Can I request a chemical test/blood sample instead of a breathalyzer in Winnipeg?

Question

I was pulled over at 3 am on a Sunday morning while driving my drunk friends home. The officers both came up to my car at the same time. The one that came to my window told me he pulled me over for running a red light. He then proceeded to ask for my License and registration. Then asked me if I would take a breath test to which I replied "Sure, as long as a supervisor is present. He then asked me to get out of the vehicle and told me I was under arrest for refusing a breathalyzer and I offered him a blood sample to which he replied "nope, you refused already."

Was I legal to request a blood sample instead of a breath test for the simple fact that i have asthma and it is tough for me to sustain a long breath, especially when late at night or when I wake up that is when the asthma provides me the most difficulty?

Also if I had truly ran a red light wouldn't he have given me a ticket for that as well?

I feel I was being harassed and profiled, because I am in my early 20's and I had two drunk people with me. I wasn't being rude to the officers, although they may have not liked me trying to stand up for my own rights, as most officers don't like that.

They suspended my license and now i am afraid I will lose my license for two years because of this. The police didn't make any mention of me slurring, stumbling, or smelling of alcohol. I think they were just fishing because they have a ticket quota campaign going on in Winnipeg right now for all traffic offenses, and they just wanted to bust someone.

Also they did not tell me about implied consent, nor did they ask if I couldn't provide a sample due to an injury or medical condition. Also they did not even produce a breathalyzer for me to blow into so how could I refuse, without saying "no", if they didn't even give me the apparatus to blow into?

Answer 1

I am a Breathalyzer Technician and I have severe asthma I can blow into the instrument without any problem. When a demand for a breath sample is made it is not a negotiation or a bargain session you do not set the conditions. You refused to provide a breath sample which is the same as taking the test and failing.



If you can walk and breath you can blow into the instrument

Answer 2

Well, this is a tricky situation. I'm not a lawyer, but here are my thoughts on the situation:



There were two police officers present, correct? And for your part, you have your word against the two officers (your drunk friends don't count) that you refused a breathalyzer test. So things aren't looking good for you. To your benefit, however, is the fact that you never did eventually get a test of your breath, blood, or urine, so the police have only their observational evidence that you *might* have been impaired. The reason that we have approved measuring devices is to remove all doubt about whether a person is impaired or not. There's also the notion that you're innocent until proven guilty of the impaired driving charge (if it is pressed).



The issue of whether you "refused" the breathalyzer is something a lawyer could better answer. In my mind you didn't refuse, but the point could be argued that if a supervisor was not present, that you conditionally refused the breathalyzer. In fact, I believe that under the statute, the breath test can only be administered by a trained officer anyhow -- it's a pity you didn't know this beforehand. You'd have been sitting around talking casually about your asthma while the officer with the machine made his way to the area.



But for that matter, you *can* refuse the breathalyzer if you have a "reasonable excuse." The business with whether the police had reasonable and probable grounds to test you? Well, you ran a stop sign, buddy. 3am on a Sunday morning. The cops would've been reasonable people to assume you might have been drinking. Especially if the booze from your friends' breath was clouding the issue.



So forget about the "running the stop sign" issue. You're guilty, pay the fine, get it over with.



The key things to raise with a lawyer (or free legal aid, if you can get it locally) would be: 1) Was it a refusal or was it "consent with a request to have additional officers present?" and 2) Did you have reasonable grounds for "refusing" (i.e. requesting an alternate test method) on the basis that you have asthma.



Both would depend on the statute as written, as well as the case law on the subject.

Answer 3

You need to consult a real lawyer, most people on here are from the US and don't even know their own laws (not referring to the first answerer, they actually know what they are talking about).

It is impossible to advise you without reading the Police report and their version of events. And your version doesn't answer all the questions.



You said you wouldn't take the test until a supervisor was present. Not that you had asthma. When did you tell them?



And no, they dont' have to give you the ticket for running the red light. You were just arrested, charged with impaired driving, more than likely going to lose your license, the vehicle was most likely towed. A ticket on top of that may be viewed as a little excessive. Personally, I don't add the tickets to the offence.



The Police don't have to mention all of the evidence they have on you, its all in the report. Plus there are many signs of being impaired besides slurred speech and stumbling. They must have the smell of alcohol to read the demand.



As for not producing the breathalyzer, that was the procedure in another province I worked in, here, it is not.



You may have grounds to fight it, however your best way to find out is to hire a lawyer. They can read the officer's version and are familiar with all case law.



And for the record, I dont' buy the profiling.



ETA-

The thing with the charge of Refusal is that the officer only needs to prove the stop was justified and that they had the grounds to read the breath demand. They do not need to prove you were actually impaired.

You do have the right to refuse, but you do need to prove the stop was not justified and there were no grounds for the demand.

In your case, there may also be an issue with if you really refused or not.