Acts and Regulations

M-17 - Motor Vehicle Act

Section 310.02
Disposition versions

Full text
Revocation of a learner's licence and suspension of driving privileges
310.02(1)Repealed: 2018, c.13, s.2
310.02(2)Repealed: 2018, c.13, s.2
310.02(3)If a novice driver, on demand made by a peace officer under section 320.27 or 320.28 of the Criminal Code (Canada), provides a sample of breath that, on analysis by an approved screening device, produces a result indicating that he or she consumed alcohol in a quantity that the concentration in his or her blood exceeds zero mg of alcohol in 100 ml of blood but is less than 50 mg of alcohol in 100 ml of blood, the peace officer may request the novice driver to surrender his or her learner’s licence.
310.02(4)A peace officer may request a novice driver to surrender his or her learner’s licence if, on demand of the officer made under subsection (3), the novice driver fails or refuses to provide a sample of breath.
310.02(5)Repealed: 2018, c.13, s.2
310.02(5.1)A peace officer may request a novice driver to surrender the driver’s learner’s licence if, upon demand made by the peace officer under subsection 320.27(1) or section 320.28 of the Criminal Code (Canada), the novice driver
(a) fails or refuses to provide a sample of a bodily substance,
(b) provides a sample of a bodily substance that, on analysis by approved drug screening equipment, produces a result indicating the presence of a drug that is prescribed by regulation,
(c) undergoes a standard field sobriety test for drugs or a combination of alcohol and drugs, and the peace officer reasonably believes that the person’s performance on the test meets the criteria prescribed by regulation for a poor performance, or
(d) fails or refuses to submit to a standard field sobriety test for drugs or a combination of alcohol and drugs.
310.02(6)A novice driver whose learner’s licence has been requested under subsection (3), (4) or (5.1) shall surrender the licence to the peace officer requesting it forthwith and, whether or not the novice driver is unable or fails to surrender the licence to the peace officer, the licence is revoked and the novice driver’s driving privilege is suspended for a period of seven days from the time the request is made.
310.02(6.1)Repealed: 2010, c.27, s.2
310.02(7)If an analysis of a sample of a novice driver’s breath is made under subsection (3) by an approved screening device and produces a result indicating the presence of alcohol,
(a) the novice driver has the right to request and be provided with a second analysis as soon as the circumstances permit, and
(b) the peace officer who made the demand shall advise the novice driver of his or her right to a second analysis before the novice driver’s licence is revoked and driving privilege suspended.
310.02(7.1)If a second analysis is requested under paragraph (7)(a), the analysis shall be performed by a different approved screening device than was used in the first analysis.
310.02(7.2)If a novice driver provides a sample of breath for a second analysis, the lower of the first and second analysis results shall govern for the purposes of this section.
310.02(8)Repealed: 2016, c.8, s.13
310.02(9)The revocation of a licence and the suspension of a driving privilege under this section are in addition to and not in substitution for any other proceeding or penalty arising from the same circumstances.
310.02(10)Every peace officer who requests the surrender of a licence from a novice driver under section 310.01 or under this section shall
(a) keep a written record of the revocation and suspension with the name, address and licence number of the novice driver and the date and time of the revocation and suspension,
(b) provide the novice driver with a written statement setting out the time at which the revocation and suspension take effect, the length of the period during which the licence is revoked and privilege suspended and the place where the licence may be recovered upon the termination of the revocation and suspension and acknowledging receipt of the licence that is surrendered,
(c) deliver without delay to the Registrar the following documents:
(i) the novice driver’s driver’s licence, if one has been surrendered;
(ii) a report sworn or solemnly affirmed by the peace officer; and
(d) make available to the Registrar on request the following documents:
(i) a copy of the written statement sworn or solemnly affirmed by the peace officer;
(ii) a copy of the certificate of analysis under section 320.32 of the Criminal Code (Canada);
(iii) in the case of a revocation of a licence and the suspension of a driving privilege relating to the analysis of a sample of breath, information relating to the calibration of the approved screening device or approved instrument, as the case may be, on the basis of which the written statement was provided;
(iv) in the case of a revocation of a licence and the suspension of a driving privilege relating to the analysis of a sample of a bodily substance, information relating to the approved drug screening equipment on the basis of which the written statement was provided; and
(v) in the case of a revocation of a licence and the suspension of a driving privilege relating to a poor performance on a standard field sobriety test for drugs or a combination of alcohol and drugs, information relating to how the performance of the novice driver on the test met the criteria prescribed by regulation for a poor performance on the basis of which the written statement was provided.
310.02(11)If a novice driver’s learner’s licence is revoked and driving privilege is suspended under paragraph 310.01(4)(d), the peace officer shall detain the motor vehicle and the vehicle shall be impounded,
(a) if the analysis of the breath of a driver is made that produces a result indicating that he or she consumed alcohol in a quantity that the concentration in his or her blood is equal to or exceeds 50 mg of alcohol in 100 ml of blood but is not equal to or does not exceed 80 mg of alcohol in 100 ml of blood, for seven days from the time it was detained,
(b) if the analysis of the breath of a driver is made that produces a result indicating that he or she consumed alcohol in a quantity that the concentration in his or her blood is equal to or exceeds 80 mg of alcohol in 100 ml of blood,
(i) if the driver has had no convictions under subsection 320.14(1) or (4) or subsection 320.15(1) of the Criminal Code (Canada) in the ten years preceding the date of the revocation and suspension, for 30 days from the time it was detained, and
(ii) if the driver has had one or more convictions under subsection 320.14(1) or (4) or subsection 320.15(1) of the Criminal Code (Canada) in the ten years preceding the date of the revocation and suspension, for 60 days from the time it was detained.
310.02(11.1)If a novice driver’s learner’s licence is revoked and driving privilege is suspended under subsection (6), the peace officer shall detain the motor vehicle and the vehicle shall be impounded,
(a) if the analysis of the breath of a driver is made that produces a result indicating that he or she consumed alcohol in a quantity that the concentration in his or her blood exceeds zero mg of alcohol in 100 ml of blood but is less than 50 mg of alcohol in 100 ml of blood, for seven days from the time it was detained,
(b) if the analysis of the sample of a bodily substance of a driver is made that produces a result indicating that he or she consumed a drug that is prescribed by regulation in such a quantity that its presence is detected, for seven days from the time it was detained, and
(c) if the driver’s performance on a standard field sobriety test for drugs or a combination of alcohol and drugs meets the criteria prescribed by regulation for a poor performance,
(i) if the driver has had no convictions under subsection 320.14(1) or (4) or subsection 320.15(1) of the Criminal Code (Canada) in the ten years preceding the date of the revocation and suspension, for 30 days from the time it was detained, and
(ii) if the driver has had one or more convictions under subsection 320.14(1) or (4) or subsection 320.15(1) of the Criminal Code (Canada) in the ten years preceding the date of the revocation and suspension, for 60 days from the time it was detained.
310.02(12)Section 310.2 applies to the detention and impoundment of a motor vehicle under subsection (11) or (11.1).
310.02(13)Every person who, without reasonable excuse, fails or refuses to comply with a demand made to the person by a peace officer under this section, commits an offence.
310.02(14)Where an analysis of a sample of a person’s breath has been made for the purposes of section 310.01 or this section and it produces a result indicating the presence of alcohol, the result shall be, in the absence of evidence to the contrary, proof that the person has breached a condition of a learner’s licence referred to in paragraph 84(4)(d) or (5)(c), as the case may be, if
(a) the person was the holder of the learner’s licence when the sample was provided, and
(b) the analysis was made by means of an approved screening device or approved instrument.
310.02(14.1)If an analysis of a sample of a bodily substance of a person has been made for the purposes of subsection (5.1) and it produces a result indicating the presence of a drug that is prescribed by regulation, the result shall be, in the absence of evidence to the contrary, proof that the person has breached a condition of a learner’s licence referred to in paragraph 84(4)(e) or (5)(d), as the case may be, if
(a) the person was the holder of the learner’s licence when the sample was provided, and
(b) the analysis was made by means of approved drug screening equipment.
310.02(15)Subsection (14) or (14.1) shall not be construed by any person, court, tribunal or other body to limit the generality of the nature of proof that a novice driver has breached a condition of a learner’s licence referred to in paragraph 84(4)(d) or (e) or (5)(c) or (d), as the case may be.
310.02(15.1)Within 15 days of the revocation and suspension, a novice driver may apply to the Registrar for a review of the revocation and suspension of his or her licence and driving privilege under subsection (6) by
(a) filing an application for review with the Registrar,
(b) paying the fee prescribed by regulation, and
(c) surrendering his or her licence if it has not been previously surrendered, unless he or she certifies to the Registrar that the licence has been lost or destroyed.
310.02(15.2)The application for review shall be in the form, contain the information and be completed in the manner required by the Registrar.
310.02(15.3)A novice driver may attach to the application for review any evidence that he or she wishes the Registrar to consider, including solemnly affirmed statements.
310.02(15.4)An application for review does not stay a revocation of a person’s driver’s licence and suspension of his or her driving privilege given under subsection (6).
310.02(15.5)In a review under this section, the Registrar shall consider
(a) any relevant sworn or solemnly affirmed statements and any other relevant information,
(b) the report of the peace officer,
(c) a copy of any certificate of analysis under section 320.32 of the Criminal Code (Canada) without proof of the signature and official character of the person appearing to have signed the certificate or that the copy is a true copy,
(d) a copy of the written statement, and
(e) any other relevant documents and information, including reports that have not been sworn or solemnly affirmed, forwarded to the Registrar by a peace officer, including the officer who served the written statement.
310.02(15.6)In the case of the revocation and suspension of a person’s licence and driving privilege relating to the analysis of a sample of breath, the Registrar shall sustain the revocation and suspension if, after considering an application for review under subsection (15.1), the Registrar is satisfied that the person was the driver and that
(a) the person was advised of his or her right to request and be provided with a second analysis by a different approved screening device,
(b) if the person requested a second analysis, the second analysis was provided by the peace officer and was performed with a different approved screening device than was used in the first analysis and the written statement was provided to the person on the basis of the lower analysis result,
(c) the approved screening device produced a result indicating the presence of alcohol,
(d) the results of the analysis are reliable, and
(e) in the case of a revocation and suspension of a person’s licence and driving privilege for failing or refusing to provide a sample of breath on demand of a peace officer made under subsection (3), the person failed or refused to provide a sample of breath.
