A key component in developing a successful defence for a drunk-driving charge involves a thorough and step-by-step analysis of all the circumstances leading up to the arrest and charges being laid. And, if any improper procedures were followed by arresting officers and/or the accused’s legal rights were violated in some way, there may be strong grounds for having the charges dropped.

In recent DUI case, the charge of ‘over 80’ was dismissed against a man after the defence provided compelling evidence that the accused’s Charter rights had been violated during the arrest. The conduct of the arresting officer was a key issue addressed during the trial. The Court found that the officer did not properly facilitate the accused’s right to choose his own lawyer. The Court was also not satisfied that the roadside breath test had been properly conducted and could be objectively relied upon. 

Background: R. v. Coelho (2018)

In R. v. Coelho, a man was charged with driving under the influence of alcohol (over 80), after being found at the scene of a multi-vehicle collision. When police were called to the scene of the accident, they observed several cars and a truck that were damaged and unoccupied. When asked, the people gathered at the scene all responded that no one was hurt. One man came forward to police and volunteered that he was the driver of the truck and he explained that the truck’s damage was caused by a mechanical problem.

While speaking with the truck driver, one of the officers noticed the smell of alcohol on the man’s breath; consequently, the officers made an ASD (Approved Screening Device) demand. After registering a fail, the man was arrested and read his right to counsel, a caution, and a breath demand. He was also asked if he wanted to call his lawyer right away, to which he answered ‘yes’ and asked for his cell phone so that he could make the call. The arresting officer replied that she would facilitate this request at the police station.

When the arrested man was finally placed in a room at the station, the officer discovered that the man’s phone had no battery left, so she proceeded to call Duty Counsel. The accused consulted with Duty Counsel and was then passed on to the breath technician; when the latter asked whether he had spoken to Duty Counsel and was satisfied with Counsel, the accused replied ‘yes’. The two breath samples indicated readings of 181 mg and 178 mg of alcohol per 100 ml of blood, respectively. As a result, the man was charged with ‘over 80’ (operation of a motor vehicle while having a blood alcohol concentration over 80 mg/100 ml of blood). 

Analysis and Findings

Because the accused was not arrested on the charge of impaired driving, the key issue in this case was the admissibility of the breath readings, since the charge of ‘over 80’ cannot be proven without the breath evidence. Defence counsel maintained that the accused’s Charterrights were violated in three respects and therefore, his breath samples should be excluded.

First, defence counsel argued that the statements the accused made to police when they arrived at the scene were made while he was detained and before he was given the caution and advised of his right to remain silent. Further, it was argued that the man’s admission that he was the driver of the truck could not be used as evidence because they were statutorily-compelled statements made in accordance with the requirement to report an accident. Without the admission that the accused was driving, defence counsel asserted that the police did not have reasonable grounds to demand a breath sample and therefore, the man’s s. 8 Charterrights had been violated.

A second defence argument pertaining to a breach of Charter rights (and thus, an absence of objective grounds for the breath demand) was that the arresting officer failed to properly consider when the ASD device used on the defendant had last been checked and calibrated. The officer checked the device only by blowing into it herself just before her shift – when it gave a zero reading, she assumed it was working properly.

Under s.10(b) of the Charter, police must not only give a detained person a reasonable opportunity to contact their lawyer, but they must also ‘facilitate that contact’. In R. v. Coelho, the defence argued that the arresting officer violated the defendant’s Charter rights when she did not make any reasonable effort to put the accused in contact with his chosen counsel.

On the first argument, the Court found that evidence from the officers’ body microphones and car video did not support a conclusion that the accused was being physically detained when he came forward and volunteered that he was the driver of the truck. Nor did the Court find that the accused was psychologically detained or under a statutory compulsion to make the statements to the arresting officers. On this basis, the Court decided that the accused’s admission that he was the driver of the unoccupied truck at the time of the accident was admissible as evidence and further, provided grounds for demanding an ASD breath sample and making a s. 254(3) breath demand.

The second defence argument concerned proper use of the ASD roadside test. The determination that an officer has an objectively reasonable belief in grounds to demand a breath sample depends, to a great extent, on whether the officer can reasonably believe that the ASD is working properly. If the officer cannot rely on the accuracy of the ASD test result, the results cannot be used in deciding whether there are reasonable and probable grounds to make an arrest and demand a breath test. On this issue, there was evidence that the arresting officer did not put her mind to, or regularly check, when the ASD had last been checked for accuracy and calibration, and further, she indicated no interest in this information. Not only did she not have knowledge of the procedures for, and frequency of, testing of these devices, the officer testified that she did not know the significance of a PASS, WARN or FAIL result and was unfamiliar with the exact BAC (blood alcohol concentration) that would produce any of these results. This evidence did not inspire confidence that the arresting officer had checked that the ASD was working properly; therefore, the Court was not satisfied that the officer had objectively reasonable grounds to make a 254(3) demand. Accordingly, the Court decided that the defendant’s s. 8 Charter rights were violated.

On the third issue, the Court concluded that the arresting officer failed to fulfill the accused’s right to counsel. The accused’s and officer’s testimony both confirmed that the accused stated he wished to speak with his own lawyer when first asked and wanted to use his phone in order to do so. However, rather than facilitating this request, the officer did not inform the accused that his cell phone had no battery and did not ask him for his lawyer’s name or offer to help find his number. The right to a legal counsel of their own choice is a fundamental right for an accused person, and the officer’s failure to facilitate the right to counsel was held to be a breach of the accused’s 10(b) Charter rights in this case.

Once a breach of Charter rights has been identified, the seriousness of the breach is a key consideration in a decision to exclude evidence so that the administration of justice is not brought into disrepute. In this case, the Court found that the combination of violations under s. 8 and 10(b) of the Charter constituted a serious breach. The Court noted that the officer had a ‘flagrant disregard’ for facilitating the accused’s contact with the counsel of his choice and further, she displayed a casual approach and only a superficial understanding on the use of the ASD. 


The Court stated that the s. 10(b) Charter breach had minimal impact in the obtaining of breath samples; however, the s. 8 breach directly led to the collection of breath samples and seriously impacted the accused’s Charter rights. The Court decided that the s. 8 breach and the seriousness of the s. 10(b) breach weighed heavily in favour of excluding the breath sample evidence. And, without this evidence, the Crown had no case to support the ‘over 80’ charge.

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