Our firm represents a lot of people who are charged for failing or refusing to provide a breath sample. Now that is a criminal offence and it has the same consequences as driving impaired or driving over the legal limit. So, when we assess a file and looking for a defense. One of them is this, if a police officer observes you on the roadway, and you observe bad driving and pulls you over. You have slurred speech, red and glossy eyes and not making lots of sense. If they have the symptoms, they will have reasonable grounds to arrest you for impaired driving. You would have to provide a breath sample at the police station. If you refuse, you would be convicted of refusal to provide a breath sample. Here is the key: in order to arrest someone for impaired driving the police need to have reasonable probable grounds. If they don’t, you can refuse to provide the breath sample. A statutory defense and you would win. The kicker is that the police3 don’t often make that error. They occasionally do where they don’t have grounds and they should have given them, a screen test. So a lawyer doesn’t know what the grounds are but some clients get lucky because they refuse because they didn’t want to if we can show that the officer saw one slight weave. That person has an absolute right to refuse, you would probably win that type of case. Again, you wont win if there are more serious symptoms such as bad driving, more than one weave, slurred speech, that sort of thing. So it is still a valid defense and the bonus is you don’t have to file a charter application. Filing a charter application for over 80s cases isn’t working as it used to. A case came out called Grant and dealt with this issue. They really limited the exclusion in Over 80 cases. Its still works in refusal and it is still a valid defense. I recall seeing at least two of these cases in our file come into our office the last few weeks with that valid defense. Where the clients can win and hopefully, they can get off on careless driving.
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