An officer’s intuition alone about whether a person has alcohol in their body will not justify detaining that person to conduct a test with a road side screening device.
A man was observed by police to roll through a stop sign. The police pulled him over, found two passengers in the car with a case of beer cans, and noticed the smell of alcohol emanating from the car. The officer asked if the driver had been consuming alcohol and the driver said that he had not. The officer testified that because of the situation in the car, he believed that the driver was misleading him.
The court found that the officer had a subjective suspicion that the driver was misleading him about having consumed alcohol based on the two intoxicated passengers and the case of beer cans in the car.
Leaving aside the officer’s subjective grounds, there are no other grounds. In his evidence he eliminated all of the “usual” evidence:
1. The driver denied consuming alcohol.
2. He demonstrated control of his fine motor skills.
3. His breath produced no odour of alcohol.
4. There is no evidence of irregularity in the appearance of his eyes, complexion or clothing.
5. There is no evidence of an inability to walk properly.
However, the court also found that there was no other evidence to make that suspicion reasonable. The Police Officer did have grounds to pull the driver over, but not to demand that he participate with the ASD.
The driver was acquitted.
Link to Case: R. v. Olnick, 2014 MBPC 66