Blood Samples in Criminal Driving Investigations: a Complicated Process that May Lead to Mistakes and Defences

In certain circumstances police offices have the statutory authority to obtain breath samples or blood samples from drivers. The Criminal Code states that where a police officer has reasonable grounds to believe that a driver has operated a conveyance (i.e., a motor vehicle) while impaired, the police officer may demand breath samples from the driver determine their blood alcohol concentration. Where a police officer has reasonable grounds to believe that because of the driver’s physical condition they may be incapable of providing a breath sample, or that it would be impracticable to obtain a breath sample, the officer may demand that the driver allow blood samples be taken from them by a qualified technician.

We typically see blood samples being taken from our clients when they have been involved in a motor vehicle accident, suffered physical injury and are suspecting of drinking and driving. Where the injuries sustained make it difficult for police officers to obtain breath samples into a breathalyzer machine, blood samples may be required in order to determine if the driver’s blood alcohol concentration is over the legal limit.

Blood sample cases are notoriously complicated. They happen much less often than a typical impaired/.08 charge where an accused person is required to provide samples of their breath. As well, there are a significant amount of requirements placed on police officers that must be complied with in order to legally obtain blood samples. Given the additional complexity of the cases, the likelihood of mistakes giving rise to potential defences is greater.

There are additional requirements and thresholds that must be met prior to obtaining blood samples from an accused person. This is because a blood sample is much more intrusive as compared to obtaining breath samples. Because these cases come up less frequently and because officers do not have as much experience making blood demands, we find that the statutory preconditions for making blood demands are often not complied with and/or that our client’s Charter rights are infringed during the course of the investigation. Depending on the severity of the Charter infringements (and other factors) and the missteps in obtaining the blood samples, there may be an ability to argue for the exclusion of the blood samples and any analysis of the blood from evidence at trial. When blood samples are excluded there may not be sufficient evidence to find a driver guilty of the criminal driving offence.

Issues we see with blood demands and criminal driving investigations are numerous and cannot all be summarized. Some issues that our group sees more often and has experience dealing with include:

• An officer’s lack of subjective and objective belief that a driver’s ability to operate a motor vehicle was impaired by drug and/or alcohol;
• An officer’s failure to determine if a driver is incapable of providing a breath sample rather than a blood sample;
• An officer’s failure to determine if it is impracticable to obtain a breath sample rather than a blood sample;
• An officer’s failure to provide a driver their right to counsel and to allow a driver to speak with a lawyer prior to demanding and/or taking a blood sample;
• The lack of a qualified medical practitioner’s or qualified technician’s opinion that blood samples are necessary to determine the concentration of alcohol in the driver’s blood;
• The failure to have a qualified technician take the blood samples;
• Obtaining blood samples in contravention of the statutory requirements or in breach of a driver’s Charter rights and then attempting to obtain hospital blood samples by way of a warrant;
• Failure to obtain a tele-warrant where a driver is unable to consent or understand the blood demand;
• Failure to obtain blood samples directly into an approved container; and
• Other issues.

If you or someone you know is the subject of a criminal driving investigation, it is important that you seek legal counsel. This is especially the case where there has been an accident resulting in injury or death. Our group has experience dealing with all kinds of criminal driving offences.