310.02(15.61)In the case of the revocation and suspension of a person’s licence and driving privilege relating to the analysis of a sample of a bodily substance, the Registrar shall sustain the revocation and suspension if, after considering an application for review under subsection (15.1), the Registrar is satisfied that the person was the driver and that
(a) the approved drug screening equipment produced a result indicating the presence of a drug that is prescribed by regulation,
(b) the results of the analysis are reliable, and
(c) in the case of a revocation and suspension of a person’s licence and driving privilege for the purpose of paragraph (5.1)(a), the person failed or refused to comply with a demand to provide a sample of a bodily substance under subsection 320.27(1) or section 320.28 of the Criminal Code (Canada).
310.02(15.62)In the case of a revocation and suspension of a person’s licence and driving privilege resulting from the person’s poor performance on a standard field sobriety test for drugs or a combination of alcohol and drugs, the Registrar shall sustain the revocation and suspension if, after considering an application for review under subsection (15.1), the Registrar is satisfied that the person was the driver and that
(a) the performance of the person on the standard field sobriety test met the criteria prescribed by regulation for a poor performance, and
(b) in the case of a revocation and suspension of a person’s licence and driving privilege for the purpose of paragraph (5.1)(d), the person failed or refused to comply with a demand to submit to a standard field sobriety test for drugs or a combination of alcohol and drugs under subsection 320.27(1) of the Criminal Code (Canada).
310.02(15.7)In the case of the revocation and suspension of a person’s licence and driving privilege relating to the analysis of a sample of breath, the Registrar shall revoke the revocation and suspension, return any licence surrendered and direct that the fees paid for the application for review be refunded if, after considering an application for review under subsection (15.1), the Registrar is not satisfied that the person was the driver or is satisfied that
(a) the person was not advised of his or her right to request and be provided with a second analysis by a different approved screening device,
(b) if the person requested a second analysis, the second analysis was not provided by the peace officer or was not performed with a different approved screening device than was used in the first analysis or the written statement was not provided to the person on the basis of the lower analysis result,
(c) the approved screening device did not produce a result indicating the presence of alcohol,
(d) the results of the analysis are not reliable, or
(e) in the case of a revocation and suspension of a person’s licence and driving privilege for failing or refusing to provide a sample of breath on demand of a peace officer made under subsection (3), the person did not fail or refuse to provide a sample of breath.
310.02(15.71)In the case of the revocation and suspension of a person’s licence and driving privilege relating to the analysis of a sample of a bodily substance, the Registrar shall revoke the revocation and suspension, return any licence surrendered and direct that the fees paid for the application for review be refunded if, after considering an application for review under subsection (15.1), the Registrar is not satisfied that the person was the driver or is satisfied that
(a) the approved drug screening equipment did not produce a result indicating the presence of a drug that is prescribed by regulation,
(b) the results of the analysis are not reliable, or
(c) in the case of a revocation and suspension of a person’s licence and driving privilege for the purpose of paragraph (5.1)(a), the person did not fail or refuse to comply with a demand to provide a sample of a bodily substance under subsection 320.27(1) or section 320.28 of the Criminal Code (Canada).
310.02(15.72)In the case of a revocation and suspension of a person’s licence and driving privilege resulting from the person’s poor performance on a standard field sobriety test for drugs or a combination of alcohol and drugs, the Registrar shall revoke the revocation and suspension, return any licence surrendered and direct that the fees paid for the application for review be refunded if, after considering an application for review under subsection (15.1), the Registrar is not satisfied that the person was the driver or is satisfied that
(a) the performance of the person on the standard field sobriety test did not meet the criteria prescribed by regulation for a poor performance, or
(b) in the case of a revocation and suspension of a person’s licence and driving privilege for the purpose of paragraph (5.1)(d), the person did not fail or refuse to comply with a demand to submit to a standard field sobriety test for drugs or a combination of alcohol and drugs under subsection 320.27(1) of the Criminal Code (Canada).
310.02(15.8)The Registrar shall consider an application for review within ten days after compliance with subsection (15.1).
310.02(15.9)Despite subsection (15.8), the failure of the Registrar to consider the application within the required time does not affect the jurisdiction of the Registrar to consider the application or to make a decision with respect to it.
310.02(15.91)The decision of the Registrar shall be in writing and a copy of it shall be sent to the person by registered or certified mail within seven days after the date on which the application was considered at his or her last known address as shown on the applicant’s driver’s licence.
310.02(15.92)The Lieutenant-Governor in Council may make regulations prescribing the fees to be paid for a review under this section.
310.02(16)Repealed: 2016, c.8, s.13
1994, c.69, s.6; 2002, c.32, s.21; 2007, c.44, s.18; 2008, c.33, s.8; 2010, c.27, s.2; 2014, c.44, s.10; 2016, c.8, s.13; 2017, c.54, s.13; 2017, c.54, s.43; 2018, c.13, s.2; 2018, c.13, s.7; 2020, c.2, s.16
Revocation of a learner's licence and suspension of driving privileges
310.02(1)Repealed: 2018, c.13, s.2
310.02(2)Repealed: 2018, c.13, s.2
310.02(3)If a novice driver, upon demand made by a peace officer under subsection 320.27(1) or section 320.28 of the Criminal Code (Canada), provides a sample of breath that, on analysis by an approved screening device, produces a result indicating that he or she consumed alcohol in a quantity that the concentration in his or her blood exceeds zero mg of alcohol in 100 ml of blood but is less than 50 mg of alcohol in 100 ml of blood, the peace officer may request the novice driver to surrender his or her learner’s licence.
310.02(4)A peace officer may request a novice driver to surrender his or her learner’s licence if, on demand of the officer made under subsection (3), the novice driver fails or refuses to provide a sample of breath.
310.02(5)Repealed: 2018, c.13, s.2
310.02(5.1)A peace officer may request a novice driver to surrender the driver’s learner’s licence if, upon demand made by the peace officer under subsection 320.27(1) or section 320.28 of the Criminal Code (Canada), the novice driver
(a) fails or refuses to provide a sample of a bodily substance,
(b) provides a sample of a bodily substance that, on analysis by approved drug screening equipment, produces a result indicating the presence of a drug that is prescribed by regulation,
(c) submits to an evaluation conducted by an evaluating officer and the peace officer reasonably believes that the person’s performance on the evaluation meets the criteria prescribed by regulation for a poor performance, or
(d) fails or refuses to submit to an evaluation conducted by an evaluating officer.
310.02(6)A novice driver whose learner’s licence has been requested under subsection (3), (4) or (5.1) shall surrender the licence to the peace officer requesting it forthwith and, whether or not the novice driver is unable or fails to surrender the licence to the peace officer, the licence is revoked and the novice driver’s driving privilege is suspended for a period of seven days from the time the request is made.
310.02(6.1)Repealed: 2010, c.27, s.2
310.02(7)If an analysis of a sample of a novice driver’s breath is made under subsection (3) by an approved screening device and produces a result indicating the presence of alcohol,
(a) the novice driver has the right to request that a second analysis be immediately performed, and
(b) the peace officer who made the demand shall advise the novice driver of his or her right to a second analysis before the novice driver’s licence is revoked and driving privilege suspended.
310.02(7.1)If a second analysis is requested under paragraph (7)(a), the analysis shall be performed by a different approved screening device than was used in the first analysis.
310.02(7.2)If a novice driver provides a sample of breath for a second analysis, the lower of the first and second analysis results shall govern for the purposes of this section.
310.02(8)Repealed: 2016, c.8, s.13
310.02(9)The revocation of a licence and the suspension of a driving privilege under this section are in addition to and not in substitution for any other proceeding or penalty arising from the same circumstances.
310.02(10)Every peace officer who requests the surrender of a licence from a novice driver under section 310.01 or under this section shall
(a) keep a written record of the revocation and suspension with the name, address and licence number of the novice driver and the date and time of the revocation and suspension,
(b) provide the novice driver with a written statement setting out the time at which the revocation and suspension take effect, the length of the period during which the licence is revoked and privilege suspended and the place where the licence may be recovered upon the termination of the revocation and suspension and acknowledging receipt of the licence that is surrendered,
(c) deliver without delay to the Registrar the following documents:
(i) the novice driver’s driver’s licence, if one has been surrendered;
(ii) a report sworn or solemnly affirmed by the peace officer; and
(d) make available to the Registrar on request the following documents:
(i) a copy of the written statement sworn or solemnly affirmed by the peace officer;
(ii) a copy of the certificate of analysis under section 320.32 of the Criminal Code (Canada);
(iii) in the case of a revocation of a licence and the suspension of a driving privilege relating to the analysis of a sample of breath, information relating to the calibration of the approved screening device or approved instrument, as the case may be, on the basis of which the written statement was provided;
(iv) in the case of a revocation of a licence and the suspension of a driving privilege relating to the analysis of a sample of a bodily substance, information relating to the approved drug screening equipment on the basis of which the written statement was provided; and
(v) in the case of a revocation of a licence and the suspension of a driving privilege relating to a poor performance on an evaluation,
(A) a copy of a certificate setting out the qualifications of the evaluating officer, and
(B) information relating to how the performance of the novice driver on the evaluation met the criteria prescribed by regulation for a poor performance on the basis of which the written statement was provided.
310.02(11)If a novice driver’s learner’s licence is revoked and driving privilege is suspended under paragraph 310.01(4)(d), the peace officer shall detain the motor vehicle and the vehicle shall be impounded,
(a) if the analysis of the breath of a driver is made that produces a result indicating that he or she consumed alcohol in a quantity that the concentration in his or her blood is equal to or exceeds 50 mg of alcohol in 100 ml of blood but is not equal to or does not exceed 80 mg of alcohol in 100 ml of blood, for seven days from the time it was detained,
(b) if the analysis of the breath of a driver is made that produces a result indicating that he or she consumed alcohol in a quantity that the concentration in his or her blood is equal to or exceeds 80 mg of alcohol in 100 ml of blood,
(i) if the driver has had no convictions under subsection 320.14(1) or (4) or subsection 320.15(1) of the Criminal Code (Canada) in the ten years preceding the date of the revocation and suspension, for 30 days from the time it was detained, and
(ii) if the driver has had one or more convictions under subsection 320.14(1) or (4) or subsection 320.15(1) of the Criminal Code (Canada) in the ten years preceding the date of the revocation and suspension, for 60 days from the time it was detained.
