol; and/or unsteady gait. R.I.D.E. officers will be looking for these.
Such observations, if made at this stage, before your arrest, cannot be used at a trial to prove you were impaired while driving. They may, to repeat, however, authorize the officer to arrest you and then take further steps to determine whether you are committing the offence of Impaired Driving or Over 80.
To review, there are two stages and two different tests for police: (1) if they have reasonable suspicion that you have driven in the last three hours and have alcohol in your system, they may demand you give a roadside screening sample; (2) if they have reasonable and probably grounds to believe you are impaired or have a concentration of Over 80 while driving, they can arrest you. The breathalyzer and other observations made after your arrest will constitute the evidence of an offence to be used against you at trial.
Does the R.I.D.E. program for impaired driving violate my Charter rights?
In a word, no it does not. R.I.D.E. checks are legal in and accordance with the Charter, so long as they are conducted properly.
Prima facie, stopping cars at random to check the sobriety of the drivers therein is not constitutional. Effecting the stop is a detention, however brief, and if there are no criteria for determining whom to stop – that is, it is truly random, that detention is arbitrary and in violation of Section 9 of the Charter. However, the provincial legislation authorizing such random spot-checks was scrutinized by the courts and the legislation was upheld. In short, the court determined that though the practice infringed upon the Charter rights of the drivers to be free from arbitrary detention, that this was a reasonable limit within the meaning of Section 1 of the Charter. Bottom line, R.I.D.E. stops are constitutional so you must comply with them.
On a related note, and in light of the legality of the police practice, as a general rule you may not refuse to comply with the officers’ demands. The police should tell you so and it is true: refusal to accede to a valid demand for the roadside sample, for example, can result in a charge on its own for Refusing to Provide a Sample. If the demand was valid, you certainly can be convicted of this offence.
What are my Rights during a R.I.D.E. stop? Do I have any?
Your Charter rights are inalienable and are with you always.
Unfortunately, that is something of a technical statement and of limited comfort in light of the following: As discussed above, although you have those rights, the law allows the state to infringe upon those rights in a limited way and in limited circumstances, when a legitimate purpose justifies such an infringement.
So, one way you may want to think of your rights vis-à-vis R.I.D.E. stops, is that they are “temporarily suspended”. Specifically, for a brief period of time and for an explicit purpose, the police do not need to (and will not!) respect your right to be free from arbitrary detention
[section 9], nor your right to speak to counsel [section 10(b)]. But take solace, citizen, the suspension of these rights is temporary.
To be precise: police may detain you and do so without informing you of your right to counsel during Stages 1 and 2, as we describe them above. That is, the rights are legally ignored while police determine whether or not to demand the roadside screening test, and indeed while conducting roadside screening tests. At the conclusion of such testing, however, if they form the reasonable and probable grounds to arrest you, they ought to do so immediately. As soon as you are arrested, your section 9 and 10(b) rights are no longer justifiably infringed. They “kick back in”. Now, if everything was done properly to that point, you detention is probably not arbitrary. Nonetheless, that right and the rest of your Charter rights are in full effect.
Although it is beyond the scope of this article, you may be interested to know that police may not use the program, or what is “justifiable behaviour” in light of the purposes of the program (i.e. to detect and deter drunk driving) for improper investigation. That is to say that police may not use this specialized authority to then go on a fishing expedition to see what other crimes you may have committed or may be committing. For example, while they are allowed, as discussed, to pull you over “arbitrarily” to determine whether or not you are intoxicated, they cannot use this “temporary suspension of your rights” to, without cause, search your car for drugs or weapons. In this sense, the suspension of your rights is not only limited temporally, but is also limited to the specific and proper purpose: to determine whether or not you are driving while impaired.
As noted at the very start, nothing in this article constitutes legal advice. It was written so that you may understand what the R.I.D.E. program is, and how this program interacts with your constitutional rights.
The only truly effective way to ensure you are not charged with an impaired driving offence is, of course: NOT TO DRINK AND DRIVE.
If, however, you have been charged with an offence arising from a R.I.D.E. stop, or otherwise, it is imperative that you call a lawyer. Call a lawyer when the police inform you of your right to do so upon your arrest, and call a lawyer the next day, or the next week, as you prepare to defend the charges against you. Only a skilled and informed lawyer can help you fully understand your rights and take action if and when these rights were not fully respected.
STAY SAFE and HAPPY HOLIDAYS from ROBICHAUD’S.
– Jordan Gold
Barrister and Solicitor