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Acquittal – Over 80mg, Failing to Have Insurance Card, & Passing by Driving off Roadway (Case Study)


Justin MarchandCity: Toronto, Ontario
Our Client: Mr. B.
Complainant: Toronto Police Services
Charge(s): Operation of Motor Vehicle with More than 80mg of Alcohol in 100ml of Blood and provincial offences of Failing to Have an Insurance Card and Passing by Driving off a Roadway
Lawyer: Justin Marchand

Background: On a July afternoon a motorcycle cop was riding down the Don Valley Parkway in Toronto. A vehicle travelling in the right lane caught his attention as it moved suddenly to the right of the bull nose and entered the Richmond Street exit of the Don Valley Parkway. In order to do this the vehicle had to cross a solid white line. The officer felt that the driver had made a risky move, so he decided to pull the vehicle over. When the officer had stopped the vehicle and dismounted from his motorcycle, he could see that there were two male occupants in the vehicle. The Mr. B. was the driver, and the other occupant was beside him, in the passenger seat. The officer had a conversation with Mr. B. about his abrupt turn off. As he spoke with Mr. B., he detected a smell of alcohol. When he asked for the usual driving documents, he found that Mr. B. was missing his automobile insurance card. Then the officer noted that the smell of alcohol appeared to be coming from the driver, Mr. B. He did not record in his notebook the state of sobriety of the passenger. He demanded that Mr. B. give a breath sample by blowing into a roadside screening device. Mr. B., who was at all times polite and cooperative, did so, and registered a “fail.” Because Mr. B. failed this screening test, the officer had the grounds to demand that Mr. B. accompany him to the police station to provide breath samples into the more accurate breath machine there. When Mr. B. gave his samples at the station, he “blew” well over the legal limit of 80 mg of alcohol in 100 ml of blood. As a result, he was charged with the criminal offence of “Over 80.”  Additionally, he was charged with two provincial offences: failing to have an insurance card and passing by driving off a roadway.

Goal:  The goal was to avoid a criminal record. The plea deal offered would only yield a marginally better outcome then losing at trial and would still leave him with a criminal record. Therefore, the matter would go to trial.

Strategy:  The principle issue in the case revolved around the roadside breath alcohol screening device test and whether the officer had the necessary grounds to make the demand that Mr. B. provide a breath sample into that device. If it could be shown that the officer did not have the grounds to make that demand, the result of the roadside screening could not be used. Without that result, the officer would not have had the grounds to then demand that Mr. B. accompany him to the police station to give additional breath samples into the more accurate breath machine there. Without those breath samples, there would be no evidence of Mr. B. having a blood alcohol concentration over 80 and the Crown would therefore not have a case. We would raise a Charter challenge and argue that there had been breaches by the police of Mr. G.’s constitutional rights under s. 8 (the right to be secure from unreasonable search or seizure) and s. 9 (the right not to be arbitrarily detained) of the Charter. We would then argue that the breaches of his Charter rights were serious enough to warrant the exclusion of the breath sample evidence – without which there could be no conviction for the offence of “Over 80.”

Verdict: We were successful in our arguments that there had been infringements of Mr. B.’s s. 8 and s. 9 Charter rights by the police, and further, that these breaches of Mr. G.’s Charter rights were serious enough to justify the exclusion of the breath machine readings. Mr. B. was acquitted

Please Note: Past results not predictive of future results.

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