Kruse Law – Reasonable and Probable Grounds

When the police arrest you for impaired driving they must have reasonable and probable grounds that your ability to operate a motor vehicle was impaired by alcohol.

Oftentimes they don’t. And what your lawyer will do is they will bring a section 8 charter application that it was in an unlawful seizure of your breath samples and they will seek to exclude the evidence under Section 24-2 of the Charter, meaning the breath samples. And you win your case.

Let me give you an example. This is the example which I often tell my clients during the first interview:

I pull in to a RIDE* (Reduce Impaired Driving Everywhere) program and I’ve been drinking. The police officer asks me, you know, “Have you been drinking?” I roll the window down, “there is an odour of alcohol on your breath.” I have red and glassy eyes.

In that particular case, the police do not have reasonable and probable grounds to believe your ability to operate a motor vehicle was impaired. Because it’s not. It just shows you have been drinking. What they have to do in that particular situation is give you what’s called an “Alcotest”, which is a road-side screening test. If you blow over on it, they’re gonna charge you with blowing over the legal limit. But not with impaired driving. Impaired driving means, you’re all over the roadway, you’re slurring etcetera but you weren’t. So in that particular case, if they falsely charge you, if they in their own mind, think you’re… they have reasonable probable grounds, and bypass the Alcotest, in other words just arrest you, you can easily win that case, by excluding in a trial, bringing that Charter application.

Let me give you the same example but I pull into the RIDE program: “My driving’s poor, I’m heavily slurring, I roll down the window, I’m not making sense.” That officer’s gonna be able to arrest you. You probably wouldn’t be able to win that case. But you’re too drunk. But you see there’s a lot of other cases where people have made… a slight weave on the roadway. Police officer pulls them over. Uhm… Maybe they have an odour of alcohol on their breath, and everything else is fine, though. They probably would not have reasonable and probable grounds under that case and you could win it at trial.

There’s all sorts of cases in between: from total sobriety to falling down drunk. It really depends where your case is. It really depends on the experience of the police officer. There’s a lot of police officers that make mistakes and we consistently win with this defence, under our Canadian Charter of Rights and Freedoms. That’s the video tip of the day.