Roadside Sobriety Tests: Standardized Field Sobriety Test, Breathalyzer, and Oral Fluid Test

Last Updated: October 20, 2023

Roadside Sobriety Tests

If you are pulled over for driving under the influence (DUI) or impaired driving, you will likely become familiar with roadside sobriety tests.  A driver does not need a blood alcohol concentration (BAC) or drug reading over the legal limit for the police to charge them with impaired driving.  Impaired driving includes operating a vehicle or having “care and control” of a vehicle while your ability to do so has been compromised by alcohol, drugs or a combination of the two.  So long as their ability to drive was affected by the consumption of alcohol, drugs, or a combination of the two, an individual may be driving while impaired.

Impaired driving is not limited to driving the vehicle when the police stop you.  Suppose the police have a reason to suspect that you were operating a vehicle or in care and control of a vehicle within the preceding 3 hours.  In that case, they may demand any of the following roadside sobriety tests.

Three roadside tests for impairment

Under section 320.27(1) of the Criminal Code, the police may request any of the following roadside sobriety tests if they have reason to suspect that the driver has alcohol or a drug in their body while having operated a vehicle within the three preceding hours.

  • Standard Field Sobriety Test (SFST) for alcohol or drug impairment;
  • Breath test for impairment due to alcohol; and
  • Oral fluid (saliva) test for impairment due to drugs.

Standard Field Sobriety Test (SFST) for alcohol or drug impairment,

Overview

Under section 320.14 of the Criminal Code, the SFST is meant to assess possible signs of impairment by using observation-based tests in the field.  A SFST can be administered alone or in conjunction with other roadside sobriety tests.

How the test is administrated

During this assessment, the police may ask you to do any of the following actions:

  • Horizontal Gaze Nystagmus (HGN) Test: During this test, the police officer will instruct you to follow a stimulus (usually a light or pen) with open eyes. The officer will observe if your pupils involuntarily jerk (“nystagmus”) and at what angle this occurs.  When this happens before or at a 45-degree angle, it may indicate that the individuals are intoxicated.
  • Walk and Turn Test: This test will involve walking heel-to-toe in a straight line. While doing so, you must keep your arms at your side and count the steps out loud.  You will then pivot and do the same, walking back toward the officers.  During the test, the police will look for several signs that you may be impaired, including balance issues, beginning the walk without instruction, or failing to complete the walk according to the instructions.
  • One Leg Stand Test: During this test, individuals will stand on one leg with their hands on their hips and their eyes open. Individuals who cannot stand unassisted for more than 5 seconds are at a greater risk of obtaining an injury from falling.

It is important to remember that any failure or refusal to comply with the SFST demand can also result in further criminal charges.

Breath test for impairment by alcohol

Overview

A breath test, or use of an approved screening device (ASD), is likely the most commonly known method of testing for impairment in the field.  Once a police officer demands you to provide a breath sample, they will provide instructions on using the device.  To give a breath sample, you must place your mouth around the tube of the ASD and blow as hard as you can until you hear a beep, at which time you have finished the test.

The ASD will then provide one of three readings: Pass, Warn, or Fail.  Individuals who receive a “pass” reading have a BAC below the legal limit of 80mg.

If you receive a “warn” reading, your BAC will typically be between 80-100mg.  Drivers who receive this reading will be subject to roadside penalties, such as an immediate licence suspension.

Drivers who receive a “fail” typically have a BAC of 100mg or above, meaning they are driving well above the legal limit.  Drivers may be required to provide a further breath sample at the police station to confirm their level of intoxication.

Mandatory alcohol screening tests

As of December 18, 2018, the law provides police with expanded powers in demanding breath samples to increase their detection of impaired drivers.  With mandatory alcohol screening (MAS), police no longer require reasonable suspicion that the driver is impaired to make this demand.  For the police to use MAS, the following conditions must be met:

  • The individual was operating a vehicle
  • The vehicle was lawfully stopped
  • The police must have an approved screening device (ASD) on hand

However, police officers may also demand a breath test under subsection 320.27(1) of the Criminal Code.  Demands made under this provision require reasonable suspicion that the driver consumed alcohol or drugs and operated a vehicle within the preceding three hours.

