When I reprent a client in a DUI matter, one of the many defences I look for is what is called ‘as soon as practicable’ defence in the criminal code. This is a very common defence, let me give you an example.
First of all, under our criminal code, the police are required to take your toxilizer breath samples at the police station as soon as practicable, and at any event, no later than two hours after the time of driving. Now what does ‘as soon as practicable’ mean?
Here’s an example: I’m stopped by the police. They’ve pulled me over because maybe I’m weaving on the roadway, and they detect an odour of alcohol on my breath, and maybe a slight slur.
That might be a winning impaired driving case, depending on the circumstances by the way. So they arrest me. Well, the clock has started now – they have two hours to get that first breath sample in, under the criminal code. So that’s very important.
Equally important is they have a very technical procedural set of steps they have to do which follow one after the other, which are often very difficult for them to do and comply with, it’s very technical. As a lawyer, I’m looking for a breakdown in any one of those steps.
Now, one of the things is, they have to keep things moving. So let me give you an example: you get back to the police station and you’re sitting in a cell for 20 minutes, and nothing’s going on. The breath technician has not started tuning up his intoxilizer machine, and they’re not processing you any further, and their notes have that gap.
That might be a winning case – that’s the definition of ‘as soon as practicable’. There’s a gap there of 20 minutes, and they haven’t complied by keeping things moving. We’re looking for those gaps, they often emerge at trial, and the police get really frustrated with this, especially if you have an inexperienced police officer.
That – believe it or not – that simple technicality could make the difference between winning (or losing) your case, and a good lawyer knows what to look for. Even if an ‘as soon as practicable’ defence – you don’t see it on paper – it often emerges in court because the officer testifying on the stand has a hard time really relating to the court the steps he or she took, and that gap emerges. So I look for that, at least, 20 minute gap either in court or in the disclosure, and we can often win that case and the crown cannot prove their case beyond a reasonable doubt.