having 1 or two drinks and getting pulled over
 

I was thinking about this over the weekend, may be a stupid question... say a person has a couple of drinks at dinner and drives home. Gets pulled over/goes through road block. When asked if the driver had anything to drink, the driver says no. The police officer then asks for a breath sample. The sample comes back at 0.01 or 0.02 for example, within the legal limit.

Can the driver be charged/ticketed for saying that he did not have anything to drink, but when tested with a breathalyser, it's determined otherwise?

Reason why I'm asking, I think one's more likely to be asked to give a breath sample if one says they had one or two drinks, rather than saying that they did not have any drinks. So saying that one did not drink at all may get one through the traffic stop faster...

Thanks for your POV on ICBC coverage...now some from my area of expertise. Police get lied to all the time, every day and in as almost many ways that there are to say "not guilty". I stop you and ask about consumption. You deny it but I can smell it so now I'm asking myself why you are telling me a lie. Guess I'll investigate further...and I do. Almost 100% of the impaired will ether tell you they only had 2 beers...or deny it completely. Never charged anyone with obstruction but your denial becomes part of my grounds to further investigate and part of the Crown report if it goes to trial. mens rea means a guilty mind...and someone telling lies about their consumption fits that description.
If you realy only have consumed 1 or 2 drinks and are not impaired, why volunteer for roadside time wasting? Yours and the Cop's.

I highlighted the most important part for OP.

I don't quite understand how you would exercise your discretion to perform a roadside test.
All roads seem to lead to a breathalyzer.

Could a truly impaired driver that wanted to lie and claim they only had one pint be let go without a roadside test because they were being truthful and your only gauge of impairment would be the vapour on their breath and their demeanour?
Would the only downside to lying and saying you haven't had any drinks when you only had one pint be that you waste your own time and the time of the police administering the roadside test? Seems like a reasonable option (especially with the "second test" option just in case the machine is faulty).

How would you treat somebody who said absolutely nothing?
(probably sober enough to flex their rights, sober enough to drive... drunk people love to talk)

exactly my point... someone who really did have one or two drinks and admits to it will most likely be subjected to a breathalyser test, according to your personal statistic, since you say that most impaired drivers you've pulled over say they only had a few drinks. And if the driver says they didn't have anything to drink and you can't quite smell it, they get let through. So really, the person who "lies" and says he didn't have anything to drink would be wasting less of theirs and the officers time since they have a better chance of getting let through

I'm not a lawyer or a police officer but hopefully one of the board officers can help me understand:

I believe that in order to compel me take a roadside breathalyser, the officer needs to have reasonable suspicion - either behaviour that indicates inebriation, a smell of alcohol, visible empty containers, etc. If this is true, I would certainly suspect that a driver telling you they had consumed alcohol would be construed as reasonable suspicion - after all, I've just told you myself that I've been drinking, even if I only said I had one beer. However, if I tell you I haven't had anything to drink and there truly are no outward signs, doesn't it seem intuitive that I would probably have valid grounds to contest being ordered to take the breathalyser in the first place?

Mark

problem is, the definition of "reasonable grounds" can be very vague and subjective.
An officer can "smell" or "detect signs of impairment" even when a completely sober driver is examined.

I have a personal experience when I was going through a roadblock on a Friday night. Was in the car by myself, going home from a friend's place. Didn't drink all night, was chewing gum and told the officer I did not have anything to drink. Was told to pull over and give them a breath sample. When I asked why, the officer said "You were chewing gum, people do that to try and mask the smell of alcohol." So that was their "reasonable grounds" for demanding a breath sample...

but back to my original question, if you had one or two drinks and deny drinking all together, for whatever the reason may be, can you be charged with obstruction/given a fine, if the breathalyzer test shows that you did actually have some alcohol, although not enough to be over the legal limit?

You cannot deny roadside breath tests due not having reasonable suspicions. Somebody with more knowledge than me explained it in another thread, something along the lines that it doesn't infringe on your rights because you gave your consent by using the privilege of the road, and as long as you are not being "targeted", ie roadblock.

"Reasonable Grounds" and "Reasonable Suspicion" have two different meanings. RG has a higher threshold than RS. In order for an officer to make the ASD/breathalyzer demand, he/she must form a reasonable suspicion that the driver has alcohol in his/her body, and had alcohol in his/her body while operating a motor vehicle within the preceding three hours.

The ASD or breathalyzer demand is a demand under the criminal code and the sample must be given forthwith. An admission of alcohol consumption would be enough to form a reasonable suspicion to make the demand. This does not mean that you are impaired, but that there is alcohol in your body. Now if you are obviously plastered, then the officer will more than likely form RG that you are IMPAIRED and move straight to an arrest.

when i was up in ashcroft 2 years ago, i ran into a roadblock, Got asked the question "how much have you had to drink tonight" and answered with " Ive 3 beers between 5pm and now (11:30)" and he said "have a great night"

moral of the story, is you volunteer up the extra information, a timeframe and an exact amount, the office may make the judgement to let you go at they know your not driving drunk

Actually the moral of the story is that while the officer MAY do that, he also MAY rightfully say that you admitting to having had 3 beers is reason to demand a breathalyzer sample. That's what this thread is discussing.

