Failed breath test won’t guarantee an impaired driving conviction

Failed breath test won’t guarantee an impaired driving conviction

On behalf of Neuberger & Partners LLP posted in Drunk Driving on Friday March 17, 2017.

Failing a roadside breath test is a frightening prospect. A conviction for impaired driving may mean a fine, a lost licence, and perhaps other penalties. Those are serious punishments for the average citizen. However, there have been many cases wherein failed tests did not lead to convictions. A recent example happened in Ontario when a woman’s case was dismissed for a Charter violation.

After failing a roadside test, the woman was taken to a police station for further processing. An officer asked her to stand on a scale so her weight could be ascertained. It was this part of the process that was singled out in court.

A Superior Court Justice upheld a lower court ruling that asking for her weight was a violation of her privacy under the Charter of Rights and Freedoms. With the precedent set, asking for a person’s weight is now in the same category as a request for a DNA sample or bodily fluids, meaning as an intrusive request, it can be refused. This is a new addition to the rights of the accused, which include the right to silence, and the right to avoid self-incrimination.

An impaired driving charge does not necessarily mean an impaired driving conviction will soon follow. Anyone accused of a crime in Ontario has rights and freedoms that may not be violated during the process of investigation and arrest. An experienced defence lawyer will scrutinize a person’s case for such violations, or other irregularities, which may then be used to defend the accused in court.

Source:, “Drunk driving charges: The weight of evidence, and language difficulties“, Marc Montgomery, March 9, 2017


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