Impaired and Over 80 Charges

Our client, a professional man, aged 28, single, approached us with respect to his recent involvement with the police.

Kingston Police charged Mr. N with impaired operation of a motor vehicle and operate a motor vehicle with more than 80 mg of alcohol in 100 ml of blood.

Sgt. S observed a vehicle travelling at a very high rate of speed with its headlights off. When she followed the vehicle, it turned right and parked between 2 other vehicles, which Sgt. S believed was an attempt to evade police.

Sgt. S spoke to the driver, Mr. N and noticed signs of impairment. Mr. N, when asked, admitted to consuming four drinks. Mr. N had some trouble providing a sample to the Approved Screening Device (ASD), and was arrested for impaired driving.

At the police station, Mr. N was put in contact with lawyer M, and the two spoke in private. When was setting up the Intoxilyzer for Mr. N. to provide a sample the police officer noticed that the Alcohol Standard Solution had expired. A new solution had to be used and there was some delay while waiting for the solution to reach the proper temperature. Eventually, Mr. N provided 2 suitable samples of breath the first of which resulted in a reading of 166 mg of alcohol in 100 ml of blood and the second which was 147 mg of alcohol in 100 ml of blood.

Crown Position: Plea of guilty for a $1,400 fine and a one year driving prohibition.

Given his professional obligations and aspirations, it was vital that we be successful in either having the charges reduced to careless driving or obtaining an acquittal of all of the criminal charges at trial. Despite our extensive preparation and negotiations with the Crown Attorney’s Office, they were unwilling to reduce the charge to careless driving. I told Mr. N that his chances of winning at trial or obtaining a careless at trial were about 25%. Mr. N opted to proceed to trial in spite of the modest odds. If he lost, his promising career would be impacted.

What happened at trial? The trial began in June of 2018. On the first day of trial, the arresting officer Sgt. S testified. The Sgt. was an experienced officer. She gave detailed evidence that in fact was more extensive and negative towards the accused than expected. I was somewhat frustrated in that every question I asked seemed to result in a worse answer and evidence against Mr. N. However, I was struck that when the Crown attorney asked the basic question of “What were your reasonable and probable grounds to arrest Mr. N?,” the officer faltered and said “Mr. N was impaired by alcohol”. This of course was the wrong thing to say. Sgt. S needed to say something like “I had reasonable and probable grounds to believe that Mr. N’s ability to operate a motor vehicle was impaired by alcohol”. Although this was a serious problem for the Crown, and a breach of Mr. N’s Charter rights that he was arrested and given a breath demand without reasonable and probable grounds, it is no longer the case that every breach of the Charter leads to exclusion of evidence and success at trial. However, it was a start.

On day two of the trial, the qualified breath tech, P.C. S, gave some rather interesting evidence. He went on to describe that he felt that my client was a very experienced drinker that given his high blood alcohol levels according to the Intoxilyzer, he would have thought we would have seen more physical signs of impairment by alcohol in Mr. N. I thought I should explore this further. The officer admitted that other than the Intoxilyzer results, and what the segeant had told him of her observations of Mr. N’s signs of impairment, P.C. S had observed no signs himself. The qualified breath tech admitted that based on his own observations, he would not have even given Mr. N a roadside breath test—where the standard was the very low threshold of ‘suspicion’ of alcohol in the driver’s body! That was good for Mr. N’s case.

Further along in the cross examination, the breath tech explained why there were some delays in the breath testing.

Testing to be legal must be done ‘as soon as practicable’. We had a 38 minute delay because of the out of date simulator solution having to be changed. I was surprised by the fact that it was not already fresh solution, ready to test. During cross examination, it was revealed that formerly there was a system to ensure that the solution was never expired, always fresh, and ready to go, but that system fell between the cracks because of a tragedy that involved the responsible police officer.

My strategy at this point was that the observations of the arresting officer and the breath tech were so different, it was almost as though they had investigated different people. I was going to argue that the Crown had not proven the charge of impairment of Mr. N’s ability to operate a motor vehicle due to alcohol, beyond the legal standard of ‘beyond a reasonable doubt’.

That of course left the over 80 charge. I was going to argue that Mr. N’s Charter rights were violated by the lack of reasonable and probable grounds for the arrest and breath demand, and that the 38 minute delay in breath testing was both a Charter breach as to unreasonable search and arbitrary detention, and as well as a statutory breach of not being ‘as soon as practicable’. I began to think that Mr. N’s odds had increased from 25% to 75% overnight.

At the lunch hour on the second day of trial I approached the Crown attorney, and had a very frank discussion about her case, and the difficulties the Crown now faced. Ultimately, I was able to convince the Crown to accept a plea of guilty to the provincial offence (not a criminal charge) of careless driving, and Mr. N’s criminal charges of impaired driving and operate over 80 were stayed (sort of like a withdrawal of the charge of an acquittal).

Needless to say Mr. N was delighted.