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1.1. Judge Conclusions
If you have been arrested and charged with a drinking and driving offence such as ‘over 80’ or ‘impaired driving’, there are a number of reasons why the charges may be dismissed. An experienced criminal defence lawyer will investigate and scrutinize all the details of your arrest process to look for any actions taken by the arresting officers or breath technician who administered intoxilyzer, breathalyzer or blood tests that failed to meet the standards under the Criminal Code or violated your rights. If there are any irregularities or mistakes in the process, there is a good chance of having the charges withdrawn or dismissed.
The R. v. Peters Case
In a 2015 trial, R. v. Peters, the lawyer for the accused argued that there were several reasons why the two charges against Mr. Peters -‘operating a vehicle while impaired’ and ‘over 80’ – failed to prove that he was guilty of the charges. One of the issues challenged by Mr. Peters’ lawyer is whether there was sufficient evidence to find him guilty of impaired driving. The arresting officer pulled Mr. Peters over after watching him turn left and momentarily block traffic when there was no advanced green light; then after following in his cruiser, the officer saw Mr. Peters change lanes twice without signalling as he was driving through a narrow construction zone.
The judge concluded that Mr. Peters’ actions provided only slight evidence of poor driving and reduced motor skills, and therefore did not meet the high standard required to prove a charge of impaired operation of a motor vehicle. In making his decision, the judge cited the Supreme Court Canada decision in R. v. Stellato, which concluded that before an accused can be convicted of an impaired driving charge, a judge must be convinced beyond a reasonable doubt that his or her ability to operate his vehicle was impaired by alcohol or a drug. Further, “if the evidence of impairment is so frail as to leave the trial judge with a reasonable doubt as to impairment, the accused must be acquitted.” Accordingly, the judge dismissed the impaired operation charge against Mr. Peters.
Arguments in Favour of Mr. Peters
Mr. Peters’ lawyer also argued that the over 80 charge should be dropped because the arresting officer did not check the calibration and date for the roadside screening device (ASD) just prior to administering it to Mr. Peters.
After Mr. Peters had been pulled over based on a suspicion of impaired driving, the officer alleged he smelled alcohol on the accused’s breath and for this reason, asked him to provide an approved screening device (“ASD”) sample. Mr. Peters failed the ASD sample. He was then read his right to counsel under s. 10(b) of the Charter and given a demand for a breath test at the police station. There was some delay in completing the intoxilyzer breath samples at the station, but the required two readings for Mr. Peters were finally taken and recorded as 130 and 124 mgs. of alcohol in 100 mls. of blood.
The lawyer for Mr. Peters disputed the ASD results because the officer’s failure to check the calibration and date meant that the Crown did not meet its obligation to prove that the device was in working order. It follows that if the machine cannot be relied upon to be in proper working order, then the ‘fail’ result also cannot be relied upon, which removed the basis for Mr. Peters’ arrest. Further, if the arrest did not have legal grounds, then the later intoxilyzer breath samples taken at the police station were unlawfully administered. Also, the lack of reasonable grounds meant that the seizure of Mr. Peters’ breath was a violation of his rights under sections 8 and 9 of the Charter.
There was some inconsistency in the arresting officer’s statements with respect to checking the approved screening device he used at the scene. Initially, the officer reported that he did a self-test on the device just prior to giving the roadside test to Mr. Peters, but he then changed his testimony to admit that the self-test had been done four hours earlier while he was engaged in a R.I.D.E. program. There was nothing in the officer’s notes to corroborate when or if this test was completed.
The judge in this case acknowledged that the officer’s changed testimony and failure to document his self-test for the ASD device weakened the reliability of his evidence. The judge also criticized the officer’s failure to read the calibration sticker on the device prior to testing Mr. Peters. The ASD is only considered to be a preliminary tool to confirm or reject a suspicion of a whether a driver has more than 80 mgs. of alcohol in 100 mls. of blood. An officer needs to have a reasonable belief that an ASD is functioning properly and that any breath sample results are reliable.