310.02(11.1)If a novice driver’s learner’s licence is revoked and driving privilege is suspended under subsection (6), the peace officer shall detain the motor vehicle and the vehicle shall be impounded,
(a) if the analysis of the breath of a driver is made that produces a result indicating that he or she consumed alcohol in a quantity that the concentration in his or her blood exceeds zero mg of alcohol in 100 ml of blood but is less than 50 mg of alcohol in 100 ml of blood, for seven days from the time it was detained,
(b) if the analysis of the sample of a bodily substance of a driver is made that produces a result indicating that he or she consumed a drug that is prescribed by regulation in such a quantity that its presence is detected, for seven days from the time it was detained, and
(c) if the driver’s performance on an evaluation conducted by an evaluating officer meets the criteria prescribed by regulation for a poor performance,
(i) if the driver has had no convictions under subsection 320.14(1) or (4) or subsection 320.15(1) of the Criminal Code (Canada) in the ten years preceding the date of the revocation and suspension, for 30 days from the time it was detained, and
(ii) if the driver has had one or more convictions under subsection 320.14(1) or (4) or subsection 320.15(1) of the Criminal Code (Canada) in the ten years preceding the date of the revocation and suspension, for 60 days from the time it was detained.
310.02(12)Section 310.2 applies to the detention and impoundment of a motor vehicle under subsection (11) or (11.1).
310.02(13)Every person who, without reasonable excuse, fails or refuses to comply with a demand made to the person by a peace officer under this section, commits an offence.
310.02(14)Where an analysis of a sample of a person’s breath has been made for the purposes of section 310.01 or this section and it produces a result indicating the presence of alcohol, the result shall be, in the absence of evidence to the contrary, proof that the person has breached a condition of a learner’s licence referred to in paragraph 84(4)(d) or (5)(c), as the case may be, if
(a) the person was the holder of the learner’s licence when the sample was provided, and
(b) the analysis was made by means of an approved screening device or approved instrument.
310.02(14.1)If an analysis of a sample of a bodily substance of a person has been made for the purposes of subsection (5.1) and it produces a result indicating the presence of a drug that is prescribed by regulation, the result shall be, in the absence of evidence to the contrary, proof that the person has breached a condition of a learner’s licence referred to in paragraph 84(4)(e) or (5)(d), as the case may be, if
(a) the person was the holder of the learner’s licence when the sample was provided, and
(b) the analysis was made by means of approved drug screening equipment.
310.02(15)Subsection (14) or (14.1) shall not be construed by any person, court, tribunal or other body to limit the generality of the nature of proof that a novice driver has breached a condition of a learner’s licence referred to in paragraph 84(4)(d) or (e) or (5)(c) or (d), as the case may be.
310.02(15.1)Within 15 days of the revocation and suspension, a novice driver may apply to the Registrar for a review of the revocation and suspension of his or her licence and driving privilege under subsection (6) by
(a) filing an application for review with the Registrar,
(b) paying the fee prescribed by regulation, and
(c) surrendering his or her licence if it has not been previously surrendered, unless he or she certifies to the Registrar that the licence has been lost or destroyed.
310.02(15.2)The application for review shall be in the form, contain the information and be completed in the manner required by the Registrar.
310.02(15.3)A novice driver may attach to the application for review any evidence that he or she wishes the Registrar to consider, including solemnly affirmed statements.
310.02(15.4)An application for review does not stay a revocation of a person’s driver’s licence and suspension of his or her driving privilege given under subsection (6).
310.02(15.5)In a review under this section, the Registrar shall consider
(a) any relevant sworn or solemnly affirmed statements and any other relevant information,
(b) the report of the peace officer,
(c) a copy of any certificate of analysis under section 320.32 of the Criminal Code (Canada) without proof of the signature and official character of the person appearing to have signed the certificate or that the copy is a true copy,
(d) a copy of the written statement, and
(e) any other relevant documents and information, including reports that have not been sworn or solemnly affirmed, forwarded to the Registrar by a peace officer, including the officer who served the written statement.
310.02(15.6)In the case of the revocation and suspension of a person’s licence and driving privilege relating to the analysis of a sample of breath, the Registrar shall sustain the revocation and suspension if, after considering an application for review under subsection (15.1), the Registrar is satisfied that the person was the driver and that
(a) the person was advised of his or her right to request and be provided with a second analysis by a different approved screening device,
(b) if the person requested a second analysis, the second analysis was provided by the peace officer and was performed with a different approved screening device than was used in the first analysis and the written statement was provided to the person on the basis of the lower analysis result,
(c) the approved screening device produced a result indicating the presence of alcohol,
(d) the results of the analysis are reliable, and
(e) in the case of a revocation and suspension of a person’s licence and driving privilege for failing or refusing to provide a sample of breath on demand of a peace officer made under subsection (3), the person failed or refused to provide a sample of breath.
310.02(15.61)In the case of the revocation and suspension of a person’s licence and driving privilege relating to the analysis of a sample of a bodily substance, the Registrar shall sustain the revocation and suspension if, after considering an application for review under subsection (15.1), the Registrar is satisfied that the person was the driver and that
(a) the approved drug screening equipment produced a result indicating the presence of a drug that is prescribed by regulation,
(b) the results of the analysis are reliable, and
(c) in the case of a revocation and suspension of a person’s licence and driving privilege for the purpose of paragraph (5.1)(a), the person failed or refused to comply with a demand to provide a sample of a bodily substance under subsection 320.27(1) or section 320.28 of the Criminal Code (Canada).
310.02(15.62)In the case of the revocation and suspension of a person’s licence and driving privilege resulting from the person’s poor performance on an evaluation, the Registrar shall sustain the revocation and suspension if, after considering an application for review under subsection (15.1), the Registrar is satisfied that the person was the driver and that
(a) the evaluating officer had the required qualifications,
(b) the performance of the person on the evaluation met the criteria prescribed by regulation for a poor performance, and
(c) in the case of a revocation and suspension of a person’s licence and driving privilege for the purpose of paragraph (5.1)(d), the person failed or refused to comply with a demand to submit to an evaluation conducted by an evaluating officer under section 320.28 of the Criminal Code (Canada).
310.02(15.7)In the case of the revocation and suspension of a person’s licence and driving privilege relating to the analysis of a sample of breath, the Registrar shall revoke the revocation and suspension, return any licence surrendered and direct that the fees paid for the application for review be refunded if, after considering an application for review under subsection (15.1), the Registrar is not satisfied that the person was the driver or is satisfied that
(a) the person was not advised of his or her right to request and be provided with a second analysis by a different approved screening device,
(b) if the person requested a second analysis, the second analysis was not provided by the peace officer or was not performed with a different approved screening device than was used in the first analysis or the written statement was not provided to the person on the basis of the lower analysis result,
(c) the approved screening device did not produce a result indicating the presence of alcohol,
(d) the results of the analysis are not reliable, or
(e) in the case of a revocation and suspension of a person’s licence and driving privilege for failing or refusing to provide a sample of breath on demand of a peace officer made under subsection (3), the person did not fail or refuse to provide a sample of breath.
310.02(15.71)In the case of the revocation and suspension of a person’s licence and driving privilege relating to the analysis of a sample of a bodily substance, the Registrar shall revoke the revocation and suspension, return any licence surrendered and direct that the fees paid for the application for review be refunded if, after considering an application for review under subsection (15.1), the Registrar is not satisfied that the person was the driver or is satisfied that
(a) the approved drug screening equipment did not produce a result indicating the presence of a drug that is prescribed by regulation,
(b) the results of the analysis are not reliable, or
(c) in the case of a revocation and suspension of a person’s licence and driving privilege for the purpose of paragraph (5.1)(a), the person did not fail or refuse to comply with a demand to provide a sample of a bodily substance under subsection 320.27(1) or section 320.28 of the Criminal Code (Canada).
310.02(15.72)In the case of the revocation and suspension of a person’s licence and driving privilege resulting from the person’s poor performance on an evaluation, the Registrar shall revoke the revocation and suspension, return any licence surrendered and direct that the fees paid for the application for review be refunded if, after considering an application for review under subsection (15.1), the Registrar is not satisfied that the person was the driver or is satisfied that
(a) the evaluating officer did not have the required qualifications,
(b) the performance of the person on the evaluation did not meet the criteria prescribed by regulation for a poor performance, or
(c) in the case of a revocation and suspension of a person’s licence and driving privilege for the purpose of paragraph (5.1)(d), the person did not fail or refuse to comply with a demand to submit to an evaluation conducted by an evaluating officer under section 320.28 of the Criminal Code (Canada).
310.02(15.8)The Registrar shall consider an application for review within ten days after compliance with subsection (15.1).
310.02(15.9)Despite subsection (15.8), the failure of the Registrar to consider the application within the required time does not affect the jurisdiction of the Registrar to consider the application or to make a decision with respect to it.
310.02(15.91)The decision of the Registrar shall be in writing and a copy of it shall be sent to the person by registered or certified mail within seven days after the date on which the application was considered at his or her last known address as shown on the applicant’s driver’s licence.
310.02(15.92)The Lieutenant-Governor in Council may make regulations prescribing the fees to be paid for a review under this section.
310.02(16)Repealed: 2016, c.8, s.13
1994, c.69, s.6; 2002, c.32, s.21; 2007, c.44, s.18; 2008, c.33, s.8; 2010, c.27, s.2; 2014, c.44, s.10; 2016, c.8, s.13; 2017, c.54, s.13; 2017, c.54, s.43; 2018, c.13, s.2; 2018, c.13, s.7
Breath sample
310.02(1)Repealed: 2018, c.13, s.2
310.02(2)Repealed: 2018, c.13, s.2
310.02(3)If a novice driver, upon demand made by a peace officer under subsection 254(2) of the Criminal Code (Canada), provides a sample of breath that, on analysis by an approved screening device, produces a result indicating that he or she consumed alcohol in a quantity that the concentration in his or her blood exceeds zero mg of alcohol in 100 ml of blood but is less than 50 mg of alcohol in 100 ml of blood, the peace officer may request the novice driver to surrender his or her learner’s licence.
310.02(4)A peace officer may request a novice driver to surrender his or her learner’s licence if, on demand of the officer made under subsection (3), the novice driver fails or refuses to provide a sample of breath.
