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Old 12-28-2018, 09:19 AM   #221
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Do you wonder why the government press release doesn’t explain the powers police have to pull you over under ‘common law’ and traffic safety legislation?

Maybe so people like you will blindly tell everyone they know not to worry because ‘probable cause’ is required for a stop? Which is simply not true.

Police can stop any car they want to check that the driver has a license and that the car has insurance and is mechanically safe etc. They don’t have to have grounds to believe the driver is not licensed or that the car is uninsured or dangerous. Under the old law, when that was the purpose of the stop, they couldn’t just launch an arbitrary criminal impaired investigation.

There is zero ‘probable cause’ required for stopping you and then making you provide a roadside breath sample under the current law. Police can pull you over whenever they want and now, unlike before where they had to have the most minimal reason to suspect you were doing anything illegal before detaining you and forcing you to provide bodily samples you are automatically obligated to provide same on demand.

Another part of the new law people are not talking about here is that you are guilty of a criminal offence for having blood alcohol readings over .08 mg% within two hours of driving. The offence no longer is about being over the limit at the time you drive. So yes, you can be convicted of a crime for driving sober and then drinking to more than the limit after parking at your destination.

But no worry, so long as you prove you were under the limit at time of driving (in a manner that has your evidence be consistent with the breathalyzer result because the result is now conclusive proof of your BAC) you still have a chance to show you didn’t commit an offence. You will have to hire a specialized lawyer and a toxicologist expert (last one I hired charged $400 per hour by the way).

Another interesting change not being discussed is that a statutorily compelled statement under the traffic safety act that has always clearly been inadmissible in criminal proceedings because, well it is the definition of an involuntary statement, is now declared to be admissible. So yes, the state can now force you under threat of imprisonment to give them a statement and then use that to imprison you. The SCC has ruled that is unconstitutional but the government is going to give it another go.

Also, don’t forget provincial driver control board license suspensions will all be proceeding independent from the criminal allegation. Incidentally, you might recall parts of Alberta’s last provincial regime based on ‘safety’ were struck as being unconstitutional as well.

But anybody even remotely concerned about state overreach and slippery slopes is apparently living in an alternate reality and deserves to be mocked according to some on this site.

Just because the grade isn’t steep doesn’t mean we are not on a slippery slope.

Remember the government itself clearly knows they are breaching potentially each of section 7, 8 and 9 of the Charter with these changes and have prepared in advance to ‘save’ the law with arguments under section 1. People being concerned about unwarranted state intrusion are not the only ones who see potential problems with what has been done here. You might want to read the law more closely before defending it so strongly...and incorrectly.
A roadside stop to ask for license, registration and proof of insurance was always, and will continue to be just a fishing expedition for any criminal conduct.
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Old 12-28-2018, 10:08 AM   #222
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Originally Posted by MBates View Post
Do you wonder why the government press release doesn’t explain the powers police have to pull you over under ‘common law’ and traffic safety legislation?

Maybe so people like you will blindly tell everyone they know not to worry because ‘probable cause’ is required for a stop? Which is simply not true.

Police can stop any car they want to check that the driver has a license and that the car has insurance and is mechanically safe etc. They don’t have to have grounds to believe the driver is not licensed or that the car is uninsured or dangerous. Under the old law, when that was the purpose of the stop, they couldn’t just launch an arbitrary criminal impaired investigation.

There is zero ‘probable cause’ required for stopping you and then making you provide a roadside breath sample under the current law. Police can pull you over whenever they want and now, unlike before where they had to have the most minimal reason to suspect you were doing anything illegal before detaining you and forcing you to provide bodily samples you are automatically obligated to provide same on demand.

Another part of the new law people are not talking about here is that you are guilty of a criminal offence for having blood alcohol readings over .08 mg% within two hours of driving. The offence no longer is about being over the limit at the time you drive. So yes, you can be convicted of a crime for driving sober and then drinking to more than the limit after parking at your destination.

But no worry, so long as you prove you were under the limit at time of driving (in a manner that has your evidence be consistent with the breathalyzer result because the result is now conclusive proof of your BAC) you still have a chance to show you didn’t commit an offence. You will have to hire a specialized lawyer and a toxicologist expert (last one I hired charged $400 per hour by the way).

Another interesting change not being discussed is that a statutorily compelled statement under the traffic safety act that has always clearly been inadmissible in criminal proceedings because, well it is the definition of an involuntary statement, is now declared to be admissible. So yes, the state can now force you under threat of imprisonment to give them a statement and then use that to imprison you. The SCC has ruled that is unconstitutional but the government is going to give it another go.

