Quebec Court of Appeal sets clear guidelines over use of screening devices for breath samples

Police officers who demand drivers to provide breath samples must have an approved screening device with them to be able to immediately conduct the test, ruled a full bench of the Quebec Court of Appeal, upending its own previous guidance that allowed delays depending on the circumstances.

The long-awaited ruling sets clear obligations for police officers, falls in line with Supreme Court of Canada jurisprudence that asserts that delays cannot be justified for practical reasons given that the right to counsel is temporarily suspended, and is widely expected to have an sizeable impact on impending cases, according to criminal lawyers.

“Over the years some rulings have stretched the term immediately or forthwith to mean something else than immediately,” noted Jean-Philippe Marcoux, a Montreal criminal lawyer with Marcoux Elayoubi Raymond LLP who specializes in impaired driving cases. “But this ruling is very clear on the duties police face when using approved screening devices (ASD), and it will have an impact on the cases now in the system. I have a number of cases before the courts where either police did not have an ASD with them or there was a delay before the ASD arrived at the scene.”

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This story was originally published in The Lawyer’s Daily.

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