The Timing of Breath Demands (Approved Screening Devices & the “Forthwith” Requirement)
Criminal Code Section 254(2) (2) If a peace officer has reasonable grounds to suspect that a person has alcohol or a drug in their body and that the person has, within the preceding three hours, operated a motor vehicle … the peace officer may, by demand , require the person … (b) to provide forthwith a sample of breath that, in the peace officer’s opinion, will enable a proper analysis to be made by means of an approved screening device and, if necessary, to accompany the peace officer for that purpose. [Emphasis added.] Compliance with the “forthwith” standard is both a statutory and constitutional precondition for a lawful search and seizure: R. v. Bernshaw , 1995 CanLII 150 (SCC), [1995] 1 S.C.R. 254, at para. 51. Further, both the demand for an ASD (approved screening device) sample and its provision must be “forthwith”. Burden of Proof in Warrantless Searches Where the search and seizure of the defendant’s blood-alcohol content is no...