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There are many instances in which a police officer must rely on his or her instincts. However, there are limits to what an officer may demand of a citizen, regardless of what those instincts may be saying. In a recent court case, an Ontario man argued his rights were violated when an officer ordered him to take a breath test, despite an absence of any visible signs of impaired driving.
On a June 2013 evening, a man was stopped by police as part of a routine traffic stop. When asked if he’d been drinking, the man replied that he had, but his last drink had been 10 hours earlier. The court heard the motorist had been polite and cooperative throughout the stop. Alleging he could smell alcohol on the man’s breath, the officer asked for a breath test. The man failed the test, and tests run later at a police station revealed his blood alcohol level to be over the legal limit.
When the case came to trial in 2014, the accused argued there had been no grounds for administering a breath test and that the evidence from that test should be thrown out. The judge agreed and declared the test had violated the man’s charter rights. The evidence was omitted and the man was acquitted.
An appeal by the Crown to the Superior Court in early 2016 failed to overturn the acquittal. The case was then brought to the Ontario Court of Appeal. In the court’s ruling, they determined that even had the man’s last drink been 10 hours prior, that did not completely rule out the possibility of being impaired. The breath test was deemed a reasonable demand, the acquittal was overturned, and the man was ordered to go to trial once more.
The result of the appeal changes the playing field for those suspected of impaired driving in this province, with the broadening of the definition of “reasonable grounds.” Regardless, a person accused of driving drunk or high should still consider reaching out to an experienced attorney. He or she may be able to offer the best chance of a strong defence.
Source: canoe.com, “Smell of alcohol enough for breath sample: Ont. Court of Appeal“, Colin Perkel, Nov. 18, 2016
