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OPP’s Mandatory Breathalyzers Are ‘Constitutionally Sound,’ Top DUI Lawyer Says

News that the Ontario Provincial Police (OPP) is now Request breath samples from all drivers. detained in the Greater Toronto Area, even if they show no signs of deterioration, took many by surprise and raised questions about the fine line between public safety and personal rights.

But as prominent DUI lawyer Calvin Barry told CityNews in an interview Thursday, police have long had the right to require breathalyzers without suspicion of impairment, but are only now exercising those powers on Ontario roads.

“There was a legislative change About seven years ago,” Barry said. “The reason the liberals did all this is because of all the killing on the road and things like the Marco Muzzo Case didn’t help,” he added, referring to the infamous convicted drunk driver who killed three children and their grandfather in a collision in September 2015 in Vaughan, Ont.

“Reasonable suspicion was removed from the code, but the police, for discretionary reasons, decided to keep asking and stop him and say, ‘Hey, sir, have you been drinking?’ or “Hello ma’am, have you been drinking? I smell a little alcohol.” They stuck their heads out the window. But in reality that amendment eliminated reasonable suspicion, only now they are starting to invoke it.”

“It’s just applicability,” he added. “They are upping their game because a lot of people, for example, if they drink vodka they can’t smell it. A lot of people chew gum, a lot of people have drank alcohol from the night before, gone on a bender and didn’t get enough sleep to eliminate it, and therefore, when you ask everyone, the people who would pass that screening now won’t do it because They are I’m going to check everyone.”

In a statement Wednesday, the OPP confirmed that they are now conducting mandatory alcohol testing (MAS) “as part of every traffic stop.”

“As cases of impaired driving continue to rise in Ontario Provincial Police jurisdictions, the OPP is taking its strongest action yet to detect, investigate and eliminate impaired drivers of our roads,” the statement states.

The OPP noted the move comes as drunk driving crashes and charges have increased nearly 30 percent over the previous five-year average.

“Motorists are again reminded to be prepared to provide a breath sample during a traffic stop,” the OPP statement continued.

Barry, who successfully defended former Toronto Maple Leaf Rick Vaive accused of driving under the influence more than a decade ago, he believes some might try to challenge their charges in court if they are stopped during a mandatory check, but he doesn’t think they will have much luck.

“I think we will lose (a legal challenge) on the basis that it is constitutionally sound and these cases in the Supreme Court of Canada and the Ontario Court of Appeal always seem to lean in favor of the victim and the public because everyone has had that ( with driving while intoxicated),” he said.

He also advises people not to refuse to provide a breath sample during a traffic stop, saying it is basically an admission of guilt in the eyes of the law.

“Refusal is not the way to go,” he said, noting that DUI cases are often based on technicalities and problems with breathalyzer machines or their technicians.

“If you simply refuse (the breath sample), the case law says that is an inference that you are drunk because why would you refuse? “You must have been drinking and you’re afraid you’re going to collapse and the courts, the Crowns and the police don’t like a human being holding that evidence hostage.”

“It really limits the types of defenses you have. “It is much better to waste it and take your chances (in a trial).”

Barry emphasized that the best defense to avoiding a charge entirely is to refrain from driving under the influence.

“When people ask me at a cocktail party, they come up to me and say, ‘Calvin, I saw you on TV talking about drunk driving, what’s the best defense there is?’ And I look at them and say, ‘Two words,’ and they come up and I say, ‘Take Uber.'”

Barry said even if you are ultimately found not guilty, the charge alone can have serious consequences.

“If you get a good lawyer and you get free, you still have a 90-day (driving) suspension, you still have to reinstate your license (that’s) another $500, they impound your vehicle for seven days, it gets towed…so those are penalties you have and then when you get off and it comes down to careless driving and your fingerprints and photos are destroyed… you are still in a very unenviable situation of who will bring you back to life when you could. You will not drive for 90 days. “It’s devastating for some people.”

“Some people lose their jobs, they lose their pensions, they lose their spouses because they can’t drive for 90 days.”

Mandatory breathalyzers are “another push to make it more difficult and deterring people from drinking and driving,” he concluded. “Will it work? I guess we’ll find out.”