Also, don’t forget provincial driver control board license suspensions will all be proceeding independent from the criminal allegation. Incidentally, you might recall parts of Alberta’s last provincial regime based on ‘safety’ were struck as being unconstitutional as well.

But anybody even remotely concerned about state overreach and slippery slopes is apparently living in an alternate reality and deserves to be mocked according to some on this site.

Just because the grade isn’t steep doesn’t mean we are not on a slippery slope.

Remember the government itself clearly knows they are breaching potentially each of section 7, 8 and 9 of the Charter with these changes and have prepared in advance to ‘save’ the law with arguments under section 1. People being concerned about unwarranted state intrusion are not the only ones who see potential problems with what has been done here. You might want to read the law more closely before defending it so strongly...and incorrectly.
Thank you for sharing your experience and insight here.
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Old 12-28-2018, 10:24 AM   #223
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I remember this thread. Just gave it a read again.

The questionmark I have is for people who drink fairly often who supposedly won't feel the same effects of a 0.05 as most. Therefore you can't use subjective feeling as a guide to impairment, which seems odd.

Edit: another question. What about the next morning? I always feel like my breath smells like pure alcohol when I'm hungover, even if it's been 12 hours. Would I blow a 0.05 then since the breathalyzer measures alcohol content of the air to judge my blood content?
My friend got a DUI mid afternoon of 'morning after'. He thought he was 100% fine.. was just coming home from brunch (no booze). So it happens.. with this new law in place it's something to consider
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Old 12-28-2018, 10:52 AM   #224
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My friend got a DUI mid afternoon of 'morning after'. He thought he was 100% fine.. was just coming home from brunch (no booze). So it happens.. with this new law in place it's something to consider
Ok this is crazy.

Was this guy blitzed out of his mind or what?

What is the false positive rate of breathalyzers the morning after? He felt 100% and still blew over when people are saying "over" is pretty drunk.
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Old 12-28-2018, 11:40 AM   #225
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You know what else you can do to prove you're innocent? Ask for the blood test, which is very accurate.
This is from a few pages back, but stuck out to me as the prime example of how you've already accepted a new standard for "justice" in this country. This updated law isn't the start of that trend, but another chink in the protections of "presumed innocent."
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Old 12-28-2018, 11:42 AM   #226
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Some things seem to be purposefully misleading in the news. Like the lawful reason to pull someone over. The news makes it seem like a lawful reason is an infraction of a driving law, not just a random spot check. The news also mentions Ireland first and foremost as an example of a country who's DUI death rate was cut in half after the random breath test law was passed. But they don't mention that the penalties in Ireland were also changed from a slap on the wrist fine and demerits to imprisonment and criminal convictions. That alone is enough to account for the drop.



I assume the news gets their information first hand so I'm wondering why police or government law makers want this message formed this way.
It’s bad reporting but is par for the course. However I think it’s worth mentioning it was MADD that’s been throwing out those obviously false comparisons to Ireland. The media just can’t be bothered to find out if the crap MADD is spewing has any truth to it at all.
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Old 12-28-2018, 11:54 AM   #227
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Ok this is crazy.

Was this guy blitzed out of his mind or what?

What is the false positive rate of breathalyzers the morning after? He felt 100% and still blew over when people are saying "over" is pretty drunk.
It is odd. Even after a night of heavy drinking, a 200lb male should be well under 0.08 after 6 hours of not drinking. Unless he consumed near-coma-inducing levels of alcohol, at which point I don’t think brunch would’ve been possible.

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This is from a few pages back, but stuck out to me as the prime example of how you've already accepted a new standard for "justice" in this country. This updated law isn't the start of that trend, but another chink in the protections of "presumed innocent."
This was referring to the failure of the first test. If you fail a BAC test, you’re no longer in the “presumed innocent” category. You may still be innocent due to the nature of the tests, but it does require a second test to prove that.

It wasn’t meant to state what you’re suggesting.
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Old 12-28-2018, 11:55 AM   #228
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...
Another part of the new law people are not talking about here is that you are guilty of a criminal offence for having blood alcohol readings over .08 mg% within two hours of driving. The offence no longer is about being over the limit at the time you drive. So yes, you can be convicted of a crime for driving sober and then drinking to more than the limit after parking at your destination.

