What Is Canada's New Two Hour Breathalyzer Rule And Why Is It Being Called Unconstitutional

This article was originally published on January 9, 2019. 

Canada introduced new impaired driving laws in December 2018 but lawyers are saying one of the most controversial new rules have gone largely unreported. Canada's new two hour impaired driving rule makes it so that police can demand a breath sample up to two hours after you've been driving and the onus is on you to prove you weren't impaired while in your car. 

READ ALSO: Canada's Strict New Impaired Driving Laws And Penalties Officially Now In Effect

For example, say you were driving home for the night and then enjoy a couple of beverages at home. Police could show up at your door demanding a breath sample. If you don't provide one, you'll be arrested. If you blow over the limit, you'll be arrested for impaired driving, even though you were sober while driving - now, it's on you to prove that. 

Of course, the police likely aren't going to randomly go door to door demanding breath samples. However, now if someone calls in and reports that you were driving suspiciously, police can come sample you and arrest you if you fail. Essentially the two-hour impaired driving rule makes it illegal to drink at home if you drove two hours before that. 

The law isn't limited to people at home, either. Police could also come into a restaurant or bar where people have been drinking, and most likely could have driven to, and demand breath samples. In both these scenarios, it will be really hard to prove you weren't drinking when you drove earlier. 

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That's what is prompting Canadians to call this new two-hour rule unconstitutional. According to some lawyers who specialize in impaired driving cases, the new laws are ridiculous and erroneous since it allows police to randomly prosecute people even if they weren't seen or proven to be driving while impaired. One Toronto-based lawyer told Global that this new rule is “a serious erosion of civil liberties." 

Canadians agree with them. On a Reddit thread about the two-hour impaired driving rule, many Canadians call the laws unjust, ridiculous, and a slippery slope while also suggesting that there are grounds to challenge them in the supreme court. 

Many criminal lawyers back up that this law may, in fact, be unconstitutional and like Canadians, they suggest that an appeal in the Supreme Court of Canada is likely in the future. 

READ ALSO: Canadians Are Livid Over The New Impaired Driving Laws That Allow Officers To Give Roadside Blood Tests

The problem is that appeal could take years to be heard in the courts. Until then, thousands of Canadians could find themselves unjustly arrested and even convicted of impaired driving, a crime they may have never committed. 

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The only way to avoid breaking this new two-hour impaired driving rule is for Canadians to avoid drinking or become otherwise impaired at all for two hours after driving. If you are convicted of impaired driving, the new law also includes harsher penalties including automatic license suspensions.