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Charge(s): Operating a Motor Vehicle while having Blood Alcohol Level Exceeded 80 milligrams of Alcohol in 100 millilitres of blood contrary to s. 253(1)(b) of the Criminal Code
Location: Kingston, Ontario
Our Client(s): Mr. B
Complainant(s): Military Police
Lawyer/Paralegal: Richard Aitken
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Please Note: Past results not predictive of future results.

The Background

Mr. B was a young soldier with a promising military career ahead of him. He was on a Quick Reaction Force (QRF), meaning that he could be deployed anywhere in the world on just 30 days notice. He was the only soldier qualified to carry out his particular role in the QRF capacity. One spring day in the wee small hours of the morning, he was pulled over for speeding by military police. He wasn’t going very fast, but it was a 30 km/hour zone and he was going over the speed limit. When the officer asked him to step out of the vehicle he observed Mr. B to be unsteady on his feet and have “a glaze in his eyes.” The officer demanded that Mr. B give a breath sample into the roadside breath alcohol screening device. When Mr. B did so, the machine registered a “fail,” indicating that Mr. B’s blood alcohol level was over the legal limit. When asked if he had had anything to drink Mr. B replied honestly that he had. He was arrested for operating a motor vehicle while his blood alcohol level exceeded 80 milligrams of alcohol in 100 millilitres of blood contrary to s. 253(1)(b) of the Criminal Code, the offence colloquially known as “Over 80.”  The officer read him his rights to counsel and caution, and made the demand that Mr. B submit to breath tests on the more accurate breath alcohol testing machine at the station. Mr. B was then transported to the military police detachment for more testing and while there he made his calls to counsel. Then he was taken to the local police station where he provided samples of his breath into the breath testing machine there. The machine showed his blood alcohol concentration (BAC) to be nearly twice the legal limit.

The Goals

A criminal conviction would severely curtail Mr. B’s promising military career. The goal was to avoid conviction.

The Strategy

Mr. B’s high BAC readings negated the possibility of pursuing a plea deal to have the Over 80 charge knocked down to the non-criminal charge of “Careless Driving.”  To avoid a criminal conviction, the only option was to fight the charge at trial. Over 80 cases are highly technical and involve a mixture of statutory and constitutional (Charter) requirements. We would argue that the police did not follow the procedures required under the Criminal Code. We would also mount a Charter challenge and attempt to show that the police had violated certain of Mr. B’s rights under the Canadian Charter of Rights and Freedoms and that these violations justified the exclusion of the evidence obtained by the police.

The Results

We were able to argue successfully that there was not sufficient evidence to show that the breath samples taken at the station were collected within the time prescribed by law which is “as soon as practicable,” which meant that the Crown could not rely on the Criminal Code’s provision for the “presumption of identity” which allows the Crown an evidentiary short-cut to prove that the accused’s BAC at the time of the breath test was the same as what it was at the time of driving. Losing the use of this presumption was fatal to the Crown’s case. Mr. B was acquitted.


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