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Client charged with Refuse to provide a roadside sample withdrawn on the day of trial. The client was driving with his wife after a dinner at a restaurant. While driving P.O. and his wife got into an argument. The wife called 911 while in the car and said that her husband, P.O., had broke her cell phone and was driving intoxicated. P.O. pulled the car over and left the car. A few minutes later OPP officers attended the scene. The client was walking back to his car when a police officer put her arm out and blocked O.P. from approaching his car and or his wife. The officer then asked questions of the client about the “domestic” dispute. While responding to the officer, P.O. allegedly was asked if he had consumed any alcohol. The police officer then demanded a roadside breath sample. P.O. had taken out his phone and was recording the interaction with the officer. The client told the officer he had only two glasses of wine two hours prior to driving and there was no basis for the officer to request a sample. The client was charged with Refuse Roadside Sample. Police seized the phone. Defence lawyer Joseph Neuberger demanded the forensic analysis of the phone recording. In addition Joseph Neuberger filed a Charter Application that the client was detained by the officer on the alleged domestic allegation and not afforded his section 10 (b) right to counsel and as such the demand and refuse was in breach of his rights and the evidence had to be excluded. In addition the police produced less than 30 days from trial a report that the cell phone had no recording. Defence lawyer Joseph Neuberger demanded the return of the phone for a defence forensic review. As a result of the potential breaches of the rights of P.O., the charge was dismissed.