310.02(5)Repealed: 2018, c.13, s.2
310.02(6)A novice driver whose learner’s licence has been requested under subsection (3) or (4) shall surrender the licence to the peace officer requesting it forthwith and, whether or not the novice driver is unable or fails to surrender the licence to the peace officer, the licence is revoked and the novice driver’s driving privilege is suspended for a period of seven days from the time the request is made.
310.02(6.1)Repealed: 2010, c.27, s.2
310.02(7)If an analysis of a sample of a novice driver’s breath is made under subsection (3) by an approved screening device and produces a result indicating the presence of alcohol,
(a) the novice driver has the right to request that a second analysis be immediately performed, and
(b) the peace officer who made the demand shall advise the novice driver of his or her right to a second analysis before the novice driver’s licence is revoked and driving privilege suspended.
310.02(7.1)If a second analysis is requested under paragraph (7)(a), the analysis shall be performed by a different approved screening device than was used in the first analysis.
310.02(7.2)If a novice driver provides a sample of breath for a second analysis, the lower of the first and second analysis results shall govern for the purposes of this section.
310.02(8)Repealed: 2016, c.8, s.13
310.02(9)The revocation of a licence and the suspension of a driving privilege under this section are in addition to and not in substitution for any other proceeding or penalty arising from the same circumstances.
310.02(10)Every peace officer who requests the surrender of a licence from a novice driver under section 310.01 or under this section shall
(a) keep a written record of the revocation and suspension with the name, address and licence number of the novice driver and the date and time of the revocation and suspension,
(b) provide the novice driver with a written statement setting out the time at which the revocation and suspension take effect, the length of the period during which the licence is revoked and privilege suspended and the place where the licence may be recovered upon the termination of the revocation and suspension and acknowledging receipt of the licence that is surrendered,
(c) deliver without delay to the Registrar the following documents:
(i) the novice driver’s driver’s licence, if one has been surrendered;
(ii) a report sworn or solemnly affirmed by the peace officer; and
(d) make available to the Registrar on request the following documents:
(i) a copy of the written statement sworn or solemnly affirmed by the peace officer;
(ii) a copy of the certificate of analysis under section 258 of the Criminal Code (Canada); and
(iii) in the case of a revocation of a licence and the suspension of a driving privilege relating to the analysis of a sample of breath, information relating to the calibration of the approved screening device or approved instrument, as the case may be, on the basis of which the written statement was provided.
310.02(11)If a novice driver’s learner’s licence is revoked and driving privilege is suspended under paragraph 310.01(4)(d), the peace officer shall detain the motor vehicle and the vehicle shall be impounded,
(a) if the analysis of the breath of a driver produces a result indicating that he or she consumed alcohol in a quantity that the concentration in his or her blood is equal to or exceeds 50 mg of alcohol in 100 ml of blood but does not exceed 80 mg of alcohol in 100 ml of blood, for seven days from the time it was detained, and
(b) if the analysis of the breath of a driver is made that produces a result indicating that he or she consumed alcohol in a quantity that the concentration in his or her blood exceeds 80 mg of alcohol in 100 ml of blood,
(i) in the case of a first offence of driving under the influence of alcohol under the Criminal Code (Canada) in the ten years preceding the date of the revocation and suspension, for 30 days from the time it was detained, and
(ii) in the case of a second or subsequent offence of driving under the influence of alcohol under the Criminal Code (Canada) in the ten years preceding the date of the revocation and suspension, for 60 days from the time it was detained.
310.02(11.1)If a novice driver’s learner’s licence is revoked and driving privilege is suspended under subsection (6) the peace officer shall detain the motor vehicle and the vehicle shall be impounded for seven days from the time it was detained.
310.02(12)Section 310.2 applies to the detention and impoundment of a motor vehicle under subsection (11) or (11.1).
310.02(13)Every person who, without reasonable excuse, fails or refuses to comply with a demand made to the person by a peace officer under this section, commits an offence.
310.02(14)Where an analysis of a sample of a person’s breath has been made for the purposes of section 310.01 or this section and it produces a result indicating the presence of alcohol, the result shall be, in the absence of evidence to the contrary, proof that the person has breached a condition of a learner’s licence referred to in paragraph 84(4)(d) or (5)(c), as the case may be, if
(a) the person was the holder of the learner’s licence when the sample was provided, and
(b) the analysis was made by means of an approved screening device or approved instrument.
310.02(15)Subsection (14) shall not be construed by any person, court, tribunal or other body to limit the generality of the nature of proof that a novice driver has breached a condition of a learner’s licence referred to in paragraph 84(4)(d) or (5)(c), as the case may be.
310.02(15.1)Within 15 days of the revocation and suspension, a novice driver may apply to the Registrar for a review of the revocation and suspension of his or her licence and driving privilege under subsection (6) by
(a) filing an application for review with the Registrar,
(b) paying the fee prescribed by regulation, and
(c) surrendering his or her licence if it has not been previously surrendered, unless he or she certifies to the Registrar that the licence has been lost or destroyed.
310.02(15.2)The application for review shall be in the form, contain the information and be completed in the manner required by the Registrar.
310.02(15.3)A novice driver may attach to the application for review any evidence that he or she wishes the Registrar to consider, including solemnly affirmed statements.
310.02(15.4)An application for review does not stay a revocation of a person’s driver’s licence and suspension of his or her driving privilege given under subsection (6).
310.02(15.5)In a review under this section, the Registrar shall consider
(a) any relevant sworn or solemnly affirmed statements and any other relevant information,
(b) the report of the peace officer,
(c) a copy of any certificate of analysis under section 258 of the Criminal Code (Canada) without proof of the signature and official character of the person appearing to have signed the certificate or that the copy is a true copy,
(d) a copy of the written statement, and
(e) any other relevant documents and information, including reports that have not been sworn or solemnly affirmed, forwarded to the Registrar by a peace officer, including the officer who served the written statement.
310.02(15.6)The Registrar shall sustain the revocation and suspension of a person’s licence and driving privilege if, after considering an application for review under subsection (15.1), the Registrar is satisfied that the person was the driver and that
(a) the person was advised of his or her right to request and be provided with a second analysis by a different approved screening device,
(b) if the person requested a second analysis, the second analysis was provided by the peace officer and was performed with a different approved screening device than was used in the first analysis and the written statement was provided to the person on the basis of the lower analysis result,
(c) the approved screening device produced a result indicating the presence of alcohol,
(d) the results of the analysis are reliable, and
(e) in the case of a revocation and suspension of a person’s licence and driving privilege for failing or refusing to provide a sample of breath on demand of a peace officer made under subsection (3), the person failed or refused to provide a sample of breath.
310.02(15.7)The Registrar shall revoke the revocation and suspension of a person’s licence and driving privilege, return any licence surrendered and direct that the fees paid for the application for review be refunded if, after considering an application for review under subsection (15.1), the Registrar is not satisfied that the person was the driver or is satisfied that
(a) the person was not advised of his or her right to request and be provided with a second analysis by a different approved screening device,
(b) if the person requested a second analysis, the second analysis was not provided by the peace officer or was not performed with a different approved screening device than was used in the first analysis or the written statement was not provided to the person on the basis of the lower analysis result,
(c) the approved screening device did not produce a result indicating the presence of alcohol,
(d) the results of the analysis are not reliable, or
(e) in the case of a revocation and suspension of a person’s licence and driving privilege for failing or refusing to provide a sample of breath on demand of a peace officer made under subsection (3), the person did not fail or refuse to provide a sample of breath.
310.02(15.8)The Registrar shall consider an application for review within ten days after compliance with subsection (15.1).
310.02(15.9)Despite subsection (15.8), the failure of the Registrar to consider the application within the required time does not affect the jurisdiction of the Registrar to consider the application or to make a decision with respect to it.
310.02(15.91)The decision of the Registrar shall be in writing and a copy of it shall be sent to the person by registered or certified mail within seven days after the date on which the application was considered at his or her last known address as shown on the applicant’s driver’s licence.
310.02(15.92)The Lieutenant-Governor in Council may make regulations prescribing the fees to be paid for a review under this section.
310.02(16)Repealed: 2016, c.8, s.13
1994, c.69, s.6; 2002, c.32, s.21; 2007, c.44, s.18; 2008, c.33, s.8; 2010, c.27, s.2; 2014, c.44, s.10; 2016, c.8, s.13; 2018, c.13, s.2
Breath sample
310.02(1)In this section, “qualified technician” means a qualified technician as defined in subsection 254(1) of the Criminal Code (Canada).
310.02(2)Subsections (3) and (4) apply and subsection (5) does not apply if a peace officer making a demand of a novice driver uses one screening device for the purposes of section 310.01 and another screening device for the purposes of this section, and subsection (5) applies and subsections (3) and (4) do not apply if the peace officer uses one screening device for the purposes of both section 310.01 and this section.
310.02(3)If a novice driver, upon demand made by a peace officer under subsection 254(2) of the Criminal Code (Canada), provides a sample of breath that, on analysis as described in subsection 310.01(1), registers “Pass” but the peace officer reasonably suspects that the novice driver has alcohol in his or her body, the peace officer may, for the purposes of determining compliance with paragraph 84(4)(d) or (5)(c), demand that the novice driver provide within a reasonable time such further sample of breath as in the opinion of the peace officer or qualified technician is necessary to enable a proper analysis of the breath to be made by means of an approved screening device or approved instrument and, if necessary, to accompany the peace officer for the purpose of enabling such a sample of breath to be taken.
310.02(4)A peace officer may request a novice driver to surrender his or her learner’s licence if, on demand of the officer made under subsection (3), the novice driver fails or refuses to provide a sample of breath or provides a sample of breath that, on analysis by an approved screening device or approved instrument, produces a result indicating the presence of alcohol.
310.02(5)A peace officer may request a novice driver to surrender the driver’s learner’s licence if, upon demand made by the peace officer under subsection 254(2) of the Criminal Code (Canada), the novice driver
(a) fails or refuses to provide a sample of breath, or
(b) provides a sample of breath that, on analysis, produces a result indicating the presence of alcohol.
310.02(6)A novice driver whose learner’s licence has been requested under subsection (4) or (5) shall surrender the licence to the peace officer requesting it forthwith and, whether or not the novice driver is unable or fails to surrender the licence to the peace officer, the licence is revoked and the novice driver’s driving privilege is suspended for a period of seven days from the time the request is made.
