In a recent 2015 case, Justice Melvyn Green found a driver not guilty of refusing a roadside breath test.  The police explained the test and gave the driver six chances to blow. The judge was not convinced that the driver intentionally failed to blow:

I appreciate that the provision of a roadside sample is, at is sometimes put, “not rocket science”. I am aware, as well, that the defendant was instructed as to the correct procedure on at least three occasions, that he was cautioned more than once as to the legal consequences of failure, that he was afforded at least six opportunities to provide a suitable sample, and that the officers attributed his futile efforts to improper technique within the defendant’s capacity and control. Nonetheless, I am left with a reasonable doubt as to whether the defendant’s failure to comply with the breath demand was intentional. He displayed no indicia of alcohol intoxication or impairment. He was consistently coherent and polite with the police, and at times apologetic for his inability to register a reading on the ASD. He at least twice advised that he was doing his best to generate a proper sample. According to Sgt. Wong (whose evidence was here unchallenged or otherwise qualified), the defendant “at all times attempted to blow” during the several opportunities he observed. In these circumstances, I am simply not persuaded to the requisite standard that the defendant intentionally failed to comply with the officer’s breath demand.

Charged with breath sample refusal or impaired driving in Ottawa?

Contact Ottawa criminal lawyer Brett McGarry to discuss the best defence for your case at (613) 884-8576.