Approved instrument


Approved instrument

The expression approved instrument is a Canadian term defined [ [http://laws.justice.gc.ca/en/ShowDoc/cs/C-46/bo-ga:l_VIII::bo-ga:l_IX//en?page=6&isPrinting=false#codese:254] Criminal Code of Canada section 254 (1)] in the Criminal Code of Canada as:

approved instrument means an instrument of a kind that is designed to receive and make an analysis of a sample of the breath of a person in order to measure the concentration of alcohol in the blood of that person and is approved as suitable for the purposes of section 258 by order of the Attorney General of Canada
An approved instrument demand can be made whenever a police officer believes on reasonable and probable grounds that a person has committed an impaired or over 80 offence within the preceding 3 hours. [ [http://www.lawyers.ca/international/sectiondetail.asp?ID=3&state=Ontario] Criminal Code of Canada section 254(3)] The approved instrument breath demand should be made by the same officer who formed the reasonable and probable grounds. In order for the instrument to be approved, it must be calibrated 15 days within the time of testing. All roadside test kits must be calibrated in Ontario. [ [http://www.lawyers.ca/private/Impaired2000/results.asp?ID=94] R. v. Pavel] . The indicia of impairment leading to the formation of the reasonable and probable grounds must be apparent before or at the time the opinion is formed, not discovered ex post facto. [ [http://www.lawyers.ca/private/Impaired2000/results.asp?ID=82] R. v. Gavin] . The "Approved Breath Analysis Instruments Order" [ [http://www.lawyers.ca/international/students/discussiondetail.asp?Law=DUI&T1=Approved+Instrument&ID=86] Canada Regulations SI/92-105, s. 2; SI/92-167, s. 1; SI/93-61, s. 1; SI/93-175, s. 1; SOR/94-422, s. 1; SOR/94-572, s. 1; SOR/95-312, s. 1; SOR/2000-200, s. 1; SOR/2002-99, s. 1 ] establishes certain breath instruments as approved instruments for use in Canada. A breath instrument is commonly known in the United States as a breathalyzer.

It is a criminal offence in Canada to refuse an approved instrument demand that has been lawfully made. Section 254(5) of the Criminal Code of Canada provides as follows:

(5) Every one commits an offence who, without reasonable excuse, fails or refuses to comply with a demand made to him by a peace officer under this section.

The calibration of an approved instrument in Canada should be checked using a standard alcohol solution at a specific temperature using a simulator each time the operator of the approved instrument conducts a subject test. [ [http://ww2.csfs.ca/contentadmin/UserFiles/File/EtoHEn.pdf ] Alcohol Test Committee Recommended Standards and Procedures page 114] .

Evidence of the results of subject tests using an approved instrument in the context of several conditions precedent presumptively becomes proof, in the absence of evidence to the contrary, that the blood alcohol concentration at the time of the breath tests equals blood alcohol concentration at the time of the driving or care or control. [ [http://www.lawyers.ca/international/sectiondetail.asp?ID=6&state=Ontario] Criminal Code of Canada section 258 presumptions]

References


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