310.02(6.1)Repealed: 2010, c.27, s.2
310.02(7)If an analysis of the breath of a novice driver is made under subsection (3), (4) or (5) and produces a result indicating the presence of alcohol
(a) the novice driver has the right to require a second analysis to be immediately performed, and
(b) the peace officer who made the demand shall advise the novice driver of his or her right to a second analysis before the novice driver’s licence is revoked and driving privilege suspended.
310.02(7.1)If a second analysis is requested under this section, the second analysis shall be performed with a different approved screening device or approved instrument, as the case may be, than was used in the first analysis.
310.02(7.2)If a novice driver provides a sample of breath for a second analysis, the lower of the first and second analysis results shall govern for the purposes of this section.
310.02(8)Repealed: 2016, c.8, s.13
310.02(9)The revocation of a licence and the suspension of a driving privilege under this section are in addition to and not in substitution for any other proceeding or penalty arising from the same circumstances.
310.02(10)Every peace officer who requests the surrender of a licence from a novice driver under section 310.01 or under this section shall
(a) keep a written record of the revocation and suspension with the name, address and licence number of the novice driver and the date and time of the revocation and suspension,
(b) provide the novice driver with a written statement setting out the time at which the revocation and suspension take effect, the length of the period during which the licence is revoked and privilege suspended and the place where the licence may be recovered upon the termination of the revocation and suspension and acknowledging receipt of the licence that is surrendered,
(c) deliver without delay to the Registrar the following documents:
(i) the novice driver’s driver’s licence, if one has been surrendered;
(ii) a report sworn or solemnly affirmed by the peace officer; and
(d) make available to the Registrar on request the following documents:
(i) a copy of the written statement sworn or solemnly affirmed by the peace officer;
(ii) a copy of the certificate of analysis under section 258 of the Criminal Code (Canada); and
(iii) in the case of a revocation of a licence and the suspension of a driving privilege relating to the analysis of a sample of breath, information relating to the calibration of the approved screening device or approved instrument, as the case may be, on the basis of which the written statement was provided.
310.02(11)If a person’s licence is revoked and driving privilege is suspended under subsection (6), the peace officer shall detain the motor vehicle and the vehicle shall be impounded
(a) if the analysis of the breath of a driver produces a result indicating that he or she consumed alcohol in a quantity that the concentration in his or her blood exceeds zero mg of alcohol in 100 ml of blood but does not exceed 80 mg of alcohol in 100 ml of blood, for seven days from the time it was detained, and
(b) if the analysis of the breath of a driver is made that produces a result indicating that he or she consumed alcohol in a quantity that the concentration in his or her blood exceeds 80 mg of alcohol in 100 ml of blood,
(i) in the case of a first offence of driving under the influence of alcohol under the Criminal Code (Canada) in the ten years preceding the date of the revocation and suspension, for 30 days from the time it was detained, and
(ii) in the case of a second or subsequent offence of driving under the influence of alcohol under the Criminal Code (Canada) in the ten years preceding the date of the revocation and suspension, for 60 days from the time it was detained.
310.02(12)Section 310.2 applies to the detention and impoundment of a motor vehicle under subsection (11).
310.02(13)Every person who, without reasonable excuse, fails or refuses to comply with a demand made to the person by a peace officer under this section, commits an offence.
310.02(14)Where an analysis of a sample of a person’s breath has been made for the purposes of section 310.01 or this section and it produces a result indicating the presence of alcohol, the result shall be, in the absence of evidence to the contrary, proof that the person has breached a condition of a learner’s licence referred to in paragraph 84(4)(d) or (5)(c), as the case may be, if
(a) the person was the holder of the learner’s licence when the sample was provided, and
(b) the analysis was made by means of an approved screening device or approved instrument.
310.02(15)Subsection (14) shall not be construed by any person, court, tribunal or other body to limit the generality of the nature of proof that a novice driver has breached a condition of a learner’s licence referred to in paragraph 84(4)(d) or (5)(c), as the case may be.
310.02(15.1)Within 15 days of the revocation and suspension, a novice driver may apply to the Registrar for a review of the revocation and suspension of his or her licence and driving privilege under subsection (6) by
(a) filing an application for review with the Registrar,
(b) paying the fee prescribed by regulation, and
(c) surrendering his or her licence if it has not been previously surrendered, unless he or she certifies to the Registrar that the licence has been lost or destroyed.
310.02(15.2)The application for review shall be in the form, contain the information and be completed in the manner required by the Registrar.
310.02(15.3)A novice driver may attach to the application for review any evidence that he or she wishes the Registrar to consider, including solemnly affirmed statements.
310.02(15.4)An application for review does not stay a revocation of a person’s driver’s licence and suspension of his or her driving privilege given under subsection (6).
310.02(15.5)In a review under this section, the Registrar shall consider
(a) any relevant sworn or solemnly affirmed statements and any other relevant information,
(b) the report of the peace officer,
(c) a copy of any certificate of analysis under section 258 of the Criminal Code (Canada) without proof of the signature and official character of the person appearing to have signed the certificate or that the copy is a true copy,
(d) a copy of the written statement, and
(e) any other relevant documents and information, including reports that have not been sworn or solemnly affirmed, forwarded to the Registrar by a peace officer, including the officer who served the written statement.
310.02(15.6)The Registrar shall sustain the revocation and suspension of a person’s licence and driving privilege if, after considering an application for review under subsection (15.1), the Registrar is satisfied that the person was the driver and that
(a) the person was advised of his or her right to request and be provided with a second analysis by a different approved screening device or approved instrument, as the case may be,
(b) if the person requested a second analysis, the second analysis was provided by the peace officer and was performed with a different approved screening device or approved instrument, as the case may be, than was used in the first analysis and the written statement was provided to the person on the basis of the lower analysis result,
(c) the approved screening device or approved instrument, as the case may be, produced a result indicating the presence of alcohol,
(d) the results of the analysis are reliable, and
(e) in the case of a revocation and suspension of a person’s licence and driving privilege for the purpose of paragraph (5)(a), the person failed or refused to comply with a demand to provide a sample of breath or blood under section 254 of the Criminal Code (Canada).
310.02(15.7)The Registrar shall revoke the revocation and suspension of a person’s licence and driving privilege, return any licence surrendered and direct that the fees paid for the application for review be refunded if, after considering an application for review under subsection (15.1), the Registrar is not satisfied that the person was the driver or is satisfied that
(a) the person was not advised of his or her right to request and be provided with a second analysis by a different approved screening device or approved instrument, as the case may be,
(b) if the person requested a second analysis, the second analysis was not provided by the peace officer or was not performed with a different approved screening device or approved instrument, as the case may be, than was used in the first analysis or the written statement was not provided to the person on the basis of the lower analysis result,
(c) the approved screening device or approved instrument, as the case may be, did not produce a result indicating the presence of alcohol,
(d) the results of the analysis are not reliable, or
(e) in the case of a revocation and suspension of a person’s licence and driving privilege for the purpose of paragraph (5)(a), the person did not fail or refuse to comply with a demand to provide a sample of breath or blood under section 254 of the Criminal Code (Canada).
310.02(15.8)The Registrar shall consider an application for review within ten days after compliance with subsection (15.1).
310.02(15.9)Despite subsection (15.8), the failure of the Registrar to consider the application within the required time does not affect the jurisdiction of the Registrar to consider the application or to make a decision with respect to it.
310.02(15.91)The decision of the Registrar shall be in writing and a copy of it shall be sent to the person by registered or certified mail within seven days after the date on which the application was considered at his or her last known address as shown on the applicant’s driver’s licence.
310.02(15.92)The Lieutenant-Governor in Council may make regulations prescribing the fees to be paid for a review under this section.
310.02(16)Repealed: 2016, c.8, s.13
1994, c.69, s.6; 2002, c.32, s.21; 2007, c.44, s.18; 2008, c.33, s.8; 2010, c.27, s.2; 2014, c.44, s.10; 2016, c.8, s.13
Breath sample
310.02(1)In this section
“provincially approved screening device” means a device prescribed by regulation for the purposes of this section;(appareil de détection approuvé par la province)
“qualified technician” means a qualified technician as defined in subsection 254(1) of the Criminal Code (Canada).(technicien qualifié)
310.02(2)Subsections (3) and (4) apply and subsection (5) does not apply if a peace officer making a demand of a novice driver uses one screening device for the purposes of section 310.01 and another screening device for the purposes of this section, and subsection (5) applies and subsections (3) and (4) do not apply if the peace officer uses one screening device for the purposes of both section 310.01 and this section.
310.02(3)If a novice driver, upon demand made by a peace officer under subsection 254(2) of the Criminal Code (Canada), provides a sample of breath that, on analysis as described in subsection 310.01(1), registers “Pass” but the peace officer reasonably suspects that the novice driver has alcohol in his or her body, the peace officer may, for the purposes of determining compliance with paragraph 84(4)(d) or (5)(c), demand that the novice driver provide within a reasonable time such further sample of breath as in the opinion of the peace officer or qualified technician is necessary to enable a proper analysis of the breath to be made by means of a provincially approved screening device and, if necessary, to accompany the peace officer for the purpose of enabling such a sample of breath to be taken.
310.02(4)A peace officer may request a novice driver to surrender the driver’s learner’s licence if, upon demand of the officer made under subsection (3), the novice driver fails or refuses to provide a sample of breath or provides a sample of breath that, on analysis by a provincially approved screening device, produces a result indicating, in the manner prescribed by regulation, the presence of alcohol.
310.02(5)A peace officer may request a novice driver to surrender the driver’s learner’s licence if, upon demand made by the peace officer under subsection 254(2) of the Criminal Code (Canada), the novice driver
(a) fails or refuses to provide a sample of breath, or
(b) provides a sample of breath that, on analysis, produces a result indicating, in the manner prescribed by regulation, the presence of alcohol.
310.02(6)A novice driver whose learner’s licence has been requested under subsection (4) or (5) shall surrender the licence to the peace officer requesting it forthwith and, whether or not the novice driver is unable or fails to surrender the licence to the peace officer, the licence is revoked and the novice driver’s driving privilege is suspended for a period of seven days from the time the request is made.