....
This part is really ####ed up. So I can drive home after having let's say 4 beers, for sake of argument, which would have me blow 0.045 which is perfectly legal. Someone makes a call saying I`m driving drunk (I`m not, but they saw me swerve and assumed I`m drunk because they didn`t see the squirrel I avoided) and the cops show up at my house 1.5 hours later, during which time I threw back another 4 beers putting me at 0.085. And I`m now convicted of DUI for never breaking the law? Is this correct? if so it is a really messed up law.

Also, since you seem knowledgeable about this topic, I was told by a friend that if you blow less than 0.05 but anything above 0 they can detain you at the checkstop to get you to blow again in 20 mins (for up to 2 hours total) to see if your BA is on the rise. I wasn't able to confirm this anywhere else but all the news stories are so canned and gloss over so much, so I thought I'd ask here. If this is true I have a problem with it for 2 reasons; first, this completely throws the 'it's only a couple min inconvenience to save a life', as now having just one beer at the bar after work or during the game would be much more than just a min. second, relates to my first paragraph, you're driving home with BA of 0.045, perfectly legal, but they detain you and make you wait 20 mins to blow again, now you blow 0.05. Well ####, I would have been home in 5 mins and never broke the law, but now since I was detained I'm convicted?
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Old 12-28-2018, 12:25 PM   #229
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The law that holds you liable for your BAC after you stop driving makes sense if it was combined with fleeing the scene of an accident or refusing to stop for a police car. There have been defenses where people drink after an accident so that it is impossible to prove they were drunk.

It definitely is open to abuse without strict limitations.


The drunk the next day think though is very possible. If you were getting black out drunk and have a BAC or .24 or so with your last drink in your blood stream at 4am you don’t get to driving shape (assuming .015 per hour) for 12 hrs. Waking up drunk is wired becuase your body thinks your sober but you aren’t good at doing things. So you get up at noon to go for brunch and you feel awesome becuase the hangover hasn’t hit you yet.

Last edited by GGG; 12-28-2018 at 12:32 PM.
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Old 12-28-2018, 03:38 PM   #230
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Do we actually have a charter right against self-incrimination?

Maybe Section 7 could apply but their certainly isn’t anything specific in the text. Does case law shed some light on this?
Yes, the principles of fundamental justice in section 7 include rights against self-incrimination beyond those specified in section 13. The beginning of this article explains it fairly well:

https://www.justice.gc.ca/eng/csj-sj...eck/art13.html
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Old 12-28-2018, 03:59 PM   #231
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This part is really ####ed up. So I can drive home after having let's say 4 beers, for sake of argument, which would have me blow 0.045 which is perfectly legal. Someone makes a call saying I`m driving drunk (I`m not, but they saw me swerve and assumed I`m drunk because they didn`t see the squirrel I avoided) and the cops show up at my house 1.5 hours later, during which time I threw back another 4 beers putting me at 0.085. And I`m now convicted of DUI for never breaking the law? Is this correct? if so it is a really messed up law.

Also, since you seem knowledgeable about this topic, I was told by a friend that if you blow less than 0.05 but anything above 0 they can detain you at the checkstop to get you to blow again in 20 mins (for up to 2 hours total) to see if your BA is on the rise. I wasn't able to confirm this anywhere else but all the news stories are so canned and gloss over so much, so I thought I'd ask here. If this is true I have a problem with it for 2 reasons; first, this completely throws the 'it's only a couple min inconvenience to save a life', as now having just one beer at the bar after work or during the game would be much more than just a min. second, relates to my first paragraph, you're driving home with BA of 0.045, perfectly legal, but they detain you and make you wait 20 mins to blow again, now you blow 0.05. Well ####, I would have been home in 5 mins and never broke the law, but now since I was detained I'm convicted?
It is important to not conflate the provincial and federal legislation and also what can be done with actual grounds to suspect a person has alcohol in their body as compared to without. I don’t think I could just say yes or no to the question you are asking without a fair bit of clarification that is not well suited to a message board.

