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Tom Rees | Criminal Defence Lawyer Winnipeg

Can I Speak with a Lawyer Before I Give a Breath Sample?

When you are arrested or detained, you have the right to consult with a lawyer to obtain advice. The police must also provided a 24-hour toll-free legal aid number for those who do not have a lawyer to call but wish to obtain legal advice. This is your constitutional right.

However, the right to consult with counsel is not absolute. The Supreme Court of Canada has determined when an officer is making a roadside demand, there is no right to consult counsel. These are instances where an officer is asking you to provide a sample of your breath for a screening device.

Click here to learn about the difference between a screening device and breathalyzer.

Evidence gathered before you have been provided your right to counsel, such as the screening device test result, are only useable to provide grounds for a breathalyzer demand and are not admissible at trial to prove impairment.

As your right to counsel is being denied, once the police suspect you have alcohol in your system they are required to make the breath demand “as soon as practicable”. The officer is also required to the provide the screening device “forthwith”. Where the screening device is not readily on hand, the delay waiting for the device may result in invalidating the demand. Delay in making the breath demand or providing the screen device may result in the exclusion of the sample and any subsequent evidence.

Each case is fact specific. A lawyer will be able to examine your case to determine if your constitutional rights have been violated by the police during the course of their investigation.


Click here to read Tom Rees & Company’s article about minimum sentences for impaired driving.

Click here to read more about detention by police.

Click here to learn about whether to provide a breath sample to police.

To read more articles written by Joshua Rogala, click here to view his website.


*Note: The information on this page is for general knowledge and is not legal advice.