310.02(6.1)Repealed: 2010, c.27, s.2
310.02(7)If an analysis of the breath of a novice driver is made under subsection (3) or (5) and produces a result indicating, in the manner prescribed by regulation, the presence of alcohol, the novice driver may require a further analysis to be made by means of a provincially approved screening device, in which case the result obtained on the second analysis governs and any revocation and suspension resulting from an analysis under subsection (3) or (5) continues or terminates accordingly.
310.02(8)If an analysis of the breath of a novice driver is made under subsection (3) or (5) and produces a test result indicating, in the manner prescribed by regulation, the presence of alcohol, the peace officer who made the demand for the sample of breath shall advise the novice driver of the right under subsection (7) to a further analysis.
310.02(9)The revocation of a licence and the suspension of a driving privilege under this section are in addition to and not in substitution for any other proceeding or penalty arising from the same circumstances.
310.02(10)Every peace officer who requests the surrender of a licence from a novice driver under section 310.01 or under this section shall
(a) keep a written record of the revocation and suspension with the name, address and licence number of the novice driver and the date and time of the revocation and suspension,
(b) provide the novice driver with a written statement setting out the time at which the revocation and suspension take effect, the length of the period during which the licence is revoked and privilege suspended and the place where the licence may be recovered upon the termination of the revocation and suspension and acknowledging receipt of the licence that is surrendered, and
(c) forward to the Registrar forthwith a written report setting out the name, address and licence number of the novice driver and such particulars respecting the taking of the sample of breath and the conduct and results of the analysis as the Registrar may require in relation to the matter.
310.02(11)If the motor vehicle driven by a novice driver whose licence is revoked and whose driving privilege is suspended under this section is in a location from which, in the opinion of a peace officer, it should be removed and there is no person easily available who may lawfully remove the vehicle with the consent of the novice driver, the peace officer may remove and store the vehicle or cause it to be removed and stored and shall notify the novice driver of its location.
310.02(12)The costs and charges incurred in moving and storing a vehicle under subsection (11) shall be paid, before the vehicle is released, by the person to whom the vehicle is released.
310.02(13)Every person who, without reasonable excuse, fails or refuses to comply with a demand made to the person by a peace officer under this section, commits an offence.
310.02(14)Where an analysis of a sample of a person’s breath has been made for the purposes of section 310.01 or this section and it produces a result indicating the presence of alcohol, the result shall be, in the absence of evidence to the contrary, proof that the person has breached a condition of a learner’s licence referred to in paragraph 84(4)(d) or (5)(c), as the case may be, if
(a) the person was the holder of the learner’s licence when the sample was provided, and
(b) the analysis was made by means of any device prescribed by regulation for the purposes of this subsection, in the manner prescribed by regulation.
310.02(15)Subsection (14) shall not be construed by any person, court, tribunal or other body to limit the generality of the nature of proof that a novice driver has breached a condition of a learner’s licence referred to in paragraph 84(4)(d) or (5)(c), as the case may be.
310.02(16)The Lieutenant-Governor in Council may make regulations
(a) prescribing devices for the purposes of the definition “provincially approved screening device” in subsection (1);
(b) prescribing the manner in which the analysis results produced by provincially approved screening devices or other screening devices may indicate the presence of alcohol in samples of breath;
(c) prescribing devices for the purposes of subsection (14).
1994, c.69, s.6; 2002, c.32, s.21; 2007, c.44, s.18; 2008, c.33, s.8; 2010, c.27, s.2; 2014, c.44, s.10
Breath sample
310.02(1)In this section
“provincially approved screening device” means a device prescribed by regulation for the purposes of this section;
“qualified technician” means a qualified technician as defined in subsection 254(1) of the Criminal Code (Canada).
310.02(2)Subsections (3) and (4) apply and subsection (5) does not apply if a peace officer making a demand of a novice driver uses one screening device for the purposes of section 310.01 and another screening device for the purposes of this section, and subsection (5) applies and subsections (3) and (4) do not apply if the peace officer uses one screening device for the purposes of both section 310.01 and this section.
310.02(3)If a novice driver, upon demand made by a peace officer under subsection 254(2) of the Criminal Code (Canada), provides a sample of breath that, on analysis as described in subsection 310.01(1), registers “Pass” but the peace officer reasonably suspects that the novice driver has alcohol in his or her body, the peace officer may, for the purposes of determining compliance with paragraph 84(4)(d) or (5)(c), demand that the novice driver provide within a reasonable time such further sample of breath as in the opinion of the peace officer or qualified technician is necessary to enable a proper analysis of the breath to be made by means of a provincially approved screening device and, if necessary, to accompany the peace officer for the purpose of enabling such a sample of breath to be taken.
310.02(4)A peace officer may request a novice driver to surrender the driver’s learner’s licence if, upon demand of the officer made under subsection (3), the novice driver fails or refuses to provide a sample of breath or provides a sample of breath that, on analysis by a provincially approved screening device, produces a result indicating, in the manner prescribed by regulation, the presence of alcohol.
310.02(5)A peace officer may request a novice driver to surrender the driver’s learner’s licence if, upon demand made by the peace officer under subsection 254(2) of the Criminal Code (Canada), the novice driver
(a) fails or refuses to provide a sample of breath, or
(b) provides a sample of breath that, on analysis, produces a result indicating, in the manner prescribed by regulation, the presence of alcohol.
310.02(6)A novice driver whose learner’s licence has been requested under subsection (4) or (5) shall surrender the licence to the peace officer requesting it forthwith and, whether or not the novice driver is unable or fails to surrender the licence to the peace officer, the licence is revoked and the novice driver’s driving privilege is suspended for a period of seven days from the time the request is made.
310.02(6.1)Repealed: 2010, c.27, s.2
310.02(7)If an analysis of the breath of a novice driver is made under subsection (3) or (5) and produces a result indicating, in the manner prescribed by regulation, the presence of alcohol, the novice driver may require a further analysis to be made by means of a provincially approved screening device, in which case the result obtained on the second analysis governs and any revocation and suspension resulting from an analysis under subsection (3) or (5) continues or terminates accordingly.
310.02(8)If an analysis of the breath of a novice driver is made under subsection (3) or (5) and produces a test result indicating, in the manner prescribed by regulation, the presence of alcohol, the peace officer who made the demand for the sample of breath shall advise the novice driver of the right under subsection (7) to a further analysis.
310.02(9)The revocation of a licence and the suspension of a driving privilege under this section are in addition to and not in substitution for any other proceeding or penalty arising from the same circumstances.
310.02(10)Every peace officer who requests the surrender of a licence from a novice driver under section 310.01 or under this section shall
(a) keep a written record of the revocation and suspension with the name, address and licence number of the novice driver and the date and time of the revocation and suspension,
(b) provide the novice driver with a written statement setting out the time at which the revocation and suspension take effect, the length of the period during which the licence is revoked and privilege suspended and the place where the licence may be recovered upon the termination of the revocation and suspension and acknowledging receipt of the licence that is surrendered, and
(c) forward to the Registrar forthwith a written report setting out the name, address and licence number of the novice driver and such particulars respecting the taking of the sample of breath and the conduct and results of the analysis as the Registrar may require in relation to the matter.
310.02(11)If the motor vehicle driven by a novice driver whose licence is revoked and whose driving privilege is suspended under this section is in a location from which, in the opinion of a peace officer, it should be removed and there is no person easily available who may lawfully remove the vehicle with the consent of the novice driver, the peace officer may remove and store the vehicle or cause it to be removed and stored and shall notify the novice driver of its location.
310.02(12)The costs and charges incurred in moving and storing a vehicle under subsection (11) shall be paid, before the vehicle is released, by the person to whom the vehicle is released.
310.02(13)Every person who, without reasonable excuse, fails or refuses to comply with a demand made to the person by a peace officer under this section, commits an offence.
310.02(14)Where an analysis of a sample of a person’s breath has been made for the purposes of section 310.01 or this section and it produces a result indicating the presence of alcohol, the result shall be, in the absence of evidence to the contrary, proof that the person has breached a condition of a learner’s licence referred to in paragraph 84(4)(d) or (5)(c), as the case may be, if
(a) the person was the holder of the learner’s licence when the sample was provided, and
(b) the analysis was made by means of any device prescribed by regulation for the purposes of this subsection, in the manner prescribed by regulation.
310.02(15)Subsection (14) shall not be construed by any person, court, tribunal or other body to limit the generality of the nature of proof that a novice driver has breached a condition of a learner’s licence referred to in paragraph 84(4)(d) or (5)(c), as the case may be.
310.02(16)The Lieutenant-Governor in Council may make regulations
(a) prescribing devices for the purposes of the definition “provincially approved screening device” in subsection (1);
(b) prescribing the manner in which the analysis results produced by provincially approved screening devices or other screening devices may indicate the presence of alcohol in samples of breath;
(c) prescribing devices for the purposes of subsection (14).
1994, c.69, s.6; 2002, c.32, s.21; 2007, c.44, s.18; 2008, c.33, s.8; 2010, c.27, s.2; 2014, c.44, s.10
Breath sample
310.02(1)In this section
“provincially approved screening device” means a device prescribed by regulation for the purposes of this section;
“qualified technician” means a qualified technician as defined in subsection 254(1) of the Criminal Code (Canada).
310.02(2)Subsections (3) and (4) apply and subsection (5) does not apply if a peace officer making a demand of a novice driver uses one screening device for the purposes of section 310.01 and another screening device for the purposes of this section, and subsection (5) applies and subsections (3) and (4) do not apply if the peace officer uses one screening device for the purposes of both section 310.01 and this section.
310.02(3)If a novice driver, upon demand made by a peace officer under subsection 254(2) of the Criminal Code (Canada), provides a sample of breath that, on analysis as described in subsection 310.01(1), registers “Pass” but the peace officer reasonably suspects that the novice driver has alcohol in his or her body, the peace officer may, for the purposes of determining compliance with paragraph 84(4)(d) or (5)(c), demand that the novice driver provide within a reasonable time such further sample of breath as in the opinion of the peace officer or qualified technician is necessary to enable a proper analysis of the breath to be made by means of a provincially approved screening device and, if necessary, to accompany the peace officer for the purpose of enabling such a sample of breath to be taken.
310.02(4)A peace officer may request a novice driver to surrender the driver’s learner’s licence if, upon demand of the officer made under subsection (3), the novice driver fails or refuses to provide a sample of breath or provides a sample of breath that, on analysis by a provincially approved screening device, produces a result indicating, in the manner prescribed by regulation, the presence of alcohol.