And in the interest of being clear, here is the actual text of the Criminal Code offence and exception (for alcohol)

320.14 (1) Everyone commits an offence who

(a) operates a conveyance while the person’s ability to operate it is impaired to any degree by alcohol or a drug or by a combination of alcohol and a drug;

(b) subject to subsection (5), has, within two hours after ceasing to operate a conveyance, a blood alcohol concentration that is equal to or exceeds 80 mg of alcohol in 100 mL of blood;

(c) subject to subsection (6), has, within two hours after ceasing to operate a conveyance, a blood drug concentration that is equal to or exceeds the blood drug concentration for the drug that is prescribed by regulation; or

(d) subject to subsection (7), has, within two hours after ceasing to operate a conveyance, a blood alcohol concentration and a blood drug concentration that is equal to or exceeds the blood alcohol concentration and the blood drug concentration for the drug that are prescribed by regulation for instances where alcohol and that drug are combined.

(2) Everyone commits an offence who commits an offence under subsection (1) and who, while operating the conveyance, causes bodily harm to another person.

(3) Everyone commits an offence who commits an offence under subsection (1) and who, while operating the conveyance, causes the death of another person.

(4) Subject to subsection (6), everyone commits an offence who has, within two hours after ceasing to operate a conveyance, a blood drug concentration that is equal to or exceeds the blood drug concentration for the drug that is prescribed by regulation and that is less than the concentration prescribed for the purposes of paragraph (1)(c).

(5) No person commits an offence under paragraph (1)(b) if

(a) they consumed alcohol after ceasing to operate the conveyance;

(b) after ceasing to operate the conveyance, they had no reasonable expectation that they would be required to provide a sample of breath or blood; and

(c) their alcohol consumption is consistent with their blood alcohol concentration as determined in accordance with subsection 320.31(1) or (2) and with their having had, at the time when they were operating the conveyance, a blood alcohol concentration that was less than 80 mg of alcohol in 100 mL of blood.
...
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Old 12-30-2018, 03:52 PM   #232
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Wow, MBates is continually a few notches above the entire site on criminal law and charter discussion. What a treat to have him here.
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Old 12-30-2018, 05:13 PM   #233
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I wish I could get my wife to drive me to a cop shop, after drinking 6 beers in 5 hours, and I could blow in their breathalyzer, just to see what I register.
They should have drop in days for this.
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Old 12-30-2018, 05:23 PM   #234
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I blew a .06 after drinking 5 beers over a few hours and then a tall glass of water

You gotta be pretty blatantly drunk to get a full fledged .08 DUI
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Old 12-30-2018, 06:37 PM   #235
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Wow, MBates is continually a few notches above the entire site on criminal law and charter discussion. What a treat to have him here.
With a name like MBates you either get smart or die. It's that name that helped to make him strong.
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Old 12-30-2018, 06:39 PM   #236
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I blew a .06 after drinking 5 beers over a few hours and then a tall glass of water

You gotta be pretty blatantly drunk to get a full fledged .08 DUI
But how did you feel?

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I wish I could get my wife to drive me to a cop shop, after drinking 6 beers in 5 hours, and I could blow in their breathalyzer, just to see what I register.
They should have drop in days for this.
Seriously, use it as driver education.
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Old 12-30-2018, 11:56 PM   #237
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I blew a .06 after drinking 5 beers over a few hours and then a tall glass of water

You gotta be pretty blatantly drunk to get a full fledged .08 DUI
Case closed!

Except............... as everyone (hopefully) knows....and has already been mentioned multiple times but doesn’t seem to be sinking in with anyone.......:

- how much do you weigh? How tall are you? How many mL of blood are in your body?
- how much did you eat that night?
- what does “a few hours” mean?
- how fast do you normally process alcohol?
-etc etc etc etc

Any schmuck can pop on here and say anecdotal useless “well I do this so it must be good!” But that turns a blind eye to basic biology, physics and chemistry in that human beings are all different.

Humans are actually different sentient beings.

Thus, everyone is different.

Thus...........
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Old 12-31-2018, 12:32 AM   #238
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I don't understand why we bother with all this to begin with, when it would be simple and straightforward to make the law zero tolerance for any alcohol when driving. This coming from someone who thinks we should be able to drink openly in public, so long as you're not causing problems.
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Old 12-31-2018, 12:46 AM   #239
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Because that would be stupid. So you can’t go anywhere and have a drink? Okay.

Better idea- start actually cracking down on phone use in cars. Like, for real, not fakesies.
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Old 12-31-2018, 12:56 AM   #240
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I don't understand why we bother with all this to begin with, when it would be simple and straightforward to make the law zero tolerance for any alcohol when driving. This coming from someone who thinks we should be able to drink openly in public, so long as you're not causing problems.
Simple, straightforward, and incredibly stupid.
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