For instance, if you pull into a R.I.D.E (Reduce Impaired Driving Everywhere) program and the police officer smells alcohol on your breath and notices red and glassy eyes, they do not have reasonable and probable grounds to believe that your ability to operate a motor vehicle was impaired by alcohol. In such a case, they must give you an Alcotest, which is a roadside screening test. If you blow over the legal limit on the Alcotest, the police can arrest you for being over the legal limit of blood alcohol, but they should not arrest you for impaired driving.
In this example, if you fail the roadside screening test, the police would arrest you for being over the legal limit and make an Intoxilyzer breath demand. They would then bring you back to the police station and require you to provide two breath samples at least 17 minutes apart into an Intoxilyzer. If your two Intoxilyzer breath test results were both 80 or over milligrams of alcohol in 100 milliliters of blood, you would be charged with blowing over the legal limit under the s. 320.14(1)(b) of the Criminal Code.
An example of Impaired driving (i.e., impaired operation) would be where the police observe you weaving on the roadway, crossing the centre line and slurring your words due to the alcohol in your blood stream or a drug, which is not the case in the example given above. If the police only have minimal impairment symptoms such as a mere odour of alcohol on your breath and no other symptoms, and mistakenly bypass the Alcotest screening device test, and simply arrest and charge you with impaired operation, you could potentially win at trial.
In this example of having minimal impairment symptoms, your lawyer would serve and file a s. 8 Charter application to exclude your breath samples from being introduced as evidence at your trial and your charges would probably be dismissed at trial. However, if you pull into a R.I.D.E program and your driving is poor, you are heavily slurring, do not make sense while talking to the police, and have poor balance while standing or walking, the officer can arrest and charge you with impaired driving. In such a case, you most likely won’t have the best chances of winning your case, unless you can create a reasonable doubt at your trial that there are other reasons for your impaired driving symptoms other than the consumption of alcohol or drugs, or if you can successfully challenge the credibility and reliability of the police witnesses.
There are many cases in between total sobriety and falling down drunk, and it depends on where your case falls along the spectrum and the experience of the police officer regarding whether you will be able to win your case. For example, If you made a slight weave on the roadway which caused the police officer to pull you over, and you merely have an odour of alcohol on your breath and exhibit no other symptoms of impairment, the police may not have reasonable and probable grounds to arrest you for impaired operation, and you could potentially win at trial.
In the Canadian criminal justice system, the Charter of Rights and Freedoms protects the rights of individuals who are charged with a criminal offence. The Charter applies to everyone in Canada, including Canadian citizens, permanent residents, and visitors. Under Section 8 of the Charter, everyone has the right to be secure against unreasonable search or seizure. This means that the police cannot search you or seize your property without a warrant or without reasonable grounds to believe that a crime has been committed.
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Video Transcription:
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.
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