ISSUE
Can an individual request the opportunity to provide an approved
screening device ["ASD"] sample at a police station or at
a later time after having refused to comply with a roadside ASD
demand?
BRIEF ANSWER
Individuals can change their mind about complying with an ASD
demand after an initial refusal if their reconsideration is part of
the "same transaction" as their refusal. If an individual
requests the opportunity to provide a sample as part of the same
transaction as their refusal, the actus reus of the
refusal offence cannot be established.
The length of time of such a transaction is context dependent
but it is the same time window during which a police officer can
lawfully compel a breath sample as set out by the statutory
immediacy requirement. The statutory immediacy requirement sets out
that an ASD must be provided immediately, subject to the
operational time it takes an officer to ready the equipment and
instruct the suspect.
