How Long Can Police Hold and Individual After Administering a Breath Test?


 “Everyone has the right not to be arbitrarily detained or imprisoned.”

Section 9 of the Canadian Charter of Rights and Freedoms


Police are entitled to hold an individual for a period of time after breath tests are administered, but only if the decision to do so is made for legitimate reasons and based on proper considerations.

In R. v. Price, 2010 ONSC 1898 (CanLII), at para 93, Durno J. set out that the types of factors the police must consider before justifiably continuing to detain an individual arrested for a drinking and driving offence

The officer-in-charge must have consideration to all of the circumstances. A non-exhaustive list of those considerations would include:

·         the accused's blood alcohol level, whether the accused was charged with impaired operation,

·         his or her level of comprehension,

·         that the accused is prohibited by statute from driving a motor vehicle (the administrative license suspension),

·         that the accused’s vehicle would have been impounded,

·         whether there was a responsible person available to pick up the accused although the officer-in-charge has no authority to bind the responsible person as a surety would be bound,

·         whether the accused had a criminal record and if so, its contents,

·         whether the accused had outstanding charges,

·          his or her attitude and that by drinking and driving the accused has recently exhibited poor judgment.

It is only after an objective analysis of these factors and any other deemed relevant, that the officer-in-charge can make an informed decision on release.

Being guided only by the blood alcohol level results in too narrow a focus.


In R. v. Mali, 2017 ONCJ 140 (CanLII), the accused was released just under six and a half hours after his last breath test.  The Court accepted that the officer in charge had considered the factors in Price in making a decision about the accused’s release, though the officer relied primarily on the accused’s level of sobriety, assessed by the officer through estimating the rate at which the accused would eliminate alcohol.




 In R. v. Rahman, 2016 ONCJ 718 (CanLII), the Court found that the officer in charge considered very few of the factors it was required to:  the officer did not make any personal assessment of the defendant; he did not embark upon any ongoing assessment as the hours passed by; and other than a perfunctory, hearsay assessment of the defendant’s condition for release, and relying on another officer to “check the prisoner every four hours”, he essentially ignored the defendant for seven hours.   This resulted in a breach of section 9 of the Charter and the exclusion of the breath readings evidence under section 24(2).



[FN: The “rule of thumb” elimination rate of 15 milligrams of alcohol per hour is sometimes used by police.]

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