Nathan BakerCity: Peterborough, Ontario
Our Client: Mr. H.
Complainant: Ontario Provincial Police
Charge(s): Operate Motor Vehicle While Impaired by Alcohol & Operate Motor Vehicle with More than 80 mg of Alcohol in 100 ml of Blood
Lawyer: Nathan Baker, B.A., J.D

Background: On a summer night, Peterborough OPP got a call about a possible drunk driver. The witness reported observing a pickup truck that seemed to be having trouble staying in its lane. When police got to where the pickup had been seen, the officer observed a vehicle, fitting the description, exiting the highway and as it did so he observed it move from the high side of the ramp to the low side, cross over and touch the gravel shoulder with the passenger-side wheels. The officer pulled the vehicle over. As he approached, before he could speak, the driver said “I know; I’ll get it,” and produced his driver’s licence which identified him as Mr. H. Then he started searching in his console and glove box for the ownership and insurance and while he was looking, the officer thought he could smell alcohol on Mr. H.’s breath. Mr. H. kept looking and as he did so he said he thought he was going to get a ticket for not having these documents. At this point, the officer said that he saw that Mr. H.’s eyes were red and glassy. The officer advised Mr. H. that he had stopped him because there had been a complaint about his driving. Mr. H. paused. He looked at the officer, and said that he had been on his phone texting. The officer then told Mr. H. that he was going to “do a test” on him. Mr. H. just kept looking for his documents. The officer asked if there was any alcohol in the vehicle and Mr. H. said no. However, the officer could see a case of Miller’s and a case of Sleeman’s in the back seat. When asked if he had drunk any alcohol in the past 15 minutes, Mr. H. said no. The officer asked him to exit the truck and when Mr. H. did so, the officer noticed that his shirt was wet and asked him why. Mr. H. said that he had been swimming. As he walked to the rear of the truck, Mr. H. kept a hand on the truck for balance. The officer demanded that Mr. H. give a breath sample into the roadside breath alcohol screening device. Mr. H. refused, saying he wanted to talk to a lawyer first as he believed was his right; he had read that in an article. The officer asked him again four times, telling him that he would be charged with “refusing “ if he didn’t blow. Mr. H. stuck out his hands to be cuffed and said “arrest me.” He was arrested for refusing to provide a sample. He was transported to the station where he would speak to a lawyer by phone and then give a breath sample into the breath alcohol machine at the station. The readings from his breath sample were over the legal limit of 80 mg of alcohol in 100 ml of blood. As he had changed his mind and had given a breath sample, the officer changed the charge to the offence of Over 80. He also charged Mr. H. with the offence of driving impaired.

Goal: Mr. H. did not have a criminal record and his goal was to avoid getting one, so pleading guilty to these charges was out of the question for him.

Strategy: Mr. H. had been charged with Over 80 and with impaired driving. While the officer had dropped the “refuse” charge, it was possible that the charge could be resurrected. It was also possible that a dangerous driving charge could be added. A trial would be risky, especially if we had to face four charges rather than two. We had to prevent these additional charges being added to the existing two charges and if possible to avoid a trial in this case. We started by filing a Charter challenge to argue that Mr. H.’s rights had been infringed by police and then we approached the Crown to attempt to negotiate a plea to the non-criminal offence of careless driving which would not leave Mr. H. with a criminal record.

Verdict: We successfully negotiate a plea deal whereby Mr. H. only pleaded guilty to the provincial offence of careless driving, which does not care a criminal conviction. The refuse and dangerous driving charges were not added and the Over 80 and impaired charges were withdrawn.