The prosecution sometimes needs to use a forensic toxicologist to calculate a driver’s blood alcohol content at the time of driving, by using the Intoxilyzer breath-readings at the police station. The toxicologist usually needs the driver’s weight to make this calculation.

When a driver calls a lawyer at the police station, the lawyer should generally tell the driver that they are not required to give his or her weight to the police, or get on a scale. But what happens if the police order a driver to get on a scale? This is what happened in a recent Ottawa impaired driving case. The police knew the prosecution would need the driver’s weight.  The driver declined to give her weight or get on a scale.  The police insisted that she get on the scale, and she eventually complied.

At the trial, the prosecution tried to use a report from a toxicologist that depended on the weight  The trial judge ruled that the police demand for the driver to get on the scale was an illegal search that violated the Charter of Rights and Freedoms.  The weight was excluded from evidence.  The driver was found not guilty of driving with a blood alcohol content over 80.  (See: R. v. McLachlan,  [2015] O.J. No. 6984)

Ottawa DUI Lawyer

Charged with drinking and driving in Ottawa? Contact Brett McGarry to discuss the best strategy for your case.