- the demand was forthwith;
- the officer had reasonable grounds to suspect that a person has alcohol in their body;
- within the past three hours you were driving; and
- the sample of breath will be taken forthwith.
What is a reasonable suspicion? Courts have described that reasonable suspicion:
is a lower standard than reasonable and probable grounds because it engages the reasonable possibility, rather than probability of crime. Because the standard deals with possibilities, there will be cases where the police will suspect that innocent people are involved in criminal conduct. However, the suspicion held by the police cannot be so broad that it transcends to the level of generalized suspicion - suspicion that attaches to a particular location or activity instead of a specific person. R. v. Chehil, 2013 SCC 49, at paras. 26-28
Evidence that has been found to be reasonable suspicion by the courts in the past have included but is not limited to: the presence of an odour of alcohol on a person's breath and a person's admission to alcohol consumption.
The law still requires the officer have reasonable suspicion if an officer, without an approved screening device in his possession at the time of the stop, wants to administer a road side screening device.
However, the law has now drastically changed if the officer has a roadside screening device with him. As of today, the law will allow officers to demand a roadside breath sample without reasonable suspicion that the driver presently has alcohol in their body.
This new legislation will be subject to significant Charter challenges. The question will be whether requiring people to provide evidence against themselves without even the low test of reasonable suspicion is constitutional. There is also the potential for police to abuse this power and target certain portions of the population more than others.