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Charge of Impaired by Drug dismissed and charge of Refuse Sample withdrawn at trial. S.A. was arrested after an accident and charged with impaired by alcohol. When searching the client’s car, the officer noted an odour of burnt marijuana, and contacted a DRE officer to be available at the station. While at the station S.A. registered 0 on the intoxilyzer test. The arresting officer the re-arrested S.A. for impaired by drug. The DRE officer proceeded with a drug recognition evaluation. S.A. failed. A demand was made for a sample of his saliva for testing. S.A. refused. S.A. was thus also charged with Refuse Sample. Defence lawyer Joseph Neuberger was retained. Joseph Neuberger brought a Charter Application asserting violations of section 8 and 9 of the Charter, such that the demand for the sample to establish that there were drugs in S.A.’s body, was made one hour and 40 minutes after the initial arrest and that the demand was thus not made “as soon as practicable”. Defence lawyer Joseph Neuberger asserted that at a minimum the officer suspected that S.A. could have been impaired by drug as the officer found marijuana and an odour of burnt marijuana in the car. The arrest ought to have been made at the scene and the demand made at that time as well. At trial there was no evidence to establish impairment by drug, and S.A. was found not guilty of the offence. The Crown conceded the violation on the Charter Application and withdrew the Refuse charge.
