To make a legal breath-demand the police must believe that the drinking and driving offence happened within the previous three hours.  Usually, the police actually stop someone while they are driving, and so the three hour window will not be an issue.  When the police do not actually see the driving, however, a number of issues can come up.

In R. v. Albert, 2015 ABPC 155, for example, the Intoxilyzer breath readings were excluded as evidence because the arresting officer did not turn his mind to the time of driving. The police had received a report of an accident, where the driver was attempting to leave the scene.  One minute later the police arrived on scene. Witnesses pointed out the accused to the police and said he was the driver. At trial, there was no evidence that the arresting officer considered the time of driving. The judge commented that:

 In order to make a valid demand pursuant to s. 254(3) the officer must satisfy the prerequisites within that section. One of those prerequisites is that the officer had reasonable grounds to believe that the offence was committed within the three hours preceding the demand. If the Crown cannot demonstrate that the officer has reasonable grounds as to that prerequisite the search or seizure of breath samples is an unreasonable search or seizure contrary to s. 8 of the Charter. Reasonable grounds has a subjective and objective component. The officer must have an honest subjective belief that his or her demand was made within the three hours of the commission of the offence. Moreover, there must be an objective reasonable basis for that belief. The failure to prove either component can give rise to a s. 8 Charter breach.

Ottawa DUI Lawyer

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