80 mg or over within two hours after driving:

Prior to the new law in 2018, drivers could utilize the “bolus” or “intervening drink” defence to explain why their blood alcohol concentration (BAC) was at or above 80 at the time of testing.  If drivers had consumed alcohol just before driving or after driving (but before they reached their destination), they could claim that the alcohol was still being absorbed in their system, meaning the driver was not intoxicated at the time they were driving.

The new law states that it is an offence to have a BAC of at or over 80 mg within two hours after driving to eliminate this defence.

Oral fluid (saliva) sample for impairment by drugs

Overview

The police may use an oral fluid drug screener to test the presence of drugs, such as THC, in your system.  While there is no mandatory drug screening, the police can demand an oral fluid sample if they suspect that the driver has the presence of alcohol or drugs in their body within the preceding three hours of operating the vehicle.  The police may gain reasonable suspicion based on observable facts, such as:

  • Agitation
  • Muscle tremors
  • Red eyes
  • Abnormal speech patterns

If the driver fails this reading, meaning they have the presence of drugs in their system, the police may have the grounds to demand a blood sample for confirmation.

Blood drug concentration over the legal limit within two hours of driving

Much like with alcohol consumption and breath tests, it is an offence to have the presence of drugs over the legal limit in your system within two hours after ceasing to drive the vehicle. 

This timeline should not be confused with the three-hour timeline that police have to obtain the oral fluid sample.

Failing or refusing a roadside test

Failing a test

If you fail the test, you will receive an immediate roadside prohibition which includes the following penalties:

  • Fines: The fine will vary across the country. Here are a few examples of what fine you might receive:
    • Ontario: $250
    • Alberta: $300
    • British Columbia: $200
  • Mandatory education or treatment programs: While the programs will vary across the country, drivers must complete a course or program which teaches them how to drive responsibly.
  • Licence suspension: 3 days

Refusing a test

Under subsection 320.15 of the Criminal Code, failing or refusing to comply with a demand for one of the above roadside sobriety tests is a criminal offence.  Failing or refusing to comply carries many of the same penalties as other DUI offences, such as:

  • Fines: Mandatory minimum of $2000
  • Mandatory education or treatment programs: While the programs will vary across the country, drivers must complete a course or program which teaches them how to drive responsibly.
  • Licence suspension: 1 year
  • Ignition interlock device: Once the Ministry of Transportation reinstates your licence, you will be required to install an ignition interlock device in your vehicle to drive.  This device has a built-in alcohol breath screening device which will preclude your engine from starting if it detects alcohol in your system.

FAQs

How reliable are the sobriety tests?

While there is some measure of subjectivity with the SFST, roadside sobriety tests are considered quite reliable.  The results of these tests will likely be the key piece of evidence in the case against you.  However, there is typically room to challenge the results of the roadside sobriety tests or how the ASD was calibrated.  To learn more about challenging the reliability of the results of roadside sobriety tests, Book A Free Consultation today.

What happens if you refuse a test?

As mentioned above, failing or refusing to comply with a demand for one of the above roadside sobriety tests is a criminal offence.  Failing or refusing to comply carries many of the same penalties as other DUI offences, such as:

  • Fines: Mandatory minimum of $2000
  • Mandatory education or treatment programs: While the programs will vary across the country, drivers must complete a course or program which teaches them how to drive responsibly.
  • Licence suspension: 1 year
  • Ignition interlock device: Once the Ministry of Transportation reinstates your licence, you will be required to install an ignition interlock device in your vehicle to drive.  This device has a built-in alcohol breath screening device which will preclude your engine from starting if it detects alcohol in your system.

 

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