OPP’s mandatory breathalyzers are ‘constitutionally sound’ says prominent DUI lawyer

News that Ontario Provincial Police (OPP) are now requesting breath samples from all drivers pulled over in the Greater Toronto Area, even if they show no signs of impairment, took many by surprise and sparked questions about the fine line between public safety and personal rights.

But as prominent DUI attorney Calvin Barry told CityNews in an interview Thursday, police have long held the right to demand breathalyzers without suspicion of impairment, but are only now wielding those powers on Ontario roadways.

“There was a legislative change about seven years ago,” Barry said. “The reason why the Liberals did all of this is because of all the carnage on the road, and stuff like the Marco Muzzo case didn’t help,” he added, referring to the infamous convicted drunk driver who killed three children and their grandfather in a September 2015 collision in Vaughan, Ont.

“Reasonable suspicion was taken out of the code, but police, for discretionary reasons, decided to still ask, still pull you over and say, ‘Hey sir, have you been drinking?’ or ‘Hey ma’am, have you been drinking, I smell some alcohol?’ They’d stick their head inside the window. But in reality, the reasonable suspicion was taken away by that amendment, it’s just that now they are starting to invoke it.”

“It’s just the enforceability,” he added. “They are upping their game because many people, for example, if you drink vodka you can’t smell it. Many people chew gum, many people have booze from the night before, they went on a big bender and didn’t sleep enough to have it eliminated, and therefore by asking everybody — people who would get past that screening will not now because they are gonna just check everybody.”

In a release Wednesday, the OPP confirmed they’re now conducting Mandatory Alcohol Screening (MAS) “as part of every traffic stop.”

“As impaired driving occurrences continue to increase in Ontario Provincial Police jurisdictions, the OPP is taking its strongest measures yet to detect, investigate and remove impaired drivers from our roads,” the release stated.

The OPP noted that the move comes as impaired driving collisions and charges are up close to 30 per cent over the previous five-year average.

“Motorists are again reminded to be prepared to provide a breath sample during a traffic stop,” the OPP release continued.

Barry, who successfully defended former Toronto Maple Leaf Rick Vaive on an impaired driving charge more than a decade ago, thinks some may try and challenge their charges in court if they’re nabbed during a mandatory screening, but he doesn’t think they’ll have much luck.

“I think that we will lose (a legal challenge) on the basis that it’s constitutionally sound and these cases at the Supreme Court of Canada and Ontario Court of Appeal, always seem to side in favour of the victim and the public because everybody has had it (with drunk driving),” he said.

He also advises people against refusing to provide a breath sample during a traffic stop, saying it’s basically an admission of guilt in the eyes of the law.

“Refusing is not the way to go,” he said, noting that DUI cases are often tossed on technicalities and issues with the breathalyzer machines or their technicians.

“If you just outright refuse (the breath sample), the case law says that’s inference that you are drunk because why are you refusing? You must’ve been drinking and you are fearful you are going to blow over and the courts and the Crowns and the police don’t like that a human being is holding that evidence hostage.”

“It really limits the kinds of defences you have. It’s much better to blow and take your chances (at a trial).”

Barry stressed that the best defence to avoid a charge altogether is by refraining from drinking and driving.

“When people ask me at a cocktail party, they come up and say, ‘Calvin, I saw you on TV talking about drunk driving, what’s the best defence out there? And I look at them and I go, ‘Two words,’ and they come up closer and I go ‘take Uber.'”

Barry said even if you’re ultimately found not guilty, the charge alone can come with heavy consequences.

“If you do get a good lawyer and you do get off, you still have a 90 day (driving) suspension, you still have to reinstate your licence (that’s) another $500, they impound your vehicle for seven days, they tow it away…so those are penalties you have and then when you get off and it’s reduced to a careless driving and you get your fingerprints and photos destroyed … you’re still in a very unenviable situation of who’s going to give you your life back when you couldn’t drive for 90 days. It’s devastating for some people.”

“Some people lose their jobs, lose their pensions, lose their spouses because you can’t drive for 90 days.”

Mandatory breathalyzers are “another push towards making it difficult and deterring people from drinking and driving,” he concluded. “Will it work? I guess we’ll find out.”