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City: Lindsay, Ontario
Year: 2019
Our Client: Mr. A.
Charge(s): Over 80
Lawyer:  Dan Lemaire
Dan Lemaire - Criminal Lawyer
Learn About Dan Lemaire

Case Study: Over 80

Background Allegations

Mr. A. was pulled over on Highway 7 after police noted some erratic driving. Mr. A. was given a roadside breath alcohol screening test, which he failed. The client was arrested and taken back to the OPP detachment for further breath testing. After breath testing, the client was placed in a cell to await release for several hours. The client’s results were allegedly in excess of the legal limit.

Crown Position

Plead guilty for a $1,000 fine and a 1 year driving prohibition.


Avoid a criminal record and implications for Mr. A.’s driver’s licence – which he needed for his job.


The Strategy

The Crown would not alter their position pre-trial. Mr. A. set his matter for trial. At trial, Mr. Lemaire advanced an “over-holding” argument. This arises where a an arrestee is held in police custody longer than is necessary, thereby violating one’s rights under section 9 of the Charter to be free from arbitrary (long) detention. The police must release an arrestee “as soon as practicable” unless there are compelling reasons not to do so.



Through cross-examination at trial, Mr. Lemaire was able to get the police officers to admit that the client was not released as soon as practicable and was therefore arbitrarily detained. Mid-trial, the Crown offered a plea to the charge of careless driving under the Highway Traffic Act. Instead of the driving prohibition, criminal record, and $1,000 fine that would have followed with a Criminal Code conviction, our client received a reduced fine and a period of probation. Most importantly, our client avoided a criminal record and losing his driver’s licence.

Please Note: Past results not predictive of future results.

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