310.02(5)A peace officer may request a novice driver to surrender the driver’s learner’s licence if, upon demand made by the peace officer under subsection 254(2) of the Criminal Code (Canada), the novice driver
(a) fails or refuses to provide a sample of breath, or
(b) provides a sample of breath that, on analysis, produces a result indicating, in the manner prescribed by regulation, the presence of alcohol.
310.02(6)A novice driver whose learner’s licence has been requested under subsection (4) or (5) shall surrender the licence to the peace officer requesting it forthwith and, whether or not the novice driver is unable or fails to surrender the licence to the peace officer, the licence is revoked and the novice driver’s driving privilege is suspended for a period of seven days from the time the request is made.
310.02(6.1)Repealed: 2010, c.27, s.2
310.02(7)If an analysis of the breath of a novice driver is made under subsection (3) or (5) and produces a result indicating, in the manner prescribed by regulation, the presence of alcohol, the novice driver may require a further analysis to be made by means of a provincially approved screening device, in which case the result obtained on the second analysis governs and any revocation and suspension resulting from an analysis under subsection (3) or (5) continues or terminates accordingly.
310.02(8)If an analysis of the breath of a novice driver is made under subsection (3) or (5) and produces a test result indicating, in the manner prescribed by regulation, the presence of alcohol, the peace officer who made the demand for the sample of breath shall advise the novice driver of the right under subsection (7) to a further analysis.
310.02(9)The revocation of a licence and the suspension of a driving privilege under this section are in addition to and not in substitution for any other proceeding or penalty arising from the same circumstances.
310.02(10)Every peace officer who requests the surrender of a licence from a novice driver under section 310.01 or under this section shall
(a) keep a written record of the revocation and suspension with the name, address and licence number of the novice driver and the date and time of the revocation and suspension,
(b) provide the novice driver with a written statement setting out the time at which the revocation and suspension take effect, the length of the period during which the licence is revoked and privilege suspended and the place where the licence may be recovered upon the termination of the revocation and suspension and acknowledging receipt of the licence that is surrendered, and
(c) forward to the Registrar forthwith a written report setting out the name, address and licence number of the novice driver and such particulars respecting the taking of the sample of breath and the conduct and results of the analysis as the Registrar may require in relation to the matter.
310.02(11)If the motor vehicle driven by a novice driver whose licence is revoked and whose driving privilege is suspended under this section is in a location from which, in the opinion of a peace officer, it should be removed and there is no person easily available who may lawfully remove the vehicle with the consent of the novice driver, the peace officer may remove and store the vehicle or cause it to be removed and stored and shall notify the novice driver of its location.
310.02(12)The costs and charges incurred in moving and storing a vehicle under subsection (11) shall be paid, before the vehicle is released, by the person to whom the vehicle is released.
310.02(13)Every person who, without reasonable excuse, fails or refuses to comply with a demand made to the person by a peace officer under this section, commits an offence.
310.02(14)Where an analysis of a sample of a person’s breath has been made for the purposes of section 310.01 or this section and it produces a result indicating the presence of alcohol, the result shall be, in the absence of evidence to the contrary, proof that the person has breached a condition of a learner’s licence referred to in paragraph 84(4)(d) or (5)(c), as the case may be, if
(a) the person was the holder of the learner’s licence when the sample was provided, and
(b) the analysis was made by means of any device prescribed by regulation for the purposes of this subsection, in the manner prescribed by regulation.
310.02(15)Subsection (14) shall not be construed by any person, court, tribunal or other body to limit the generality of the nature of proof that a novice driver has breached a condition of a learner’s licence referred to in paragraph 84(4)(d) or (5)(c), as the case may be.
310.02(16)The Lieutenant-Governor in Council may make regulations
(a) prescribing devices for the purposes of the definition “provincially approved screening device” in subsection (1);
(b) prescribing the manner in which the analysis results produced by provincially approved screening devices or other screening devices may indicate the presence of alcohol in samples of breath;
(c) prescribing devices for the purposes of subsection (14).
1994, c.69, s.6; 2002, c.32, s.21; 2007, c.44, s.18; 2008, c.33, s.8; 2010, c.27, s.2
Breath sample
310.02(1)In this section
“provincially approved screening device” means a device prescribed by regulation for the purposes of this section;
“qualified technician” means a qualified technician as defined in subsection 254(1) of the Criminal Code (Canada).
310.02(2)Subsections (3) and (4) apply and subsection (5) does not apply if a peace officer making a demand of a novice driver uses one screening device for the purposes of section 310.01 and another screening device for the purposes of this section, and subsection (5) applies and subsections (3) and (4) do not apply if the peace officer uses one screening device for the purposes of both section 310.01 and this section.
310.02(3)If a novice driver, upon demand made by a peace officer under subsection 254(2) of the Criminal Code (Canada), provides a sample of breath that, on analysis as described in subsection 310.01(1), registers “Pass” but the peace officer reasonably suspects that the novice driver has alcohol in his or her body, the peace officer may, for the purposes of determining compliance with paragraph 84(4)(d) or (5)(c), demand that the novice driver provide within a reasonable time such further sample of breath as in the opinion of the peace officer or qualified technician is necessary to enable a proper analysis of the breath to be made by means of a provincially approved screening device and, if necessary, to accompany the peace officer for the purpose of enabling such a sample of breath to be taken.
310.02(4)A peace officer may request a novice driver to surrender the driver’s learner’s licence if, upon demand of the officer made under subsection (3), the novice driver fails or refuses to provide a sample of breath or provides a sample of breath that, on analysis by a provincially approved screening device, produces a result indicating, in the manner prescribed by regulation, the presence of alcohol.
310.02(5)A peace officer may request a novice driver to surrender the driver’s learner’s licence if, upon demand made by the peace officer under subsection 254(2) of the Criminal Code (Canada), the novice driver
(a) fails or refuses to provide a sample of breath, or
(b) provides a sample of breath that, on analysis, produces a result indicating, in the manner prescribed by regulation, the presence of alcohol.
310.02(6)A novice driver whose learner’s licence has been requested under subsection (4) or (5) shall surrender the licence to the peace officer requesting it forthwith and, whether or not the novice driver is unable or fails to surrender the licence to the peace officer, the licence is revoked and the novice driver’s driving privilege is suspended for a period of twenty-four hours from the time the request is made.
310.02(6.1)The licence suspension under this section runs concurrently with a suspension, if any, under section 310.04.
310.02(7)If an analysis of the breath of a novice driver is made under subsection (3) or (5) and produces a result indicating, in the manner prescribed by regulation, the presence of alcohol, the novice driver may require a further analysis to be made by means of a provincially approved screening device, in which case the result obtained on the second analysis governs and any revocation and suspension resulting from an analysis under subsection (3) or (5) continues or terminates accordingly.
310.02(8)If an analysis of the breath of a novice driver is made under subsection (3) or (5) and produces a test result indicating, in the manner prescribed by regulation, the presence of alcohol, the peace officer who made the demand for the sample of breath shall advise the novice driver of the right under subsection (7) to a further analysis.
310.02(9)The revocation of a licence and the suspension of a driving privilege under this section are in addition to and not in substitution for any other proceeding or penalty arising from the same circumstances.
310.02(10)Every peace officer who requests the surrender of a licence from a novice driver under section 310.01 or under this section shall
(a) keep a written record of the revocation and suspension with the name, address and licence number of the novice driver and the date and time of the revocation and suspension,
(b) provide the novice driver with a written statement setting out the time at which the revocation and suspension take effect, the length of the period during which the licence is revoked and privilege suspended and the place where the licence may be recovered upon the termination of the revocation and suspension and acknowledging receipt of the licence that is surrendered, and
(c) forward to the Registrar forthwith a written report setting out the name, address and licence number of the novice driver and such particulars respecting the taking of the sample of breath and the conduct and results of the analysis as the Registrar may require in relation to the matter.
310.02(11)If the motor vehicle driven by a novice driver whose licence is revoked and whose driving privilege is suspended under this section is in a location from which, in the opinion of a peace officer, it should be removed and there is no person easily available who may lawfully remove the vehicle with the consent of the novice driver, the peace officer may remove and store the vehicle or cause it to be removed and stored and shall notify the novice driver of its location.
310.02(12)The costs and charges incurred in moving and storing a vehicle under subsection (11) shall be paid, before the vehicle is released, by the person to whom the vehicle is released.
310.02(13)Every person who, without reasonable excuse, fails or refuses to comply with a demand made to the person by a peace officer under this section, commits an offence.
310.02(14)Where an analysis of a sample of a person’s breath has been made for the purposes of section 310.01 or this section and it produces a result indicating the presence of alcohol, the result shall be, in the absence of evidence to the contrary, proof that the person has breached a condition of a learner’s licence referred to in paragraph 84(4)(d) or (5)(c), as the case may be, if
(a) the person was the holder of the learner’s licence when the sample was provided, and
(b) the analysis was made by means of any device prescribed by regulation for the purposes of this subsection, in the manner prescribed by regulation.
310.02(15)Subsection (14) shall not be construed by any person, court, tribunal or other body to limit the generality of the nature of proof that a novice driver has breached a condition of a learner’s licence referred to in paragraph 84(4)(d) or (5)(c), as the case may be.
310.02(16)The Lieutenant-Governor in Council may make regulations
(a) prescribing devices for the purposes of the definition “provincially approved screening device” in subsection (1);
(b) prescribing the manner in which the analysis results produced by provincially approved screening devices or other screening devices may indicate the presence of alcohol in samples of breath;
(c) prescribing devices for the purposes of subsection (14).
1994, c.69, s.6; 2002, c.32, s.21; 2007, c.44, s.18; 2008, c.33, s.8
Breath sample
310.02(1)In this section
“provincially approved screening device” means a device prescribed by regulation for the purposes of this section;
“qualified technician” means a qualified technician as defined in subsection 254(1) of the Criminal Code (Canada).
310.02(2)Subsections (3) and (4) apply and subsection (5) does not apply if a peace officer making a demand of a novice driver uses one screening device for the purposes of section 310.01 and another screening device for the purposes of this section, and subsection (5) applies and subsections (3) and (4) do not apply if the peace officer uses one screening device for the purposes of both section 310.01 and this section.
