DUI charges and illegal search and seizure

Section 8 of the Canadian Charter of Rights and Freedoms protects people from being illegally searched by the police.

Those who are reasonably detained and under arrest can be searched for weapons and evidence of the crime that may be destroyed. This does not give the police a broad right to search the vehicle and in particular the person of someone being detained as a possible impaired driver.

Sometimes police will go too far and extend their search beyond what is legally allowed by the Charter. Just because a person is drunk and behind the wheel of a car does not necessarily mean the police have a right to search through their trunk. Every case is different but there are limits to the police’s power to search a person suspected, detained, or arrested for drunk driving. A person who is detained is not permitted to leave but not yet being charged.

Sometimes the police will overreach their legal ability to search which may cause the impaired driving case to ultimately be thrown out despite the accused being over 80 and driving.

If police seize evidence without obtaining a warrant this evidence may be thrown out for being collected unconstitutionally (violating s. 8 Charter rights). In some cases the police have a right to seize a phone or a bag but not search through it without a warrant if there are no exigent circumstances such as an immediate threat to officer safety or preserving evidence of a potential crime before it can be destroyed.

Some accused, who may be drunk and driving illegally may have other illegal contraband in their vehicle such as illicit drugs or weapons. If the police discover this illegally and charge them it could lead to the charges being dropped because their Charter right against unreasonable search and seizure was violated (there was no rush and the person if drunk could not legally consent to a search).

Canadian Charter of Rights and Freedoms and being charged for failure or refusing provide a breath sample by the police.

Many people who get stopped by the police believe that they cannot force them to provide a breath sample as it would be a violation of their Charter rights.

While the police cannot force someone to blow into an alcohol screening device, refusing to do so will lead to criminal charges for Failure/Refusal to Provide a Breath Sample which carries the same penalties and punishments as impaired driving and over 80 mg per 100 ml of blood. Most people charged with Failure/Refusal think that the police cannot force them to blow (really who could?) but Parliament has crafted the law to ensure the same penalties irregardless.

Anyone who is demanded by the police to provide a breath sample should do so because if they don’t they will be charged with Failure or Refusal which is as serious as impaired driving or over 80. If you do get charged with Failure or Refusal all hope is not lost as you may be able to beat the charges if the demand for a breath sample was not reasonably made or you were improperly treated by the police at any point in the process.


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Are you a lawyer? If you are defending an impaired driving related case and are looking for expert advice regarding possible defences, case strategies, and information release management call us at: 647-228-5969.

Please note: We do not accept legal aid certificate cases. All clients are handled on a private retainer only.

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