Drinking and Driving:  The Fruit Juice Memo


Roadside Screening

Section 254(2) of the Criminal Code authorizes police to demand that the operator of a motor vehicle provide a sample of his or her breath into an “approved screening device” where the police have reasonable grounds to suspect that the person to whom the demand is made has alcohol in their body. 

A “fail” result on an “approved screening device” may be considered, along with any other indicia of impairment, in satisfying the requirement for reasonable grounds to demand a breath sample pursuant to s. 254(3) of the Criminal Code. 

Reasonable Grounds

There are two components to reasonable grounds – a subjective belief which viewed objectively must be reasonable. 

An officer is entitled to delay the administration of the test where there are grounds to believe that a delay is necessary.  For instance, an officer may have reason to believe that the test may be inaccurate because of mouth alcohol.

            R v Dewald [1994] 92 CCC 3rd 160.

However, the mere possibility of alcohol being consumed within the same time frame does not automatically render test results as invalid. 

 R v Einarson [2004] 183 CCC 3rd 19.   

The Memo of Direction

On the 26th of November 2013, Deputy Commissioner Blair of the Ontario Provincial Police issued a Memo of Direction that (with respect to approved screening devices) provides as follows: “further investigation revealed that any hand sanitizing product with an alcohol base, fruit juices, sugary foods/drinks and bread products will affect the readings of the ASD.” 

The Memo goes on to indicate that members are to “please ensure no food or drink is consumed fifteen minutes before a test is commenced…”. 

R. v. Wong

In R v. Wong [2016] O.J. No. 6043, the Ontario Court of Justice concluded that the officer’s “belief that the results of the ASD was reliable [was] not objectively reasonable given his fail­ure to advert to the potential effect of recent consumption of food or drink on the reliability of the test”.  The officer’s belief in the reliability of the ASD result was grounded in his lack of knowledge about the Memorandum of Direction and his failure to follow the protocol articulated in it

R v. Wong, at para. 29.

R. v. Duchesne

In R. v. Duchesne, 2017 ONCJ 413, the Ontario Court of Justice found that it was unable to follow the decision in R v. Wong, primarily because the Memo of Direction was hearsay, and therefore (as is the general rule with all hearsay) could not be used for the truth of its contents.



Stuart O'Connell, O'Connell Law Group (leadersinlaw.ca).




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