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City: Brantford, Ontario
Year: 2019
Our Client: Ms. B.
Charge(s): Blood Alcohol Level Over 80, Impaired Driving& Possession of Open Alcohol
Lawyer:  Justin Marchand
Criminal Lawyer Justin Marchand

Case Study: Blood Alcohol Level Over 80, Impaired Driving & Possession of Open Alcohol

Background Allegations

Ms. B. is a born and raised citizen of the Halton region. Between her position as an office manager and her four dependent children and one out on his own, she’s a busy woman, but she doesn’t let that stop her from making time for everyone else. With what little free time she has left she volunteers in the ER at a hospital and drives out of town to support her eldest son in his professional hockey career. A hard working professional, a dedicated mother, and a supporting member of her community, Ms. B. is truly a role model.

After a Friday evening cheering her son on in the stands of the ice rink in London, Ms. B. was on her lengthy drive home as per usual. Around 2:30am she was stopped by OPP, who claim to have smelled alcohol on her breath, claim to have seen an LCBO bag and open alcohol in the car, and claim Ms. B. had red eyes. Ms. B. informed us that this was all mistaken.

She was taken from her car, asked to provide a breath sample, and subsequently arrested. She was read her list of rights, brought to the Brantford Police Station, and around 45 minutes after the initial stop she provided a sample for the Intoxilyzer test before being released with a Promise to Appear.


Ms. B. has four financially dependent children and an independent child living in another city. She holds both employment and a volunteer position in which people rely on her punctuality. For Ms. B. we needed the charges dropped so her ability to drive would remain unimpeded.

The Strategy

The Crown not only has to prove beyond a reasonable doubt that the accused committed the crimes they are charged with, but to do so while following strict guidelines laid out by the Charter of Rights and Freedoms. Violations of the Charter can result in evidence being excluded, charges being dropped, and potentially repercussions for the police or Crown.

We called into question the police’s adherence to three sections of the Charter:

  • s.8: The right against unreasonable search and seizure.
  • s.9: The right against arbitrary detainment or imprisonment.
  • s.10b: The right to, upon arrest or detention, retain and instruct counsel without delay and to be informed of this right.

If we could prove that the breath Ms. B. provided was done so through police violations of any of these three rights the breath would be admissible as evidence, and the Crown’s case would be left without support. We also called into question the time taken between the first and second samples given for the Intoxilyzer at the Brantford station, as there was no reason in the police notes as to why there was a 24 minute delay.


The judge noted that while both the Crown and defence had presented a substantial amount of evidence he was concerned with the lack of certainty the Breath Tech had in the accuracy of the Intoxilyzer 8000c reading at the time. As this creates reasonable doubt, the charges against Ms. B. were dismissed by the judge.

Please Note: Past results not predictive of future results.

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