^exactly. and had you said that you did not have anything to drink, and the officer demanded a breath sample, would he have charged you with obstruction if the reading came back showing some alcohol content

You know what would be better for all of us? Is that class 5 drivers weren't allowed to drink and drive at all that limit they put their is pointless I'd much rather have it this way where nobody is allowed to drink a little and drive. It's that 0.08 where people think O maybe I can drive home see what's up. If it wasn't allowed at all it wud be better imo.
Posted via RS Mobile

Not true. My own experiences mirror seekerbeta's: I've gone through NUMEROUS road checks after having had one or two drinks, and NEVER ONCE have I been asked to do the breathalyzer.

Look at it this way: WHAT you say to the cop is probably 10% of his decision on whether or not to make you blow. Regardless of whether you say yes or no, HOW you say it is going to weigh far more heavily into whether he has REASONABLE SUSPICION that you're impaired. All the other factors will come into play as well: how you smell, how you act, if he sees empty cans, if your eyes are bloodshot, if you look nervous...

Remember that cops not only have ACTUAL TRAINING in reading people, most of them have a LOT of experience. Most of the time he's probably figured out if he's going to make you do the ASD before you even open your mouth to deny drinking, so the words that come out of that cakehole are really irrelevant.

If simply lying about not having had a drink were grounds for an obstruction charge, then so would things like "I was only doing the speed limit", or "no, I wasn't talking on my pho... hold on ma, I'll call you back". People lie to cops all the time; lying isn't "obstruction".

do you even have to answer the question at all?

last year in the summer me and my gf and her friend/bf (double date) went out for dinner dt, and then to hang out at English bay until 11pm. I was driving, so I dropped the other 2 at their condo downtown, took the Georgia street to get to main street (a place they always have roadblocks). roll down the window, cops asks, I reply "yeah I had 2 pints at dinner hours ago". he looked around the inside of my truck..."sir can I get you to pull over please".

did the breathalyzer, I was waaaaaaay below the limit, by this time it only showed the bare minimum it could probably read. wasted 20 minutes of my time and his.

The one time I was asked after I had a drink, I told the cop I had 1 beer while watching the Canucks game. He waved me through the road block.

as long as you don't blow beyond the limit, they won't charge you with anything. Remember, not everybody has the same alcohol tolerance. Happened to me before. Cop pulls me over then smells alcohol on me. he then asks me to do breathalyser test.. i pass, he tells me to get back on my way.

The supreme court decided years ago that roadside checks for impaired drivers were an infringement on your charter rights....BUT were justifiable, due to the severe consequences of the crashes caused by impaired drivers.

In many US States and in other countries like Australia, you must agree to random breath testing as a condition for getting your DL. I have been stopped several times and given roadside tests...and I do not drink at all. Takes a few minutes and I'm on my way.


I am not aware of anyone who was charged for criminal code obstruction for lying about drinking....but, as I said already, the lie becomes part of any court or other legal proceeding that may result. It shows you have a guilty mind and are trying to hide your guilt, in so many words.

Nope

R. v. Hebert [1990] 2 S.C.R. 151

I've always just said no.. I was told if I admit to having 1 or 2, then police are allowed to investigate further as they please without any reasonable suspicion (based on specific and articulable facts).

As pointed out, people lie to cops all the time and if you admit to 1 or two, there's a good possibility you've had 3 or 4 and may blow over .05 - so if the officer feels like it, he might just ask you to step out of the vehicle for some field sobreity tests whereas if you say no, you have to either smell of alcohol or look/act like you're inebriated to have to undergo further testing.

That's just what I was told many years ago, and I've stuck to it. Either way, I'm still driving legally after 1 or 2 beer but have to say, it sure is a lot more intimidating than before when they couldn't take your car for a .05..

Smelling it on your breath is reasonable enough to investigate further...

Someone told me that if you tell the cop you had drink no matter how much, the cop have to pull you in for breath testing, true?

Have you not actually read the whole thread? :facepalm:

Right. Hence my saying "you have to either smell of alcohol or look/act like you're inebriated to have to undergo further testing."

If you don't give them any reason to think you've been drinking, they send you on your way. The minute you admit to having 1 or 2, they have reason to test further.

Bottom line is, when I say no, I'm not trying to get away with drinking and driving. I'm trying to avoid getting pulled out of my vehicle and undergoing testing on the side of a road. I know I'm driving legally and just want to be on my way.