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Over 80 Driving: Operating a motor vehicle with a blood-alcohol concentration that exceeds eighty milligrams of alcohol in one hundred millilitres of blood contrary to Section 253(1)(b) of the Criminal Code of Canada.
An Ottawa police officer saw David’s sports car pulling out of from the parking lot of a bar. The officer followed David because the car made a wide turn. The officer stopped David three minutes later in front of his own house. David politely admitted to having just consumed two pints at the nearby pub. The officer immediately administered a roadside breath screening test, which David failed. At the police station, David provided two separate breath tests which revealed his blood alcohol content to be slightly over the legal limit.A conviction would have seriously harmed David’s ability to earn an income. He could have lost his professional credentials if he got a criminal record. A license suspension would have prevented him from meeting many of his clients.
It was my opinion that David’s section 8 and 9 Charter rights had been violated because of serious mistakes in the roadside breath testing procedures.The breath reading was likely skewed, because it was obtained just minutes after David left the bar. Residual mouth alcohol can produce false “fails” on roadside machines. In order to administer a valid roadside breath test, the police are required to wait 15 minutes when they believe that a driver has recently consumed alcohol.The roadside screening device “failure” was sole the basis for David’s arrest, as the police officer had not observed any signs of impairment. I applied to have the roadside reading excluded under s. 24(2) of the Charter. If the roadside breath reading was illegally obtained, then David’s arrest was arbitrary and there was no basis to demand that Breathalyzer readings be provided at the police station.
In cross-examination, the arresting officer candidly admitted that he was unaware of the false “fails” produced by residual mouth alcohol. The officer also admitted that he would not have arrested David, but for the “fail” result. The Crown prosecutor then withdrew the charge mid-trial, as there was no longer any reasonable prospect of conviction. As a result, the Over 80 charge was dismissed.
Brett McGarry Criminal Law
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