I’m here to talk to you about the video tip of the day. This was a recent win I had in the Ontario Court of Justice in an over 80 mg case.
What happened is, my client was driving and he did a slight swerve and the police pulled him over and he had an odour of alcohol on his breath. So what the police did is – they formed a reasonable suspicion, quite properly, that he had alcohol in his system. The problem is, they did not have the Alcotest – that’s the road size screening device with them. This is called the “George Cellphone Defense” – that’s the euphemistic term I use for it, anyway.
R. v. George is a case from the Ontario Court of Appeal and it basically states this: If the police make an approved screening device demand but they don’t have the device with them at the scene – for example, they order another police cruiser to cover the scene – what happens – it depends on the number of minutes that passed by, so for example, in the George case, there was sixteen minutes that passed by and in the George case – the person had a cellphone with them. What the police should have done is they should have allowed him to call a lawyer. There was a reasonable opportunity to call a lawyer.
And as a result of that, the fail that this person did on the approved screen device was thrown out in George, and of course, the fail on the Intoxilyzer back at the breath station was thrown out under our Canadian Charter of Rights and Freedoms. That’s a right to counsel, application that’s filed by the defense.
This is exactly what I did in this particular case and we were successful. In my particular case, in my client’s particular case, there was fifteen minutes of delay – the court ruled that the officer should have given him rights to counsel, he should have been able to phone his lawyer and we were able to exclude the breath samples under Section 24(2) of the Charter. My client was ecstatic, we had a good day in court, and this is a defense that works in Ontario.