Guides / BC criminal process

Impaired driving stops in BC: what are your rights at the roadside?

Pull over, hand over your licence, registration, and insurance, and blow into the roadside screening device if the officer demands a sample. Those are the obligations; the rest is choice, and you do not have to answer a single question about where you were tonight or what you had to drink.

Drivers tend to get this backwards. People believe they can refuse the breathalyzer and believe they must explain themselves, and the law runs the other way on both counts. I have watched polite, cooperative people talk themselves into a criminal file at the window of their own car, and I have watched a refusal turn a defensible case into an easy conviction. So here is how a roadside stop works in British Columbia, obligation by obligation.

Start with the stop itself. Police in BC do not need a reason to pull you over. The Supreme Court of Canada held in R. v. Ladouceur, back in 1990, that officers may stop any vehicle to check the driver's licence, insurance, and sobriety. A checkstop on Douglas Street at midnight in December is lawful. So is a lone officer on the Malahat pulling you over on a hunch about nothing at all. You are required to stop, and as the driver you are required to identify yourself and produce your documents.

Do I have to blow into the roadside screening device?

Yes, where the demand is lawful, and since 2018 the demand power is wide. Under section 320.27(2) of the Criminal Code, an officer with an approved screening device at hand can demand a breath sample from any driver he has lawfully stopped. He does not need to smell alcohol. He does not need to see a swerve. He does not need any suspicion at all. Parliament wrote mandatory alcohol screening into the Code on purpose, and it is the law across the country.

I will concede how broad that sounds, because clients find it hard to believe. It is broad. Broad is not unlimited, though. The officer must have the device with him or close at hand, the demand must come promptly, and the stop underneath it all must be lawful. Whether those conditions were met on your file is a question for counsel reading the disclosure, not an argument to have on the shoulder of Highway 1. At the roadside, you provide the sample. In my office, we take the stop apart piece by piece.

Can I call a lawyer before I blow?

Not at the roadside, and clients like this answer least, so I give it plainly. In R. v. Orbanski, the Supreme Court of Canada accepted that the right to counsel is suspended during roadside screening, because the screening stage is designed to be quick. The Charter right exists the whole time; its exercise waits.

It stops waiting the moment things escalate. Fail the screening device and you will be arrested, and when the officer demands an evidentiary breath test on the full instrument at the detachment, your right to counsel attaches with teeth. Police must tell you about it, and they must give you a private, meaningful chance to speak with a lawyer before you provide those samples. Take the call. Duty counsel is free and available around the clock, and the advice takes minutes. What happens between the arrest and the second test can decide the case, and that call is where you learn how to handle it.

What happens if I blow a warn or a fail?

In BC, most drinking and driving files never see a courtroom, because the province runs its own roadside regime under the Motor Vehicle Act. Blow a warn, which the device registers at 0.05, and you face an immediate driving prohibition of three, seven, or thirty days depending on your history, with possible impoundment of the vehicle. Blow a fail at 0.08, or refuse, and you are into the Immediate Roadside Prohibition: ninety days off the road, thirty days of impoundment, monetary penalties, remedial programming, and towing and storage fees that stack toward several thousand dollars. The officer can still forward a criminal charge on top, and in the serious cases, a collision, an injury, a prior record, the Crown pursues one.

One deadline towers over the rest: seven days. That is how long you have to apply to RoadSafetyBC for review of an IRP. Seven days, weekend included, whether or not you have found a lawyer. Miss it and the prohibition stands however strong your grounds were. If a stop has gone sideways on you, that clock comes before the impound lot, before the insurance questions, before everything.

The criminal side of impaired driving, the charges, the penalties, and the defences that win these trials, has its own page on this site: the impaired driving guide. This article is about the stop, and the stop is where the whole file gets made.

So the roadside script is short. Be polite. Produce your documents. Blow when a lawful demand comes. Say that you will not be discussing your evening, then keep to it. And when you get home, write everything down while it is fresh: the time of the stop, what the officer said, when the demand came, whether the device was in his car or you waited while one was brought, when you heard about your right to a lawyer. Those details fade within days, and they are the raw material a defence is built from.

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