310.02(3)If a novice driver, upon demand made by a peace officer under subsection 254(2) of the Criminal Code (Canada), provides a sample of breath that, on analysis as described in subsection 310.01(1), registers “Pass” but the peace officer reasonably suspects that the novice driver has alcohol in his or her body, the peace officer may, for the purposes of determining compliance with paragraph 84(4)(d) or subsection 84(5), demand that the novice driver provide within a reasonable time such further sample of breath as in the opinion of the peace officer or qualified technician is necessary to enable a proper analysis of the breath to be made by means of a provincially approved screening device and, if necessary, to accompany the peace officer for the purpose of enabling such a sample of breath to be taken.
310.02(4)A peace officer may request a novice driver to surrender the driver’s learner’s licence if, upon demand of the officer made under subsection (3), the novice driver fails or refuses to provide a sample of breath or provides a sample of breath that, on analysis by a provincially approved screening device, produces a result indicating, in the manner prescribed by regulation, the presence of alcohol.
310.02(5)A peace officer may request a novice driver to surrender the driver’s learner’s licence if, upon demand made by the peace officer under subsection 254(2) of the Criminal Code (Canada), the novice driver
(a) fails or refuses to provide a sample of breath, or
(b) provides a sample of breath that, on analysis, produces a result indicating, in the manner prescribed by regulation, the presence of alcohol.
310.02(6)A novice driver whose learner’s licence has been requested under subsection (4) or (5) shall surrender the licence to the peace officer requesting it forthwith and, whether or not the novice driver is unable or fails to surrender the licence to the peace officer, the licence is revoked and the novice driver’s driving privilege is suspended for a period of twenty-four hours from the time the request is made.
310.02(6.1)The licence suspension under this section runs concurrently with a suspension, if any, under section 310.04.
310.02(7)If an analysis of the breath of a novice driver is made under subsection (3) or (5) and produces a result indicating, in the manner prescribed by regulation, the presence of alcohol, the novice driver may require a further analysis to be made by means of a provincially approved screening device, in which case the result obtained on the second analysis governs and any revocation and suspension resulting from an analysis under subsection (3) or (5) continues or terminates accordingly.
310.02(8)If an analysis of the breath of a novice driver is made under subsection (3) or (5) and produces a test result indicating, in the manner prescribed by regulation, the presence of alcohol, the peace officer who made the demand for the sample of breath shall advise the novice driver of the right under subsection (7) to a further analysis.
310.02(9)The revocation of a licence and the suspension of a driving privilege under this section are in addition to and not in substitution for any other proceeding or penalty arising from the same circumstances.
310.02(10)Every peace officer who requests the surrender of a licence from a novice driver under section 310.01 or under this section shall
(a) keep a written record of the revocation and suspension with the name, address and licence number of the novice driver and the date and time of the revocation and suspension,
(b) provide the novice driver with a written statement setting out the time at which the revocation and suspension take effect, the length of the period during which the licence is revoked and privilege suspended and the place where the licence may be recovered upon the termination of the revocation and suspension and acknowledging receipt of the licence that is surrendered, and
(c) forward to the Registrar forthwith a written report setting out the name, address and licence number of the novice driver and such particulars respecting the taking of the sample of breath and the conduct and results of the analysis as the Registrar may require in relation to the matter.
310.02(11)If the motor vehicle driven by a novice driver whose licence is revoked and whose driving privilege is suspended under this section is in a location from which, in the opinion of a peace officer, it should be removed and there is no person easily available who may lawfully remove the vehicle with the consent of the novice driver, the peace officer may remove and store the vehicle or cause it to be removed and stored and shall notify the novice driver of its location.
310.02(12)The costs and charges incurred in moving and storing a vehicle under subsection (11) shall be paid, before the vehicle is released, by the person to whom the vehicle is released.
310.02(13)Every person who, without reasonable excuse, fails or refuses to comply with a demand made to the person by a peace officer under this section, commits an offence.
310.02(14)Where an analysis of a sample of a person’s breath has been made for the purposes of section 310.01 or this section and it produces a result indicating the presence of alcohol, the result shall be, in the absence of evidence to the contrary, proof that the person has breached a condition of a learner’s licence referred to in paragraph 84(4)(d) or subsection 84(5), as the case may be, if
(a) the person was the holder of the learner’s licence when the sample was provided, and
(b) the analysis was made by means of any device prescribed by regulation for the purposes of this subsection, in the manner prescribed by regulation.
310.02(15)Subsection (14) shall not be construed by any person, court, tribunal or other body to limit the generality of the nature of proof that a novice driver has breached a condition of a learner’s licence referred to in paragraph 84(4)(d) or subsection 84(5), as the case may be.
310.02(16)The Lieutenant-Governor in Council may make regulations
(a) prescribing devices for the purposes of the definition “provincially approved screening device” in subsection (1);
(b) prescribing the manner in which the analysis results produced by provincially approved screening devices or other screening devices may indicate the presence of alcohol in samples of breath;
(c) prescribing devices for the purposes of subsection (14).
1994, c.69, s.6; 2002, c.32, s.21; 2007, c.44, s.18
Breath sample
310.02(1)In this section
“provincially approved screening device” means a device prescribed by regulation for the purposes of this section;
“qualified technician” means a qualified technician as defined in subsection 254(1) of the Criminal Code (Canada).
310.02(2)Subsections (3) and (4) apply and subsection (5) does not apply if a peace officer making a demand of a novice driver uses one screening device for the purposes of section 310.01 and another screening device for the purposes of this section, and subsection (5) applies and subsections (3) and (4) do not apply if the peace officer uses one screening device for the purposes of both section 310.01 and this section.
310.02(3)If a novice driver, upon demand made by a peace officer under subsection 254(2) of the Criminal Code (Canada), provides a sample of breath that, on analysis as described in subsection 310.01(1), registers “Pass” but the peace officer reasonably suspects that the novice driver has alcohol in his or her body, the peace officer may, for the purposes of determining compliance with paragraph 84(4)(d) or subsection 84(5), demand that the novice driver provide within a reasonable time such further sample of breath as in the opinion of the peace officer or qualified technician is necessary to enable a proper analysis of the breath to be made by means of a provincially approved screening device and, if necessary, to accompany the peace officer for the purpose of enabling such a sample of breath to be taken.
310.02(4)A peace officer may request a novice driver to surrender the driver’s learner’s licence if, upon demand of the officer made under subsection (3), the novice driver fails or refuses to provide a sample of breath or provides a sample of breath that, on analysis by a provincially approved screening device, produces a result indicating, in the manner prescribed by regulation, the presence of alcohol.
310.02(5)A peace officer may request a novice driver to surrender the driver’s learner’s licence if, upon demand made by the peace officer under subsection 254(2) of the Criminal Code (Canada), the novice driver
(a) fails or refuses to provide a sample of breath, or
(b) provides a sample of breath that, on analysis, produces a result indicating, in the manner prescribed by regulation, the presence of alcohol.
310.02(6)A novice driver whose learner’s licence has been requested under subsection (4) or (5) shall surrender the licence to the peace officer requesting it forthwith and, whether or not the novice driver is unable or fails to surrender the licence to the peace officer, the licence is revoked and the novice driver’s driving privilege is suspended for a period of twenty-four hours from the time the request is made.
310.02(7)If an analysis of the breath of a novice driver is made under subsection (3) or (5) and produces a result indicating, in the manner prescribed by regulation, the presence of alcohol, the novice driver may require a further analysis to be made by means of a provincially approved screening device, in which case the result obtained on the second analysis governs and any revocation and suspension resulting from an analysis under subsection (3) or (5) continues or terminates accordingly.
310.02(8)If an analysis of the breath of a novice driver is made under subsection (3) or (5) and produces a test result indicating, in the manner prescribed by regulation, the presence of alcohol, the peace officer who made the demand for the sample of breath shall advise the novice driver of the right under subsection (7) to a further analysis.
310.02(9)The revocation of a licence and the suspension of a driving privilege under this section are in addition to and not in substitution for any other proceeding or penalty arising from the same circumstances.
310.02(10)Every peace officer who requests the surrender of a licence from a novice driver under section 310.01 or under this section shall
(a) keep a written record of the revocation and suspension with the name, address and licence number of the novice driver and the date and time of the revocation and suspension,
(b) provide the novice driver with a written statement setting out the time at which the revocation and suspension take effect, the length of the period during which the licence is revoked and privilege suspended and the place where the licence may be recovered upon the termination of the revocation and suspension and acknowledging receipt of the licence that is surrendered, and
(c) forward to the Registrar forthwith a written report setting out the name, address and licence number of the novice driver and such particulars respecting the taking of the sample of breath and the conduct and results of the analysis as the Registrar may require in relation to the matter.
310.02(11)If the motor vehicle driven by a novice driver whose licence is revoked and whose driving privilege is suspended under this section is in a location from which, in the opinion of a peace officer, it should be removed and there is no person easily available who may lawfully remove the vehicle with the consent of the novice driver, the peace officer may remove and store the vehicle or cause it to be removed and stored and shall notify the novice driver of its location.
310.02(12)The costs and charges incurred in moving and storing a vehicle under subsection (11) shall be paid, before the vehicle is released, by the person to whom the vehicle is released.
310.02(13)Every person who, without reasonable excuse, fails or refuses to comply with a demand made to the person by a peace officer under this section, commits an offence.
310.02(14)Where an analysis of a sample of a person’s breath has been made for the purposes of section 310.01 or this section and it produces a result indicating the presence of alcohol, the result shall be, in the absence of evidence to the contrary, proof that the person has breached a condition of a learner’s licence referred to in paragraph 84(4)(d) or subsection 84(5), as the case may be, if
(a) the person was the holder of the learner’s licence when the sample was provided, and
(b) the analysis was made by means of any device prescribed by regulation for the purposes of this subsection, in the manner prescribed by regulation.
310.02(15)Subsection (14) shall not be construed by any person, court, tribunal or other body to limit the generality of the nature of proof that a novice driver has breached a condition of a learner’s licence referred to in paragraph 84(4)(d) or subsection 84(5), as the case may be.
310.02(16)The Lieutenant-Governor in Council may make regulations
(a) prescribing devices for the purposes of the definition “provincially approved screening device” in subsection (1);
(b) prescribing the manner in which the analysis results produced by provincially approved screening devices or other screening devices may indicate the presence of alcohol in samples of breath;
(c) prescribing devices for the purposes of subsection (14).
1994, c.69, s.6; 2002, c.32, s.21